Free Speech, Sex Discrimination, and Religious Employers, Part II

Religious freedom and free speech have come to the forefront in recent court decisions. You can read our first post on free speech, sex discrimination, and religious employers here, where we evaluated the Braidwood Management v. EEOC Fifth Circuit Court case and the protections religious organizations may enjoy.

Not long after Braidwood, the Supreme Court ruled in 303 Creative LLC v. Elenis that “the First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees.”¹ This holding of this case, unlike Braidwood, applies to the entire country.

303 Creative LLC v. Elenis

The case began when Lorie Smith, who is a Christian and an owner of a graphic/website design business, wanted to expand and offer wedding websites. But due to her personal beliefs, she wanted to make this offering available only to heterosexual couples and she wanted to include that information on her website. However, Colorado’s public accommodations law prohibits businesses serving the public from discriminating against LGBTQ people or giving notice of intent to discriminate.²

Both the state of Colorado and Smith agreed that her wedding websites would constitute expressive activity. In some situations, there might be difficulty in determining “what qualifies as expressive activity protected by the First Amendment,” but Smith’s case wasn’t one of them.

Smith argued that Colorado’s anti-discrimination law infringed on her rights, as she was not able to provide services to same-sex couples due to her sincerely held Christian beliefs. The Supreme Court agreed with her, but on the basis of free speech rather than religious freedom.

“Disagreement isn’t discrimination, and the government can’t mislabel speech as discrimination to censor it,” said Kristen Waggoner of Alliance Defending Freedom and counsel for 303 Creative LLC.

You can find the full opinion here.

Understanding the implications this case has for businesses

Faith convictions often play a central role in business practices. Business owners bring personal values and beliefs to their work. The question is whether business owners should be required to have their business participate in certain activities that conflict with their religious beliefs, and whether they can be barred from publicly announcing their beliefs. The position of the state of Colorado was that business owners could not hold openly or promote publicly any values that violated Colorado’s anti-discrimination stance. Business owners who did not agree would then have to compromise the sincerity of their convictions and their integrity.

The case was about balancing the principles of individual expression against the societal push toward broad non-discrimination rights. This involves respecting the rights and dignity of all individuals involved.

The 303 Creative case, since it came down in a very different place from the state of Colorado, will have a long-lasting impact beyond the case itself. It will influence how laws are interpreted and applied in similar situations and will spark broader discussions about the balance between individual rights and societal norms.

Business owners might not have to abide by anti-discrimination laws if they are engaging in an expressive activity and adhering to the anti-discrimination standards would infringe upon their freedom of speech. The Court did not precisely define “expressive activity,” so the lower courts will have to evaluate what qualifies as speech in cases such as Lorie Smith’s.

Supreme Court Justice Neil Gorsuch wrote the 6-3 opinion, concluding that “[t]he First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands.”³

What is an expressive activity or expressive conduct?

Since this case is about expressive activity, defining that becomes important. Expressive activities refer to all forms of non-commercial speech that are protected by the First Amendment of the U.S. Constitution. Expressive activities include peaceful assemblies, speeches, protests, picketing, leafleting, circulating petitions, distributing literature, and more.

When determining whether expressive conduct should be protected under the First Amendment, courts often apply a two-part test developed in Spence v. Washington and Texas v. Johnson:

1. The speaker must intend to convey a message; and
2. The message conveyed must be one likely to be understood by the listeners.

When there is uncertainty or ambiguity on whether something is considered an expressive activity or whether certain expressive conduct deserves First Amendment protection, the courts will decide.

In Lorie Smith’s case, the State of Colorado argued that her speech involved “only the sale of an ordinary commercial product,” which would not award her any protection; it later stipulated that rather, she “intends to create ‘customized and tailored’ speech for each couple.”⁴ The Court found that Smith’s websites constituted pure speech rather than commercial conduct.

How do the 303 Creative and Braidwood Cases Differ?

The Braidwood case dealt with religious freedom, but the 303 Creative case was decided based on free speech. In Braidwood, the company sought exemption from following the anti-discrimination laws because the religious beliefs of the owners were contradictory; Braidwood was protected under RFRA. In 303 Creative, it was found that creating a website constituted speech and the First Amendment protected Lorie Smith. An important distinction between the two is that Braidwood involved religious and constitutional exemptions and defenses in the context of employment discrimination while 303 Creative involved public accommodations discrimination.

The ruling in 303 Creative is much broader in some ways. Because it applies to all speech, it applies in all contexts, including when RFRA doesn’t apply (such as state law cases). But it also applies only to speech, not to forms of personal or religious expression that are not speech.

The Braidwood case is ongoing and the Courts may have additional clarifications in the months and years to come.

Conclusion

The 303 Creative ruling supports free speech and also religious freedom to the extent that speech is religious. Further litigation will likely center around what is expressive speech. For example, does a gender transition cake that is pink on the outside and blue on the inside convey a message that is likely to be understood as such as by hearers/viewers?

Speaking of cakes, the Masterpiece Cakeshop case is still pending in the Colorado Supreme Court. The case involves a Christian owner of a cakeshop who declined to make a custom wedding cake celebrating a same-sex wedding because doing so would violate his beliefs. The Colorado Anti-Discrimination Act (CADA) prohibits businesses from discriminating, including based on sexual orientation. The Supreme Court ruled in Philips’ favor in 2018, but not because his free exercise of religion or freedom of speech under the First Amendment were violated; rather, because the Civil Rights Commission of Colorado demonstrated “impermissible hostility toward the sincere religious beliefs that motivated his objection.”⁵ While the Supreme Court reversed the Court of Appeals’ ruling, the Colorado Court of Appeals has once again found Philips in violation of CADA, this time for refusing to create a cake for a transgender person as it would violate his beliefs. The 303 Creative case might affect its outcome as well as other professionals engaging in expressive services and speech in the future.

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¹ 303 Creative LLC v. Elenis - SCOTUSblog

² Discrimination | Colorado Civil Rights Division

³ 21-476 303 Creative LLC v. Elenis (06/30/2023) (adflegal.org)

⁴ Id. at 16

⁵ 16-111 Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n (06/04/2018) (supremecourt.gov)

Featured Image by Rebecca Sidebotham.