You (Might) Have the Right to Remain Silent: Supreme Court Set to Decide Whether Public Accommodation Law Can Compel Speech

*Nicholas Balzano

I. INTRODUCTION

The Supreme Court’s 2021-2022 term was filled with widespread media coverage, particularly concerning the Court’s decisions in Dobbs v. Jackson and NYSRPA v. Bruen.[1] While the 2021-2022 term has ended, another case with the potential to create a new precedent undoing years of previous precedent looms on the horizon.[2] In 303 Creative LLC v. Elenis, the Court will answer the question of whether speech can be compelled through the application of a public-accommodation law.[3] The case deals with a Colorado website owner refusing to create websites that celebrate same-sex marriages.[4] The Court will decide whether the owner’s refusal is permissible given Colorado’s Anti-Discrimination Act (CADA) that “restricts a public accommodation’s ability to refuse to provide services based on a customer’s identity.”[5]

The Tenth Circuit ruled in favor of Colorado and found that, while the Appellant’s right to free speech is compelling, Colorado’s interest in protecting its citizens from discrimination is more essential.[6] The Supreme Court granted certiorari to address only the issue of compelled speech[7] during their 2022-2023 term.[8]

II. THE ORIGINS OF 303 CREATIVE LLC V. ELENIS

This case originated in 2017, when Lorie Smith (Smith) and her website company, 303 Creative, LLC, brought a pre-enforcement challenge to CADA.[9] At the time of the lawsuit, Smith had yet to offer wedding-related services on her website; however, she intended to do so only for opposite-sex marriages.[10] This proposed action was potentially at odds with CADA and Smith wanted the issue decided before acting.[11]

Initially, the United States District Court of Colorado “declined to rule on the merits of the Appellants’ Communication Clause challenges, [sic] because Masterpiece Cakeshop was then pending before the United States Supreme Court.”[12] After the Court decided Masterpiece Cakeshop, the district court ruled in favor of Colorado[13] and “assume[d] the constitutionality of the Accommodation Clause.”[14] Appellants appealed this decision to the Tenth Circuit, which found that while the Appellant’s free speech is compelling, Colorado’s interest to protect its citizens from discrimination is significantly more essential.[15] The court held that “CADA satisfies strict scrutiny, and thus permissibly compels Appellants’ speech.”[16] CADA satisfied strict scrutiny because the court found that it was both a neutral law and generally applicable, allowing the law to satisfy the heightened standard.[17]

This type of case has been decided differently in the various circuits.[18] In the Eighth Circuit, a public accommodation law that would have required videographers to make videos for only opposite-sex marriages was struck down, which is in direct conflict with the Tenth Circuit opinion in 303 Creative LLC. [19] Due to the existing circuit split regarding how to address free speech and public accommodation laws, the Supreme Court granted certiorari to decide this issue.[20]

III. HOW MIGHT THE COURT DECIDE THE ISSUE?

The issue of whether public accommodation laws can compel speech has been unanswered for years, as the Court left the question for “further elaboration in the courts” in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n.[21] Given the Court’s highly conservative makeup and its recent controversial decisions,[22] pundits expect that the Court will side in favor of Smith,[23] either by finding CADA unconstitutional or by implementing a narrower “Masterpiece-like procedural approach[,]” where the Court would issue only a case-specific ruling.[24] However, just how far the Court is willing to go if they opt for the former approach remains unclear.[25] The Court has been known to decide issues dealing with the right of free speech in a “far bolder” manner than “in the area of religion” [26] and with 303 Creative, LLC docketed to address only the issue of free speech, it may indicate that the Court is “considering a more sweeping ruling.”[27] If the Court finds CADA to be unconstitutional, it could provide the Court with the potential to “carve out a business rule exception to LGBTQ anti-discrimination rules based on religious persons’ right to free speech[,]”[28] which would allow businesses the ability to discriminate based upon sexual orientation.[29]

IV. HOW COULD THE DECISION IN 303 CREATIVE, LLC AFFECT BUSINESSES?

If the Court were to favor Smith and find that she cannot be compelled to provide services to same-sex couples, this holding could produce a dangerous precedent for business that reflects pre-Civil Rights Era litigation.[30] For years, there has been a “settled social consensus” “that businesses cannot claim constitutional cover from public accommodation laws.”[31] The possibility of a decision allowing Smith to refuse services to same-sex married couples may have larger ramifications. Such an outcome could permit “[c]hefs, printers, florists, tailors, jewelers, barbers, bartenders, and bakers [to] refuse to provide wedding-related services to gays and lesbians on the grounds that their conscience precludes them from applying their skills to enhance their wedding celebration.”[32] Allowing businesses to discriminate under the guise of free speech has the potential to do irreparable harm to the LGBTQ community[33] and could make it substantially more difficult to “obtain services that can be classified as speech.”[34] This decision would change the landscape of how members of the LGBTQ community interact with businesses and would force members of that community to forego certain services due to animus towards them, a clear mirror of the pre-Civil Rights era. [35]

A decision in favor of Smith would allow businesses providing goods and services that could be classified as “speech” to be run “in a way that allows them not to service entire, large categories of people based on their religious views.”[36] Many businesses already comply with the anti-discrimination laws in their state,[37] so the effect that a decision in favor of Smith would have on companies would likely be state-specific.[38]

V. CONCLUSION

As the 2022-2023 Supreme Court session will begin in October,[39] the Court is faced with yet another case that will have lasting ramifications.[40] The Court will deliver an opinion on 303 Creative LLC that has the potential to either expand the power of free speech to cover discrimination or to provide the LGBTQIA+ community with adequate protection against discrimination.[41] The potential dangerous effects that a decision in favor of Smith may have cannot be understated. While free speech is compelling, protecting the LGBTQIA+ community from discrimination under the guise of free speech remains more important. It is essential that society moves forward toward acceptance, not backwards.

*Nicholas Balzano is a second-year day student at the University of Baltimore School of Law, where he is a Staff Editor for Law Review, a member of the Royal Graham Shannonhouse III Honor Society, and a member of the Honor Board. Prior to law school, Nicholas worked as a law clerk at Atkinson Law. During his 1L summer, Nicholas interned with the Honorable Audrey J.S. Carrión, Administrative Judge and Chief Judge for the Circuit Court for Baltimore City.

Photo Credit: Ted Eytan (licensed under the Creative Commons Attribution-Share Alike 2.0 Generic license)

[1] See Brydon Black, Supreme Court Roundup: The Biggest Decisions From This Past Historic Session, Arbiter (Aug. 20, 2022), https://arbiteronline.com/2022/08/20/supreme-court-roundup-the-biggest-decisions-from-this-past-historic-session/.

[2] See Hila Keren, The Alarming Legal Strategy Behind a SCOTUS Case That Could Undo Decades of Civil Rights Protections, Slate (Mar. 9, 2022), https://slate.com/news-and-politics/2022/03/supreme-court-303-creative-coordinated-anti-lgbt-legal-strategy.html.

[3] 303 Creative LLC v. Elenis, 142 S. Ct. 1106, 1106 (2022) (mem).

[4] 303 Creative LLC v. Elenis, 6 F.4th 1160, 1169–70 (10th Cir. 2021), cert. granted in part, 142 S. Ct. 1106 (2022) (mem).

[5] Id.

[6] See Elenis, 6 F.4th 1160 at 1190.

[7] See Elenis, 142 S. Ct. at 1106.

[8] See Supreme Court Cases, October Term 2022-2023, Ballotpedia, https://ballotpedia.org/Supreme_Court_cases,_October_term_2022-2023#:~:text=The%202022%2D2023%20term%20of,here%20as%20it%20becomes%20availabe (last visited Aug. 23, 2022).

[9] See Elenis, 6 F.4th 1160 at 1190.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id. at 1183.

[18] See id. at 1160; see also Telescope Media Group v. Lucero, 936 F.3d 740 (8th Cir. 2019).

[19] Id.

[20] Id.

[21] See Masterpiece Cakeshop, Ltd. v. Colorado Civ. Rights Comm’n., 138 S. Ct. 1719, 1732 (2018); see also Adam Liptak, Supreme Court to Hear Case of Web Designer Who Objects to Same-Sex Marriage, N.Y. Times (Feb. 22, 2022), https://www.nytimes.com/2022/02/22/us/colorado-supreme-court-same-sex-marriage.html.

[22] See Nina Totenberg, The Supreme Court is the Most Conservative in 90 Years, NPR (July 5, 2022), https://www.npr.org/2022/07/05/1109444617/the-supreme-court-conservative; see also Andrew Koppelman, The Dangerous 303 Creative Case, Canopy F. (Jun. 15, 2022), https://canopyforum.org/2022/06/15/the-dangerous-303-creative-case/.

[23] See Judy Greenwald, Supreme Court Expected to Favor Business in Bias Case, but Likely Effect of Ruling Unclear, Bus. Ins. (Apr. 1, 2022), https://www.businessinsurance.com/article/20220401/NEWS06/912348705/US-Supreme-Court-expected-to-favor-business-in-bias-case,-but-likely-effect-of-ruling-unclear; see also Evan Gerstmann, Supreme Court Will Be Making a Major Ruling on Free Speech and the Rights of Sexual Minorities, Forbes (Mar. 27, 2022), https://www.forbes.com/sites/evangerstmann/2022/03/27/supreme-court-will-be-making-a-major-ruling-on-free-speech-and-the-rights-of-sexual-minorities/?sh=71120b01be10; see also Koppelman, supra note 22.

[24] See Greenwald, supra note 23; see also Coley et al., Despite Public Opposition, the Supreme Court May Fundamentally Change the Trajectory of LGBTQ Rights, PRRI (Apr. 1, 2022), https://www.prri.org/spotlight/despite-public-opposition-the-supreme-court-may-fundamentally-change-the-trajectory-of-lgbtq-rights/.

[25] See Greenwald, supra note 23.

[26] See Gerstmann, supra note 23.

[27] Id.

[28] See Greenwald, supra note 23.

[29] See Amanda Robert, SCOTUS Should Uphold Long-Standing Precedent in Case Involving Objection to Same-Sex Marriage, ABA says, ABA J. (Aug. 22, 2022), https://www.abajournal.com/web/article/scotus-should-uphold–longstanding-precedent-in-case-involving-objection-to-same-sex-marriage-aba-says.

[30] Id.

[31] Id.

[32] Id.

[33] See Coley et al., supra note 24.