As of this past June, private businesses are legally permitted to openly deny their goods or services to individuals of certain demographics. The agenda to drag the free world to a less just past is well on its way. The malicious campaign’s most recent accomplishment: 303 Creative LLC v. Elenis case’s majority opinion. The recent Supreme Court decision was a gross misunderstanding of the Constitution and will lead to devastating consequences.
303 Creative LLC founder Lorie Smith brought the case to regional courts over Colorado’s Accommodations Clause. The clause states public accommodations or markets offering up a good or service for the betterment of the consumer market cannot advertise refusal of those services based on the consumer’s identity, including race and sexual orientation. The case itself had shaky standing before the court. Unlike a vast majority of considered cases accepted to the highest court in the United States, the grounds for the case being filed haven’t yet occurred. That is, the case is a hypothetical alleged breach of Smith’s rights. Smith, based on observed precedent of enforcement of the Colorado Anti-Discrimination Act (CADA), was worried she would be required by the state to provide her custom wedding website designs for same-sex couples. Despite the hypothetical standing, the court accepted this as grounds for the case and agreed to listen to it this past year.
Despite the petitioner’s lengthy discussion of the role of wedding websites in spreading the bidding of the church and God in their filed brief, the case itself was concerning only the application of the freedom of speech and not the freedom of religion, the bounds of which had already been considered back in 2018 in Masterpiece Cakeshop v. Colorado Civil Rights Commission.
The majority opinion authored by Justice Gorsuch incorrectly identified Smith’s work as “pure speech,” that is, speech directly reflecting the thoughts and sentiments of Smith. If this identification was correct, Gorsuch would be absolutely correct in his corresponding claim that, by regulating her business, the government was “compelling speech,” dictating what free citizens could and could not say in alignment with the government’s values. But this definition is not rooted in reality. Smith’s production of custom websites is undeniably not her own pure speech simply by taking into account the commercial nature of her work. Her speech is merely “commercial speech”—the by-product of an exchange of goods she herself is offering. This form of speech is consistently held with a lower weight than pure speech in the court when considering the first amendment.
This difference is momentous. The hinge of the case decision rested on the debate of whether Colorado’s law was an incidental or direct burden on speech. In other words, is the government’s regulation directly changing or enforcing a message on Smith or is the shift in messaging merely an effect of a regulation on a consumer good? The case was made multiple times in both the Solicitor General and the State of Colorado’s briefs that, given the customizable nature of the good, the regulation must be an incidental burden. This distinction makes sense; if a birthday card company just sells blank cards, it would be a direct burden for the government to require them to sell cards with a specific family on it. But if the birthday card company is directly advertising and selling customized birthday cards, the government would be within their right to require the store to sell birthday cards to Black families with their portrait on them. This is because the restriction is not applied to the message of the company but rather the consumer base the company is implored to accept. It’s true that this might enforce a secondary message on the company, but the burden would be incidental, not direct.
Ultimately, the case comes down to this idea: Smith is offering up, by her own choice, a custom website. Therefore she should not be able to pick and choose who demands that good she is publicly offering. By including a gay couple in a wedding website, Gorsuch rules, Smith is publicly announcing her support for gay marriage. This is the heart of what Gorsuch was misled about. The effect of considering serving a customer a good you are offering “pure speech” is devastating. By the same token, an employee at CustomInk could readily deny making a pun-filled Bar Mitzvah T-shirt to be distributed at World Café Live on the basis that it would somehow demonstrate that they, a devout Christain, supported Jewish adulthood. Similarly, and as brought up by Justice Sotomayor in her dissent, it allows for a senior portrait photographer in the LM courtyard to openly deny every Black student a photo on the basis that it would display their own personal sentiments about race of which they do not align themselves personally. The fundamental flaw with the court decision is that it conflates identity and belief; that by providing a good to a person of a given identity the person is making a statement or publicizing a message.
The decision is more than just flawed, it’s loose with its application. The petitioners claim that the website design itself is expressive by nature, demonstrating a belief or announcing support. But the bounds to this same support seem ambiguous; what does it mean for a good or service to be expressive or artistic? The petitioners put forth examples of wedding services that wouldn’t have this same expressive weight. But take, for instance, a company that supplies chair rentals for wedding venues. Though many would initially recognize that this is an objective practice and in no way could result in a burden on their message, it becomes complex when considering abstractions like “art.” If the supplier had to choose a set up, would that be considered art? Would their input on which color of padding or which stain of wood elicit a reflection of celebration of a Hindu or Jewish wedding the business would rather not support? Such is the claim with Lorie Smith who speaks to her personal input and touches on the websites she now can deny any same-sex couples under the name of “art.”
Many defenders of 303 Creative’s win have turned to the past precedent relied upon in the decision. Although the Masterpiece Cakeshop case has no bearing given its overtly different consideration, Dale and Hurley v. Irish-American Gay, Lesbian & Bisexual Group, two other cases were mentioned again and again in the petitioner’s brief as precedent for a verdict in their favor. In Dale, it was ruled that a Boy Scouts Troop was valid in their decision to omit an openly gay troop leader from being their troop representative. Similarly, in Hurley, it was ruled that the state of Massachusetts could not force a group of Irish Americans to accept a pride float in their St. Patrick’s Day Parade. Both cases, however, are a clear demonstration of pure speech. The accommodation being offered to the public for both groups was their message. For the Boy Scouts, it was their values and ideals whereas for the parade, it was their celebration of the holiday. In neither was there a primary service for which a message merely was attached to, as was the case for Smith. By regulating or forcing a different ideology onto the Boy Scouts or the parade, the government would be infringing directly on their rights. However, in both cases, anyone was able to “purchase” or take in the public accommodations the two groups were selling. Gay boys were still permitted to join the troup and gay patrons were permitted to attend or be in the parade. Where Smith differs is that her product isn’t an image, it’s a custom website. And now, not just anyone can purchase her product, but only straight couples. That is the definition of an overturning of precedent.
Further still, this same court ruled in 2006 in Rumsfeld v. Forum for Academic and Institutional Rights that if an opportunity or good is being offered to the public, it must be offered to everyone regardless of their message. Private colleges and universities began denying military recruiters the opportunity to access their students for promotion following their much contested anti-LGBTQ+ policies. The private schools claimed that they did not want to allow recruitment opportunities to an organization whose message went against their beliefs as an institution. The Supreme Court ruled, however, that the availability of a service to a group whose ideals differ from the institution’s own does not constitute a burden on the institution’s message nor does it reflect support on behalf of the school. The same logic should be applied to Smith. If she offers the service of a website to all, the identity or ideology of a customer simply does not reflect onto Smith herself, and requiring her to treat all customers equally is not a burden on her speech.
