The Supreme Court may finally stop dodging the question of when it violates the First Amendment to force someone to perform a business service on behalf of a cause they wish not to support. On February 22, the Court granted certiorari in 303 Creative LLC v. Elenis, the latest case of many in which vendors of wedding‐support services — in this case a Colorado website designer — would prefer to turn down business for same‐sex weddings, but are compelled to do so nonetheless by states applying public‐accommodation provisions of anti‐discrimination law .
Some headlines have inaccurately couched the case as involving religious rights, but the Court agreed to rule on one question only: “Whether applying a public‐accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.” A win for 303 Creative owner Lorie Smith would therefore be a win for conscience rights generally, whether or not rooted in religious belief.
As we’ve seen in the past, many of these wedding‐services disputes lie along a continuum between services that are more like expression and those that are more like conventional, non‐expressive services such as folding‐chair or limousine rental. Preparing celebratory videos or photographic portfolios plainly fall more toward the expression end of the continuum, but what about invitation calligraphy? Flower arranging? Does it matter whether cakes are decorated with words and symbols, or not? These questions have at times divided reasonable minds, and quite possibly would still divide the Court.
What makes this case simpler in some ways is that the Tenth Circuit agreed that Smith’s web design service amounted to speech. It simply found that she had no First Amendment right in this situation not to have her speech compelled (or silenced entirely, were she to depart the business). While that’s a popular position in some progressive quarters, it’s less clear that it can muster many votes on today’s Court. Even Justices from the liberal wing have suggested that some services are bound up plainly enough with speech and expression for them to recognize a First Amendment right to say no. (By the same token, most if not all of the conservative Justices would probably decline to accord First Amendment protection to plainly non‐expressive lines of business. The Court is not as polarized as this as are many of the commentators.)
As my colleagues wrote in October when Cato joined the Hamilton Lincoln Law Institute, UCLA law professor Eugene Volokh, and Southern Methodist University law professor Dale Carpenter in asking for certiorari:
[The appeals court] acknowledged that Colorado’s law would compel her to create a message in violation of her conscience.
Regardless, in the Tenth Circuit, Colorado may force Smith to speak. The court characterized her control over her “custom and unique” product as having “monopolistic” control over the “market” of her specific designs. Refusing to provide her services to some people would, definitionally then, result in those people being denied access to an entire “market.” And access to that “market,” the court ruled, is more important than one person’s First Amendment right not to speak.
Cato has advocated that, if states are involved in the marriage business, they should extend marital licenses to same‐sex couples. But we also advocate for private individuals’ and businesses’ free speech rights in this context. … (We had also joined Prof. Volokh on a brief in the Tenth Circuit, as well as on a brief in support of videographers fighting a similar Minnesota law in the Eighth Circuit.)
The First Amendment protects both the right to speak and not to speak.
Let’s hope the Supreme Court uses this case to unite at long last behind a strong decision favoring conscience.
