303 Creative, LLC v. Elenis
In 2008, Colorado amended the Colorado Anti-Discrimination Act (CADA) to expand its anti-discrimination protections to members of the LGBTQ community. In 2016, 303 Creative, a company that wants to offer wedding web design services, along with its owner, filed a pre-enforcement challenge to the law in federal court. They object to same-sex marriage and argue that CADA compels their speech in violation of the First Amendment by requiring the company to offer the same services to same-sex couples that it offers to different-sex couples.
The district court concluded that applying CADA to 303 Creative is constitutional, and the Court of Appeals for the Tenth Circuit affirmed. 303 Creative then asked the U.S. Supreme Court to hear the case, and it agreed to do so.
On August 19, 2022, CAC filed a brief on behalf of First Amendment Scholars in support of Respondents. Our brief makes three main arguments.
First, the brief argues that the First Amendment does not give—and has never been understood to give—commercial businesses the right to violate generally applicable public accommodations laws that prohibit discrimination. As the brief explains, the First Amendment does not apply with the same force when the government enacts generally applicable, content-neutral rules that regulate conduct, not speech.
Second, the brief explains that the Supreme Court has repeatedly upheld public accommodations laws against First Amendment challenges. Public accommodations laws have existed for centuries, and the Court has consistently held that such laws pose no First Amendment problems, even for “expressive” entities like private schools, private clubs, and law firms. Petitioners offer no principled reason why they should be exempted from anti-discrimination laws that other expressive entities have long been subject to.
Third, the brief discusses how Petitioners’ theory, if accepted, would inevitably corrode nondiscrimination protections that are applicable to all places of public accommodation and all manner of protected characteristics. Permitting any business to refuse service to any client any time the business offers “expressive” services would severely undermine anti-discrimination laws. For example, under Petitioners’ theory, a web designer who believes interracial marriage is wrong could refuse to serve an interracial couple, or a vendor who opposes interfaith marriages could refuse to serve an interfaith couple. And the consequences of accepting Petitioners’ theory would not be limited to weddings and marriages. A web designer could refuse to design a website celebrating a female CEO’s retirement if he believed women should stay home and raise children. Or a furniture maker could refuse to serve couples of a particular faith, such as Christian couples. If merely serving an individual implies an expression of views about the individual’s core traits like race, religion, or sexual orientation, any business that offers services involving customization could refuse to serve any member of the public on that basis and argue that such discrimination is freedom of expression. The First Amendment does not require that result.
August 19, 2022
CAC files amicus curiae brief on behalf of First Amendment ScholarsSup. Ct. Amicus Br.