Colorado designer does not have to make websites for same-sex couples, U.S. Supreme Court rules

In a statement, the Philadelphia LGBTQ Bar Association denounced the ruling, calling it ‘dangerous’

By: - June 30, 2023 11:57 am
Lorie Smith, the owner of 303 Creative, a website design company in Colorado, speaks with supporters outside of the U.S. Supreme Court Building on Dec. 5, 2022, in Washington, DC. The U.S. Supreme Court ruled in her favor Friday. (Anna Moneymaker/Getty Images)

Lorie Smith, the owner of 303 Creative, a website design company in Colorado, speaks with supporters outside of the U.S. Supreme Court Building on December 05, 2022 in Washington, DC. The U.S. Supreme Court heard oral arguments from cases including one involving Smith, who refuses to create websites for same-sex weddings despite a state anti-discrimination law. (Photo by Anna Moneymaker/Getty Images)

(*This developing story was updated at 12:48 p.m. on Friday, June 30, 2023, with additional reporting.)

Colorado cannot compel a website designer to create custom sites for same-sex couples, the U.S. Supreme Court ruled in an opinion released Friday.

The 6-3 ruling, written by Justice Neil Gorsuch, came in 303 Creative v. Elenis. Plaintiff Lorie Smith argued the Colorado Anti-Discrimination Act, which prohibits discrimination based on sexual orientation, violates her constitutional right to free speech.  She believes, based on her religion, that marriage should be between one man and one woman, and therefore she does not want to create wedding websites that feature her own original content for same-sex couples.

Aubrey Elenis, who is named as a defendant, is the director of the Colorado Civil Rights Division.

“The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees,” the court said.

Smith argued that creating the kind of websites she envisions is a form of speech, while the defendants argued it’s a service, and therefore “public accommodation” laws apply. Smith’s team said during oral arguments in December that the anti-discrimination law constitutes compelled speech in Smith’s case, meaning she would be forced to convey messages against her personal beliefs.

The court’s opinion says that while many states’ public accommodations laws have extended to cover most forms of business operations, “no public accommodations law is immune from the demands of the Constitution,” and therefore cannot compel speech.

“In this case, Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance,” the court said. “As this Court has long held, the opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong.”

Gorsuch was joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh and Amy Coney Barrett in the majority opinion. Justice Sonia Sotomayor wrote a dissenting opinion, joined by Justices Elena Kagan and Ketanji Brown Jackson.

“As I will explain, the law in question targets conduct, not speech, for regulation, and the act of discrimination has never constituted protected expression under the First Amendment,” Sotomayor wrote in her dissent. “Our Constitution contains no right to refuse service to a disfavored group.”

This is the second case from Colorado related to LGBTQ discrimination that made its way to the Supreme Court. The first was Masterpiece Cakeshop v. Colorado Civil Rights Commission, which involved a cake shop owner who denied a same-sex couple a wedding cake based on religious beliefs. The Masterpiece case focused on the First Amendment’s freedom of religion clause, while the 303 Creative case focused on the free speech clause.

Colorado Attorney General Phil Wesier previously said the 303 Creative case is more complicated, because Smith’s company has not actually denied any same-sex couples a website yet. Colorado’s argument in the case was that if Smith wanted to sell websites to some people, she must offer them to all people.

In a statement, the Philadelphia LGBTQ Bar Association denounced the ruling, calling it “dangerous.”

“This decision sets a dangerous precedent that could open the door to more discrimination against  members of the LGBTQ+ community, particularly in the areas of employment, housing, and public  accommodations,”  the organization’s chairperson, Kevin Levy, said. “And it  isn’t lost on us that this decision comes during LGBTQ+ Pride Month, a time where the LGBTQ+  community and our allies come together to celebrate our community’s achievements and continue  to wage battles for full equality under the law.” 

In a statement, the Pennsylvania’s Legislature’s LGBTQ+ Equality Caucus sharply criticized the ruling.

“Whether it’s a bakery or a media production company, no business should possess the right to refuse services to individuals based on sexual identity. Simultaneously, requiring a business that serves the public to offer services equally to members of the public does not violate their first amendment rights,” the caucus said in its statement.

“We vehemently denounce this decision by the Supreme Court of the United States, as it threatens the freedoms of LGBTQ+ individuals across the nation and allows for discrimination based on sexual identity,” the lawmakers continued. “We stand in solidarity with and will continue advocating for legislation like the Fairness Act to protect the wellbeing of LGBTQ+ Pennsylvanians.”

U.S. Sen. John Fetterman, D-Pa., called the ruling “despicable,” and a “full-on assault on LGBTQ+ people in America.”

“On the last day of Pride Month, an extremist and unelected SCOTUS uses a made-up case to hand out a “constitutional” right to discriminate against LGBTQ people. What an embarrassment for our country,” Fetterman said. “This Court has sunk to a new low. Its majority doesn’t act like a court – it acts like politicians advancing their partisan views, not independent judges.

Capital-Star Editor John L. Micek contributed to this story.

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Lindsey Toomer
Lindsey Toomer

Lindsey Toomer covers politics, social justice and other stories for Colorado Newsline, a sibling site of the Pennsylvania Capital-Star. She formerly reported on city government at the Denver Gazette and on Colorado mountain town government, education and environment at the Summit Daily News.