The Volokh Conspiracy

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Free Speech

2-1 Decision Holds Web Site Designer May Be Required to Design Site for Same-Sex Weddings


The case is 303 Creative LLC v. Elenis; the majority opinion is by Judge Mary Briscoe, joined by Judge Michael Murphy, with a dissent by Chief Judge Timothy Tymkovich. This was just handed down, so I thought I'd pass it along; I hope to blog more about it later. (Note that I co-filed an amicus brief on behalf of the Cato Institute, supporting the web site designer.)

At first glance, this appears to be inconsistent with the Eighth Circuit's decision in Telescope Media Group v. Lucero, which upheld videographers' right not to create videos of same-sex weddings. I expect this circuit split will make this a good candidate for Supreme Court review—unlike Masterpiece Cakeshop, this case indubitably involves the creation of speech, and not just of a wedding cake, so it squarely tees up the compelled-creation-of-speech issue. (There's also a religious freedom issue present as well, though I don't think there's a square split of authority on that particular subject, since the Arizona calligraphers' case, which upheld a religious freedom objection, focused on Arizona's religious freedom statute, not the federal Free Exercise Clause.)