The Volokh Conspiracy

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A Likely Win for Free Speech

Last week's argument at the Supreme Court in 303 Creative v. Elenis.


Last week, the Supreme Court heard argument in 303 Creative v. Elenis, the latest wedding vendor case–this time concerning a web designer who does not wish to design sites for same-sex weddings. The wedding vendor cases typically present a conflict between free speech, including religiously-motivated speech, and equality in the marketplace for goods and services. Based on last week's argument, it seems the Court is ready to rule in favor of free speech this time, as I explain in a post today at First Things:

Resolving [the designer's] claim requires the Court to answer a basic, conceptual question under the Court's precedents: As applied to Smith's web design business, does CADA regulate speech or conduct? If the former, CADA would have to satisfy a test known as "strict scrutiny." Colorado would have to show that prosecuting Smith was "necessary" to promote a "compelling" state interest. By contrast, if the law regulates conduct and only incidentally affects speech, Colorado would have to satisfy a more lenient test known as the O'Brien standard. Colorado would have to show only that CADA "furthered" an "important" or "substantial" state interest unrelated to the suppression of speech.

At last week's argument, Colorado's lawyer argued that CADA is directed principally at conduct. Were Colorado to prosecute Smith, he explained, it would be because Smith had discriminated against customers based on sexual orientation, not because she expressed an opinion on same-sex marriage. Smith could not be required to praise same-sex marriage expressly—but she would have to design websites for all comers. Appearing on behalf of the Biden Administration as amicus curiae, Deputy Solicitor General Brian Fletcher agreed. Declining categorically to design websites for same-sex weddings, he told the justices, would be "a form of status-based discrimination properly within the scope of public accommodations laws."

This argument appeared to persuade progressives like Justice Sonia Sotomayor—but not the Court's conservatives. For example, Justice Neil Gorsuch stressed that Smith had said repeatedly that she would "serve everyone," straight, gay, or transgender, and would decline to design websites for same-sex weddings no matter who requested them. She objected to expressing a message with which she disagreed, not to serving customers of different sexual identities. When it came to designing wedding websites, Gorsuch emphasized, "the question" for Smith wasn't "who," but "what."

Justice Gorsuch didn't mention it, but a recent case from the UK Supreme Court, Ashers Bakery, supports his argument. In that case, decided four years ago, a bakery in Northern Ireland refused to bake a cake with a pro-gay marriage message. The UK court ruled that the bakery had not violated UK anti-discrimination law because it had drawn a distinction based on the message conveyed, not the identity of the customer–the "what," not the "who," in Gorsuch's terms. Ashers Bakery isn't exactly analogous to 303 Creative. In the UK case, the bakery declined to bake a cake with an express pro-gay marriage message, whereas the designer in 303 Creative doesn't wish to design any website for a gay wedding, even a generic one without an express message. And, anyway, this Court probably won't feel comfortable relying on a foreign decision in a First Amendment case. But the cases are awfully close, and the reasoning in Ashers Bakery may ultimately control the outcome here as well.

If the Court does decide that CADA regulates speech and so must pass strict scrutiny, it seems unlike the Court will uphold the law. I explain why in my post. The Court's decision is expected by summer.