Late last month, the United States Supreme Court ruled in a split decision that Colorado can’t force, through its anti-discrimination law, a business owner who provides expressive services like graphic design and website creation to make wedding websites for same-sex couples.

To do so, the court found, would violate the First Amendment rights of Lorie Smith, owner of 303 Creative, as she’s a devout Christian who does not support same-sex marriage due to her religious beliefs.

Still, the Supreme Court ruling made clear that businesses would be engaging in discrimination if they refuse to work with someone on the basis of who they are or if they belong to a particular group, according to attorneys. Businesses can’t withhold an expressive service based on things like the person’s race, sex, ethnicity, religious affiliation, sexual orientation and the like.

The ruling has been celebrated by some as a victory for free speech and religious freedom. Critics have deeply derided the decision as a court-mandated catalyst for what they fear will be widespread discriminatory practices by businesses against vulnerable groups, such as the LGBTQ+ community. No matter the sentiment, the case promises to have real applications for promo companies who offer a similar array of “expressive services.”

Here’s a look at the case.

The History

Based in Colorado, Smith founded and operates 303 Creative, which provides services like graphic design, marketing, branding and strategy. Smith describes herself as a committed Christian who will work with anyone of any background, but avows she will not communicate ideas or messages, or promote “events, products, services or organizations, that are inconsistent with my religious beliefs.”

This stance led Smith to challenge Colorado’s Anti-Discrimination Act. In 2016, Smith sued the state’s Civil Rights Commission and state attorney general, saying that if Colorado forces her through its act to create a website for a same-sex wedding, her First Amendment rights (and religious freedoms) would be violated. Her reasoning was that the state would be compelling her to engage in “speech” – with her creative service defined as a type of speech – against her will.

Smith first lost in federal court in Colorado and was defeated again on appeal. The courts essentially ruled that she could not offer a service like wedding website creation to the public and refuse to produce websites for LGBTQ+ weddings even if to do so goes against her beliefs.

That wasn’t the end of things, though. Smith’s case made its way to the U.S. Supreme Court. In a divided 6-3 decision on June 30, the court ruled that Colorado can’t enforce its anti-discrimination law against Smith and compel her to create wedding websites for same-sex couples. Doing so, the majority of justices opined, would violate Smith’s First Amendment right to free speech.

Legal Analysis

Writing for the majority, Justice Neil Gorsuch said Colorado can’t “force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.”

Gorsuch stated that the First Amendment “protects an individual’s right to speak his mind,” even if others may feel the viewpoint is “misguided” and may cause “anguish.” The First Amendment also prevents the government from being able to force Smith and others to voice a certain message, the majority opinion said.

In effect, the Supreme Court ruling asserts the protections afforded Smith relative to website creation would extend to other business owners whose work involves expressive “speech” of some kind. If such protections weren’t upheld, the government could, in theory, compel the creation of all kinds of speech, including requiring “an unwilling Muslim movie director to make a film with a Zionist message” or forcing an “atheist muralist to accept a commission celebrating Evangelical zeal,” in the court’s opinion.

“[The government can’t] force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.” Supreme Court Justice Neil Gorsuch.
(Image courtesy of U.S. Supreme Court)

After the ruling, attorneys across the nation weighed in.

The Supreme Court “majority held that Colorado could not compel Smith to produce speech she does not agree with, and thus cannot force her to create a wedding website for a same-sex marriage,” wrote attorneys for the law firm Ford Harrison. “Importantly, the majority opinion made clear that the holding does not provide a general license to discriminate.”

Attorney Randall Wenger expressed a similar interpretation of the ruling.

“What’s clear from 303 Creative is that those who speak for a living are free to choose their message or choose not to speak at all,” Wenger, chief counsel at Harrisburg, PA-based Independence Law Center, a law firm known for championing conservative causes, told ASI Media. “Businesses are free to say ‘no’ to an image or a message. Conversely, businesses should not and cannot say ‘no’ to a customer because of their sex, sexual orientation, race, religion, etc.”

A top attorney with Lambda Legal, a civil rights organization that focuses on lesbian, gay, bisexual, and transgender communities, has asserted that the court’s ruling was limited to situations involving paid expression of some kind. “The court equated the wedding website designer’s work to speech writers and fine arts commissions, and the court framed it as part and parcel of past precedent, not as changing the law,” said Camilla Taylor, deputy legal director for litigation at Lambda.

Applications in Promo

Given that promotional products companies engage in a type of paid expressive speech in the messages and graphics they produce on various products, the Supreme Court ruling is likely to apply to their work, according to Wenger. That’s to say, there are legal grounds for declining to express a message that conflicts with one’s beliefs. Wenger gave an example of how the intersection of promotional products and expressive services might look in the real world.

“Consider Westboro, a religious group that conducts protests at soldiers’ funerals,” Wenger told ASI Media. “If Westboro asked an Army veteran T-shirt maker to design a T-shirt celebrating their 100^th protest, the T-shirt maker can say ‘no.’ But if a member of Westboro’s group were to ask the T-shirt maker for T-shirts with the name of his small business on it, the T-shirt maker cannot deny service on account of the customer’s membership in that religious group.”

“Businesses are free to say ‘no’ to an image or a message. Conversely, businesses should not and cannot say ‘no’ to a customer because of their sex, sexual orientation, race, religion, etc.” Randall Wenger, Independence Law Center

Writing in a commentary published in The Philadelphia Inquirer, Wenger emphasized: “There’s a distinction between disagreement with a message and animus toward a group. All people must be served, but not all messages must be communicated.” He noted to ASI Media that additional case law will likely be needed to determine how that’s applied in various contexts.

Monica Maglaris, co-founder of Liberty Print Co., a certified women- and LGBTQ-owned contract decorating shop in Beacon Falls, CT, told ASI Media her thoughts on the Supreme Court ruling are two-fold.

“On one hand, this ruling addresses consent in relation to the First Amendment, and as someone who was once asked to print T-shirts with anti-Semitic symbols on them and declined, I can respect the ruling,” Maglaris said. “You do not infringe upon another’s First Amendment rights by declining to participate.”

“On the other hand,” Maglaris continued, “these constant hypothetical cases on issues that can easily be solved without government intervention only serve special interest groups pushing an agenda to score points in a culture war. This can cut both ways and I have no doubt will be used at some point to score a point for another group. It’s a blunt political tool.” (There’s been debate and controversy over whether Smith ever received a request to produce a website for a same-sex couple.)

A Prior Case in the Merch Market

A court battle with circumstances similar to the 303 Creative case played out in the promotional products market several years ago. The controversy began in 2012 when Hands On Originals (HOO), a Lexington, KY-based apparel decorating company, declined to print T-shirts for the Lexington-based Gay and Lesbian Services Organization’s pride festival. HOO owner Blaine Adamson said doing so would have conflicted with his religious beliefs.

“I’ve happily served and employed people of all backgrounds, of all walks of life. … I have gay customers and employ gay people,” Adamson said in an online commentary amid the court fight. “We’ll work with everyone, but we can’t print all messages.”

Blaine Adamson, Hands On Originals

The case came to a head in 2019 with the Kentucky Supreme Court issuing a ruling that favored Adamson, though the justices avoided the hot-button issues. The court sided with HOO on the grounds that GLSO didn’t have standing to make a claim against Adamson because Lexington’s equal rights law is designed to protect individuals. That means only an individual can file such a claim, not an organization.

Even so, a Kentucky justice at the time expressed the opinion that the Lexington-Fayette Urban County Human Rights Commission, which charged HOO with violating Lexington’s fairness ordinance after receiving a complaint from the GLSO, had “went beyond its charge of preventing discrimination” and tried to compel Hands On Originals to engage in expression with which it disagreed.

Criticisms of the Supreme Court Decision

The U.S. Supreme Court decision in the 303 Creative case has been the subject of extensive criticism. Dissenting justices and civil rights groups are among those who say the ruling unlocks a Pandora’s Box for spurring discrimination.

“The Court’s decision opens the door to any business that claims to provide customized services to discriminate against historically marginalized groups,” the American Civil Liberties Union said in a statement. “The decision is fundamentally misguided. We will continue to fight to defend laws against discrimination from those who seek a license to discriminate.”

“The immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status.” Supreme Court Justice Sonia Sotomayor
(Image courtesy of U.S. Supreme Court)

In a 38-page dissent, U.S. Supreme Court Justice Sonia Sotomayor argued that the U.S. Constitution “contains no right to refuse service to a disfavored group.”

According to Sotomayor and the dissenting justices, if Smith or another business owner is going to offer wedding websites to the public, she can’t legally refuse to provide such sites to gay and lesbian couples. “If a business chooses to profit from the public market, which is established and maintained by the state, the state may require the business to abide by a legal norm of nondiscrimination,” Sotomayor wrote. Business owners “opt into the nondiscrimination laws that attach to public accommodations.”

Timothy Holbrook, a legal professor, wrote that the 303 Creative ruling “opens the door to the erosion of anti-discrimination laws.” Businesses could “frame their activities as expressive to be exempt from state and potentially federal nondiscrimination laws.” An example of such an attempt by a salon owner occurred in Michigan.

In addition, Sotomayor wrote, the Supreme Court majority decision “declares that a particular kind of business, though open to the public, has a constitutional right to refuse to serve members of a protected class … The immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status.”

Wenger sees things differently, saying the 303 Creative ruling protects free speech/expression for Americans of all backgrounds – gay and straight, religious and atheist – thereby helping to allow a diversity of perspectives to flourish.

“It’s (a) false narrative that this case represents a targeting of the gay community,” Wenger said. “If we stopped and recognized that this decision is a gift to all Americans – regardless of our differences – it would help to bring healing. What we know from this case is that speech will continue to be protected.”