The Butcher, the Baker, and the Website Maker

By Howard B. Jackson

In June the United States Supreme Court issued a decision in 303 Creative, LLC v. Aubrey Elenis et. al. holding that the State of Colorado could not use its public accommodation non-discrimination law, the Colorado Anti-Discrimination Act (CADA), to force a website designer to offer her services to gay couples.  To understand how the Court got there, and the implications of this decision, let’s begin with some factual and legal context.

303 Creative, LLC is owned and operated by Lorie Smith.  She provides website and graphic design, marketing advice and social media management services to businesses generally.  She is the sole creator of the designs and communication services.

Ms. Smith wished to expand her offerings to include website design for couples who wanted a website for their wedding.  Her website would provide couples with text, graphic arts and video that would celebrate and convey their love story.  The text and graphics would be original and customized.  

The case arose because Ms. Smith feared that if she declined to provide services for gay couples, which would conflict with her religious beliefs, the State of Colorado would bring legal action asserting that she was violating the CADA.  She further feared that Colorado would attempt to force her to provide messages inconsistent with her belief that marriage should be reserved for unions between one man and one woman.  

Ms. Smith’s fears had a basis in history.  After all, Colorado previously brought legal action against a wedding cake baker in Masterpiece Cakeshop, Ltd v. Colorado Civil Rights Commission, another case that reached the Supreme Court.  Accordingly, she sued seeking an injunction prohibiting the State from forcing her to create wedding websites celebrating marriages that are inconsistent with her beliefs on the ground that such action would violate her rights under the Free Speech Clause of the First Amendment.

Ms. Smith and the State stipulated to several facts, including each of the following:

• Ms. Smith is willing to work with all people regardless of classifications such as race, creed, gender, or sexual orientation and will gladly create custom graphics and websites for clients of any sexual orientation.
• Ms. Smith will not produce content that “contradicts biblical truth” without regard to the identity or beliefs of the person who orders it.
• Ms. Smith’s belief that marriage is a union between a man and a woman is a “sincerely held religious belief.”
• The graphic and website design services Ms. Smith provides are “expressive.”
• The websites and graphics Ms. Smith provides are original, customized creations that contribute to the overall messages the business conveys via the websites it creates.
• As with the other services, the wedding websites would be expressive in nature.
• The wedding websites would be customized and tailored through collaboration with the couples and will celebrate and promote Ms. Smith’s view of marriage.
• To the extent Ms. Smith would be unavailable to provide certain services to potential customers, there are many companies in Colorado and across the nation that offer website design services.

Colorado contended that the wedding website service Ms. Smith intended to offer was not materially different than other forms of commercial transactions, whether fees for services or simple purchases.  The Court and the parties agreed that the CODA would apply to myriad transactions.  By way of example from this author, the purchase of meat from a butcher shop.

The Supreme Court, however, did not buy Colorado’s argument.  While the Court agreed there are “innumerable” sales of goods and services that do not implicate the First Amendment, those that do implicate the First Amendment are on different ground.  The Court observed that public accommodation laws are not “immune from the demands of the Constitution.”

In this case, based in large degree on the stipulated facts above, the Court found that the intended website services were “pure speech”.  As such, the services were entitled to protection under the Free Speech clause of the First Amendment.  CADA could not be applied to silence Ms. Smith.

Further, under the Free Speech Clause, the government cannot compel a person to speak the message that the government prefers.  Yet, by enforcing CADA against Ms. Smith and requiring her to offer her services in connection with marriages that she did not endorse, that is precisely what Colorado sought to do.

The Court noted that the First Amendment envisions the country as a place “where all persons are free to think and speak as they wish, not as the government demands.”  The Colorado law sought to deny that promise and the Court therefore sided with Ms. Smith.

The outcome of this case does not directly impact workplace laws or policies, as it is a First Amendment case by a citizen against the government.  It is another chapter in the ongoing dialogue and debate that involves tension between individual freedoms and attempts to abolish discrimination in many forms.

That discussion and debate can certainly invade the workplace and in some instances can create unnecessary and unhelpful division among employees.  A few thoughts about how to avoid that situation are set out below.

Keep focus on the organization’s mission, vision, and values.  Presumably, the mission relates to the product or service the organization provides; the vision indicates what the organization strives to be; the values are principles that can be adopted without reference to any particular religious or political affiliation.  Make them known and make them a strong focus.

If and when divisive social issues arise between employees, the employer can reference its mission, vision and values and coach the employees that in the workplace those need to be paramount.  Everyone’s personal dignity and views are respected (something which may well be a value of the organization).  But debate over religious or political dictates, particularly regarding divisive subjects, does not contribute toward achieving our mission.  Accordingly, employees should avoid getting into such discussions at work.

Wait a minute, you may say, didn’t we just talk about the importance of freedom of speech?  Yes, we did.  But it is important to understand that the First Amendment applies to governments, not to private employers.  (The rules applicable to governmental employers are therefore different, but beyond the scope of this article.)  Private employers can, and should, manage and regulate the discussions that employees have at work such that the organization can maintain its proper focus.  Given that we are about to enter the throes of a presidential election cycle, this is a principle worth remembering – and applying!