Margalit Zimand
In a couple weeks, the Supreme Court of the United States will decide if first amendment protection for artistic self-expression extends to homophobic messaging. This is of course a drastic oversimplification, but hits at the core conflict in 303 Creative L.L.C. v. Elenis. In 2019, the district court for the District of Colorado heard a case brought by Lorie Smith, founder, owner, and sole employee of 303 Creative L.L.C., a graphic design company. Smith had previously designed websites for anyone who hired her, without bias. But she was hoping to enter into a new realm that she feared would make that an impossibility for her moving forward. She wanted to start creating wedding websites and, while she would be willing to create a website celebrating the marriage of an opposite sex couple for a client of any sexual orientation, her religious convictions precluded her from creating a website celebrating a same sex marriage. To be safe, she wanted to publish a statement on her own website stating such.[1]
Aware that this statement would violate the Colorado Anti-Discrimination Act (“CADA”) and not wanting to break the law, Smith decided to challenge the act as an unconstitutional violation of her first amendment rights to free speech and free exercise of religion.[2] The district court addressed the very narrow question: Does the CADA communication clause unconstitutionally prohibit Smith from posting a statement that she will refuse service to customers who want a website for same sex marriages? The court did not address the act’s prohibition of Smith’s refusal to serve those customers.[3] As such, this case is really about the extent to which artists may determine what motivating factors inform their creative expression.
The district court held that the act did not violate the artist’s first amendment rights and she appealed to the 10th Circuit. The circuit court framed the issue slightly differently, emphasizing the role of her website as a public accommodation and therefore subjecting it to the civil rights era Heart of Atlanta rule.[4] While Chief Judge Tymkovich wrote a scathing dissent, waxing poetic about the integral role of the first amendment in our legal system, he failed to convince his peers and the court affirmed the lower court’s holding.[5]
On December 5th, the Supreme Court will hear the case. With the present makeup of the Court and the legacy of Masterpiece Cakeshop[6] looming large, it is not impossible to imagine a potential reversal. As such, it is important to consider its implications.
While the case will be most influential for how it interprets the relationship between the first amendment rights to free speech and free exercise of religion and antidiscrimination policies, there is also an important undercurrent of how this relationship will impact creative expression. As the law presently stands, there are almost no limits on creative expression, but one key limit is that you do not have complete freedom to speak about breaking an existing law. The district court for the District of Colorado extended this law to inform its holding that you cannot publish a statement saying that you are going to discriminate.[7]
Of course, this is a logical extension, but it begs the question, should there be any limitations on creative expression? The purpose of art is to shock and move society and limiting art in such a way limits its ability to just that. Chief Judge Tymkovich certainly held that belief as he concluded his dissent with the quote: “[F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.”[8]
But this case also demonstrates the serious danger that such a belief can hold. It goes without saying that art is a powerful tool for change, but not everything needs to be changed. A societal order in which marginalized groups are protected from further discrimination must not be changed in the name of creative expression. If art is to be promoted by law in the cases where it benefits society, it must likewise be limited in the cases where it harms society and this is certainly such a case.
[1] 303 Creative L.L.C. v. Elenis, 385 F. Supp. 3d 1147, 1150-51 (D. Colo. 2019).
[2] Colo. Rev. Stat. Ann. § 24-34-302 (2022).
[3] 303 Creative, 385 F. Supp. 3d at 1153.
[4] 303 Creative L.L.C. v. Elenis, 6 F.4th 1160, 1179-80 (10th Cir. 2021), cert. granted, 142 S. Ct. 1106 (2022) (quoting Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 250 (1964)).
[5] 303 Creative L.L.C. v. Elenis, 6 F.4th at 1196.
[6] Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n, 138 S. Ct. 1719 (2018).
[7] 303 Creative, 385 F. Supp. 3d at 1159.
[8] 303 Creative, 6 F.4th at 1215 (quoting W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943)).