In 303 Creative LLC v. Elenis, one of the marquee cases of the current Supreme Court term, civil rights and constitutional law are seemingly at odds. The Justices have been asked to decide whether applying a public accommodation law to compel an artist to convey a certain message violates that artist’s constitutional rights under the First Amendment’s Free Speech Clause.

Does the state’s asserted interest in eliminating the dignitary harms caused by discrimination outweigh an artist’s First Amendment rights?

Website designer Lorie Smith, the owner of 303 Creative, filed a pre-enforcement challenge to the Colorado Anti-Discrimination Act (CADA) seeking clarification on whether CADA compels her to use the expressive medium of her website to communicate her approval of same-sex marriage. CADA requires, among other things, equal access to places of public accommodation regardless of disability, race, creed, color, sex, sexual orientation (including transgender status), marital status, family status, religion, national origin, or ancestry. Places of public accommodation include any business engaged in offering sales, services, or facilities to the public. And while Lorie Smith works with all people regardless of their sexual orientation—a fact to which the state of Colorado has stipulated in lower court proceedings—she refuses to create custom websites celebrating same-sex marriages.

If the wedding-vendor/CADA conflict sounds familiar, there’s a good reason for that. In 2018’s Masterpiece Cakeshop decision, the Justices sided with owner Jack Phillips after he was charged with violating CADA for refusing to make a custom cake for a same-sex couple’s wedding. In that case, the Supreme Court determined that because the Colorado Civil Rights Commission was unduly hostile to Phillips’s religious beliefs and failed to apply CADA in a religiously neutral manner, it had violated Phillips’ First Amendment right to the free exercise of his religion.

In Smith’s case, the U.S. Court of Appeals for the 10th Circuit rightly employed a strict scrutiny analysis—the most exacting standard of review that judges use when a law impinges upon a fundamental constitutional right. In order for a law to survive strict scrutiny, the government must show the law fulfills a “compelling governmental interest” and that it is narrowly tailored to achieve that interest. Yet, although laws rarely survive strict scrutiny, the lower court held that the state had shown both a compelling interest and narrow tailoring, allowing it to (1) force Smith to communicate a message that was an anathema to her sincerely held religious beliefs, and (2) prevent her from explaining her religious beliefs to potential clients on her website. The court accepted Colorado’s arguments on compelling interest because, among other things, the state sought to ensure access to Lorie’s “unique services [which] are, by definition, unavailable elsewhere”—even though it acknowledged that “LGBT consumers may be able to obtain wedding-website design services from other businesses.”

Attorneys for 303 Creative argue that by holding that Colorado could “force[ ]” artists “to create custom websites they otherwise would not” because of their sincerely held religious beliefs, the appellate court deepened an existing conflict among the federal courts on whether public officials can punish speakers with whom they disagree, and that in doing so, it had disregarded longstanding Supreme Court precedents regarding the scope of the Free Speech Clause.

The state’s argument relies on its alleged compelling interest in eliminating discrimination and the attendant dignitary harms suffered by those denied service by public accommodations providers in Colorado. Dignitary harms are intangible injuries of a personal or dignitary nature, such as reputational damage or emotional distress. Colorado argues that CADA is geared toward “preventing the harm, both dignitary and economic, inflicted by denials of equal access to commercially available goods and services.”

But the Supreme Court’s precedent on civil rights and the First Amendment suggests that in Lorie Smith’s case, Colorado’s dignitary harm theory is unlikely to prevail.

To be sure, the Supreme Court has occasionally recognized the intangible dignitary benefit that arises from eliminating discriminatory conduct. For example, in Heart of Atlanta Motel, Inc. v. United States, the Court held that because the purpose of the 1964 Civil Rights Act was to “vindicate ‘the deprivation of personal dignity that surely accompanies denials of equal access to public establishments,’” the government could force a motel to serve African Americans.

Later, in Roberts v. U.S. Jaycees, the Supreme Court held that the Minnesota Human Rights Act could be used to compel the Jaycees to accept women as regular members. In its opinion, the Court decried the gender discrimination that hobbled women’s full participation in cultural life as based on “archaic and overbroad assumptions” about the capabilities of women.

But the Court has never held that antidiscrimination law can be used to coerce or compel otherwise protected speech on the basis that such speech is offensive. In fact, in cases where the government has imposed burdens on freedom of expression stemming from the desire to avoid sexual orientation discrimination (such as in Boy Scouts v. Dale, in which the state attempted to suppress expression that conveyed disapproval of “homosexual conduct”), the Supreme Court has found a First Amendment violation.

The line between the former cases and 303 Creative is bright and clear. Heart of Atlanta and Roberts involved systematic subordination of an entire class of individuals that hampered their social, political, or economic mobility by disparaging the group’s character or place in society. Before the Civil Rights Movement, African Americans were nearly universally denied access to places of public accommodation in an effort to prevent their advancement.

In 303 Creative, on the other hand, a website designer who serves everyone equally on virtually every other occasion simply wishes to avoid being forced to relay a particular message with which she disagrees, namely a tacit approval of same-sex marriage. Moreover, unlike the situation that African Americans faced at the time the Heart of Atlanta case was decided, there is no question that there are many website designers in Colorado who are perfectly willing to perform this service for same-sex couples.

Recently, in another case that involved a conflict between public accommodations law and free speech rights, Green v. Miss United States of America, LLC, transgender activist Anita Green claimed that a pageant’s policy of allowing only “natural born” women to compete violated the Oregon Public Accommodations Act. In finding for the pageant association, the U.S. Court of Appeals for the 9th Circuit explained that beauty pageants enjoy the First Amendment’s protection of freedom of speech or expressive conduct. The court noted that the Supreme Court has held—in Southeastern Productions v. Conrad (1975) and Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995), for example—that expressive conduct of this kind (which the Supreme Court might conclude also characterizes Lorie Smith’s creation of custom websites) is entitled to the same First Amendment protection as any other form of speech.

The 9th Circuit went on to say, “Green offers nothing more precise [than a desire to eliminate discrimination against LGBTQ individuals], and instead admits that Miss United States of America has done nothing to prevent Green from participating in other pageants or to prevent Green from expressing any message by any other means.” Like Colorado in the 303 Creative case, the state of Oregon in Green had argued that its compelling interest behind passage of the Oregon Public Accommodations Act was in “eliminating discrimination against LGBTQ individuals.” But the court held that application of this law to the beauty pageant would necessarily force the pageant to change its intended message in violation of the First Amendment.

The 9th Circuit’s reasoning tees up these precise considerations in Lorie Smith’s case.

Smith’s belief that marriage is the gender-differentiated union of one man and one woman has been recognized by the Supreme Court as one that is deserving of respect. In 2015 in Obergefell v. Hodges, the Court said that such a belief has been “long held—and continues to be held—in good faith by reasonable and sincere people here and throughout the world.” And in 2018 in Masterpiece Cakeshop, the Court again stated that, “religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.”

Even if Smith’s views might be considered offensive by some, the Supreme Court has routinely upheld the freedom of individuals to express offensive ideas—including “hate speech.” It has also refused to allow the government to discriminate against speech on the basis of the speaker’s viewpoint, or to force a speaker to communicate a message with which he or she doesn’t agree, despite what the 10th Circuit concluded.

It is against this backdrop of civil rights and free speech cases that the high court will, in all likelihood, see Colorado’s asserted interest in preventing dignitary harms to gay people as insufficiently compelling to justify overriding Lorie Smith’s First Amendment right to express the messages in which she believes.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].