On the final day of the 2022-23 term, the U.S. Supreme Court issued its decision in 303 Creative LLC v. Elenis. In its decision, the Supreme Court held that forcing a single-member company to design websites for weddings of same-sex couples would violate the First Amendment’s Free Speech Clause.
While not an employment case, the Court’s decision in 303 Creative raises serious questions for employers who constitute public accommodations and have related anti-discrimination policies. Thus, as we have written recently, religious rights in the workplace remain a front and center issue for employers.
In 303 Creative, Lorie Smith, through her website and graphic design company, brought a lawsuit against the Colorado Civil Rights Commission and Colorado Attorney General. In the lawsuit, Ms. Smith sought an injunction preventing Colorado from using the Colorado Anti-Discrimination Act to compel her to create websites for weddings of same-sex couples. Ms. Smith claimed that forcing her to create websites for same-sex weddings would defy her religious beliefs and compel speech from her that she does not believe.
The Tenth Circuit Court of Appeal (covering Colorado and several nearby states) denied Ms. Smith’s request for an injunction. It acknowledged that the planned websites qualify as protected speech under the First Amendment but found that Colorado had a compelling interest in ensuring “equal access to publicly available goods and services.” It also found that...
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