303 Creative Is No Barnette

There is much to unpack in the Supreme Court’s decision in 303 Creative LLC v. Elenis, which held that compelling a web designer to create a wedding website for same-sex customers would force her to express messages contrary to her deeply held religious beliefs and therefore violate her free speech rights. This post is devoted solely to exposing the ludicrousness of equating 303 Creative to the landmark free speech decision in West Virginia v. Barnette.

According to the Supreme Court, Colorado’s law in 303 Creative was akin to the West Virginia law in Barnette that compelled public school children to recite the Pledge of Allegiance even when contrary to their deeply held religious views. Just as it was abhorrent and unconstitutional to mandate orthodoxy in Barnette, the Court says, so is it in 303 Creative, and both deserved to be struck down. It is a clever move, given Barnette’s status in free speech jurisprudence and its famous declaration that “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” But the comparison falls apart upon closer examination.

Most obviously, the pledge mandate in Barnette compelled students to speak a scripted message, namely “I pledge allegiance to the Flag of the United States of America and to the Republic for which it stands; one Nation, indivisible, with liberty and justice for all.” On its face, it was a direct regulation of pure speech, passed with the express purpose of making schoolchildren utter the government’s patriotic message.                                                                                 

In 303 Creative, the Supreme Court held that Colorado’s anti-discrimination law was likewise a regulation of pure speech. It is not. The law prohibits discrimination on the basis of sexual orientation in places of public accommodation. Under this law if you are a business that opens your doors to the general public, you cannot refuse to serve someone based on various protected characteristics, like race, sex, and sexual orientation. On its face, the law regulates conduct: the act of discriminating. It does not directly regulate speech.

Granted, anti-discrimination law may incidentally affect speech if the service offered happens to be expressive. But legally there is a gulf separating a law that directly regulates speech and one that indirectly regulates speech via regulation of conduct. A law compelling someone to speak a particular state message is a content-based regulation that triggers strict scrutiny. A law forcing someone to act in a particular way that incidentally affects their speech is a content-neutral regulation that triggers only intermediate scrutiny.

303 Creative erases this distinction, at least with regard to anti-discrimination laws. It claims that the main purpose of the anti-discrimination law is not to regulate conduct but speech: “Colorado seeks to compel [Smith’s] speech in order to excise certain ideas or viewpoints from the public dialogue.” According to the Supreme Court, just as the point of the pledge law in Barnette was to mandate patriotic speech, the point of the public accommodations law is to erase anti-LGBTQ speech. The problem is that’s not true: The primary purpose of the law was to ensure that businesses that provide services to the publicwhether they be cakes, bedding, or wedding sitesprovide them to everyone regardless of their sexual orientation. 

Even assuming the state is indirectly compelling expression by requiring Ms. Smith to develop a website for someone else’s wedding, there is no obvious message made by this work. No such uncertainty exists in Barnette, where the students are literally required to say “I pledge allegiance to the Flag. . .” In contrast, Smith is creating the website for others, and we do not generally attribute the speech of commercial products to the seller rather than the client. In other words, when a store sells a cake that says, in purple frosting, “Happy Birthday, Zachary!”, we generally assume that the message comes from the person who ordered the cake, not the person who decorated it. In any event, the message on a wedding website is usually not “I approve same-sex marriages generally” or “I approve this same-sex couple specifically.” Rather, the website likely expresses messages along the lines of: “Stewart and Mike are getting married on June 6. Here are the directions to Stewart and Mike’s wedding. We are so happy and in love! Let us know if you want the vegan option.” In short, it is less clear that making a wedding website for a customer is equivalent to declaring approval for all aspects of the couple and their marriage. 

Another distinction is that the public-school students in Barnette had no choice in the matter. Not only was the Pledge mandated by the state but attendance at school was mandated as well. If they refused, they were disciplined to the point of expulsion. That was not what happened in 303 Creative. The government did not require Smith to start a website design company, nor did it mandate that she cater to the profitable wedding market. Moreover, as Justice Sotomayor pointed out, Lori Smith entered this area fully aware of a longstanding “social contract”: “A business that chooses to sell to public assumes a duty to serve the public without unjust discrimination.”

The final difference between these two cases is that is that a student’s refusal to recite the state’s message harmed absolutely no one. On the other hand, Smith’s refusal to comply with anti-discrimination law inflicts a great deal of harm on the LGBTQ community. It essentially renders them second-class citizens who can never be sure if they will be able to secure publicly available goods and services. As Justice Sotomayor put it, “All they seek is to exist in public. To inhabit public spaces on the same terms and conditions as everyone else.” Not only will they no longer have equal access to goods and services on the same footing as everyone else, but they are denied equal dignity. Again, Justice Sotomayor captures the sting of refusal best: “discrimination is not simply dollars and cents; hamburgers and movies; it is the humiliation, frustration, and embarrassment that a person must surely feel when he is told that he is unacceptable as a member of the public…”

It is understandable why the Court wanted to equate Smith with the sympathetic student-objectors in Barnette. But other than presenting compelled speech claims, the cases have little in common, and the outcome of Barnette most certainly does not require the outcome in 303 Creative.

Caroline Mala Corbin