Colorado’s public-accommodation law prohibits businesses that offer goods or services to the public from discriminating on grounds such as race, sex, and sexual orientation. 303 Creative, a business that creates websites for other organizations and individuals, wanted to offer to create wedding websites only for opposite-sex couples because its proprietor’s religious beliefs are opposed to same-sex marriage and she did not want to create content that would celebrate such marriages. She sued the Colorado officials who enforce the public-accommodation law, contending that applying the law to prohibit her from offering wedding websites only to opposite-sex couples would violate the First Amendment. The U.S. Court of Appeals for the Tenth Circuit agreed with her that the Colorado law’s application to her proposed activity would compel her to engage in speech promoting same-sex marriages and was therefore subject to strict scrutiny under the First Amendment, but held that such compulsion was narrowly tailored to advance a compelling state interest in providing gay couples access to the market for website development services free from discrimination on the basis of sexual orientation. The Supreme Court granted 303 Creative’s petition for certiorari on the question of whether applying a public accommodation law to compel an “artist” to speak violates the First Amendment.
Public Citizen submitted a brief as amicus curiae in support of Colorado. The brief explained that First Amendment protection does not depend on whether a person is an “artist” or her goods or services are “art.” Although the First Amendment protects against compulsion to express messages a person is unwilling to express, most requirements that commercial goods and services, even artistic ones, be provided on a nondiscriminatory basis do not compel the expression of messages in violation of the First Amendment. Colorado’s law, as explained by the state officials who enforce it, would not compel 303 Creative to express messages in support of same-sex marriage and, therefore, is not subject to strict scrutiny under the First Amendment.
The Court however, in a 6-3 opinion, held for the website. As Justice Sotomayor summed it up in her dissent: “Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class.”