Express Yourself – Supreme Court Rules that Businesses May Deny “Expressive Services” to the Public Based on Their Owner’s Beliefs

  • Businesses providing goods and services to the public cannot be forced to provide expressive goods and services that are contrary to their beliefs.
  • The First Amendment’s protection of free speech trumps legislation designed to ensure full and equal access to the goods and services private businesses provide to the public.

On June 30, 2023, the Supreme Court issued its decision in 303 Creative, LLC v. Elenis.  In a 6-3 opinion authored by Justice Gorsuch, a divided Supreme Court held that the First Amendment’s free speech protection bars Colorado from requiring a website designer to create expressive designs that convey messages with which the designer disagrees.


This case began when the owner and founder of 303 Creative, a website design company, prepared to enter the wedding website market. The owner wanted to publish a statement explaining that providing a wedding website for same-sex couples would compromise her Christian beliefs that marriage is between one man and one woman.  Because Colorado’s Anti-Discrimination Act (CADA) prohibits discrimination by a place of public accommodation against members of the LGBTQ+ community, however, the owner did not publish the statement or expand her business to create wedding websites.  Instead, she brought a pre-enforcement lawsuit to challenge CADA claiming that enforcing it in this instance would violate her First Amendment rights to free speech and free exercise of religion. 

CADA, like similar laws in nearly half the states, prohibits places of public accommodation from refusing services to a person based on their “disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.”  The trial court denied her claims following the Supreme Court’s 2018 ruling in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.  On appeal, the United States Court of Appeals for the Tenth Circuit affirmed the district court in a 2-1 decision.  As to the free speech challenge, the Tenth Circuit found that Colorado’s compelling interest in ensuring equal access to publicly available goods and services was sufficiently narrowly tailored to survive strict scrutiny, the highest level of review.  Additionally, the Tenth Circuit found the Colorado law was not unconstitutionally vague or overbroad. 

The dissenting judge asserted that CADA violated the First Amendment by forcing the owner to “violate her conscience” by prohibiting her from having religious-based business practices and by penalizing her if she spoke out on matters in ways Colorado found undesirable, compelling her to silence.  The Supreme Court granted review only on the question of whether the enforcement of CADA violated the free speech clause of the First Amendment.

SCOTUS Decision

The Supreme Court reversed the Tenth Circuit, holding the First Amendment prohibits Colorado from forcing the owner to create expressive designs that would violate her free speech rights.  According to the majority, CADA compelled speech in that it forced the owner to express herself in a manner inconsistent with her beliefs.  Citing prior Supreme Court rulings, including Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of Boston, the Court stated CADA could not interfere with the owner’s speech by promoting a state-approved message over a state-disfavored message, just as Massachusetts could not compel parade organizers to include an LGBTQ+ group in a parade based on the state’s public accommodation laws because doing so would compel the group to espouse a view it did not share.  Accordingly, CADA failed strict scrutiny review because it is content- and viewpoint-based in requiring business owners and their businesses to accept and espouse a state-approved message.

The Court recognized that eliminating discrimination in public accommodations is undeniably a compelling state interest. Colorado failed to narrowly tailor CADA to meet this compelling interest, however.  Instead, CADA both compelled protected speech and suppressed it when it required the owner of the business to express her support of same-sex marriage by creating a wedding website for same-sex couples or, alternatively, silenced her by not allowing her to state her beliefs regarding same-sex couples.  Further, CADA did not contain an exception applicable to expressive art.  Because CADA failed to address objectors to Colorado’s preferred message, it did not meet strict scrutiny. 

The Court relied heavily on the parties’ stipulations of facts to agree with the Tenth Circuit that what the website’s owner would design and produce was “pure speech,” and it only parted from the Tenth Circuit in its legal conclusions.  Additionally, the Court relied on the parties’ stipulation that the website was expressive in nature, potentially limiting the scope and reach of this decision.  In sum, the Court found CADA forced the owner to adopt a message that she did not support, violating the First Amendment’s prohibition on compelled speech.

In her dissent, Justice Sotomayor expressed serious concerns both with the Court’s reasoning and with the how courts will assess what types of goods and services are “expressive,” a question the Court did not resolve – because the only goods at issue were wedding websites that the parties stipulated were “expressive” – and will likely be litigated in the future.

What Does this Ruling Mean for Companies?

The ruling is important for businesses that serve the public that provide goods and services that may be deemed to express the owner’s views because the Court clarified that public accommodation laws, while based on compelling state interests, can run afoul of business owners’ constitutional rights. 

Although the decision does not involve employment law, employers must still be cognizant of their employees’ rights.  The Supreme Court’s ruling did not alter employers’ obligations to prohibit discrimination and harassment against employees or their ability to require employees to attend non-discrimination training programs. 

Importantly, the decision does not change the fact that the First Amendment does not apply to employees of private employers.  Employers can create rules ensuring that they provide a respectful, welcoming, and safe environment for their customers and employees.  Further, employers may still discipline employees who discriminate against customers.  Nevertheless, the case is a reminder that employers should remain vigilant of their employees’ differing perspectives and expression of viewpoints in the workplace and ensure that employees and customers are not being subjected to discrimination or harassment.    

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.