LAW

Snark at the Supreme Court

Unpacking 303 Creative v. Elenis, in which the justices get into a rhetorical cage match.

Adeline Dimond
11 min readJul 8, 2023

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Photo by Claire Anderson on Unsplash

Full disclosure: I read 303 Creative v. Elenis because I was going to write a screed about how the media has gotten this case all wrong. A few days ago NPR introduced a story about the case by saying “The Supreme Court made it lawful to discriminate against LGBTQ+ people.” (I’m paraphrasing, but that was the thrust). I turned off the radio, because at the time I thought this was a gross oversimplification of what happened. But it turns out in the immortal words of my 2008 Facebook relationship status: it’s complicated. Or put another way, I was wrong.

To the uninitiated, Lori Smith, a website designer (at least supposedly a website designer, more on that below) and owner of a business called 303 Creative, sought an injunction so that the state of Colorado couldn’t penalize her if she refused to make websites announcing gay marriages, but still made wedding websites for straight couples. (Smith had never designed wedding website before, but claimed that she was going to start designing wedding websites). Smith claims that gay marriage is contrary to “biblical truth,” (whatever that means) and therefore creating a wedding website for a gay couple would be contrary to her “sincerely held belief.”

In addition to be being able to provide wedding websites to straight people but not gay people, Smith also wanted to advertise that she would not create gay wedding websites. Given all this, Smith wanted to ensure that she would not be held liable by the Colorado Anti-Discrimination Act (CADA), which prohibits businesses from denying its goods and services to any customer based on “race, creed, disability, sexual orientation, or other statutorily enumerated trait.”

The Supreme Court found in favor of Smith, with Gorsuch writing the majority’s opinion. Gorsuch explained that 1) the production of a website constitutes expressive speech or “pure speech” and 2) the government (in this case, a state government) cannot punish Smith for refusing to engage in speech.

On its face, this is a great idea: the government, whether state or federal, should not be able to compel you to speak. If this doesn’t seem obvious…

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