Bias By Design: Constitutionality of Identity Based Accommodations

This December 2022, Lori Smith, a Colorado website designer, will bring her case in front of the United States Supreme Court. Presently, Ms. Smith would like to grow her website design company, 303 Creative, and design custom wedding websites. However, Ms. Smith opposes same-sex marriage “on religious grounds” and would like to indicate that on the company website. 

Ms. Smith is the founder and “sole member-owner” of her for-profit, graphic and website design company “303 Creative.” At this time, Ms. Smith is “willing to work” with all individuals regardless of their sexual orientation or identity. In her future business pursuits with 303 Creative, Ms. Smith has stated that she intends to offer “wedding-related services,” but in accordance with her religious beliefs will refuse to create websites that promote same-sex marriage. 

As it stands, Ms. Smith’s intended plan would violate Colorado law, “which bars businesses that are open to the public from discriminating against LGBTQ people or announcing an intent to do so.” Ms. Smith, would like to challenge Colorado’s AntiDiscrimination Act (“CADA”) “on free speech, free exercise, and vagueness and overbreadth grounds.”

On July 26, 2021 the United States Court of Appeals, upheld that the Appellants (Lori Smith and 303 Creative) are justified in challenging CADA. Nonetheless, the court found “that CADA satisfies strict scrutiny, and thus permissibly compels Appellants' speech. We also hold that CADA is a neutral law of general applicability, and that it is not unconstitutionally vague or overbroad.” Put simply, the 10th Circuit Appellate Court maintained the district court's “grant of summary judgment in favor of Colorado.” 

CADA precludes “a public accommodations’s ability to refuse to provide services based on a customer's identity.” Defined as “any place of business engaged in any sales to the public and any place offering services, facilities, privileges, advantages, or accommodations to the public,” the scope of  “public accommodations” is particularly broad. That said, spaces “principally used for religious purposes” are excluded from CADA’s “public accommodations” definition and requirements. 

Furthermore, under Colo.Rev.Stat. §24-34-601(2)(a) CADA’s “Communication Clause,” a public accommodation is also barred from:

directly or indirectly . . . publish . . . any . . . communication . . . that indicates that the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation will be refused . . . or that an individual's patronage . . . is unwelcome, objectionable, unacceptable, or undesirable because of . . . sexual orientation . . . .

In previous rulings, Colorado’s Anti-Discrimination Act has been ruled against for violating the Free Excercise Clause of the United State’s Constitution. In Masterpiece Cakeshop, LTD v. Colorado Civil Rights Commission the United States Supreme Court ruled in favor of Mr. Phillips, permitting him to refuse services for same-sex weddings due to his religious beliefs. This case provided an answer to the question, “Does the application of Colorado's public accommodations law to compel a cake maker to design and make a cake that violates his sincerely held religious beliefs about same-sex marriage violate the Free Speech or Free Exercise Clauses of the First Amendment?” 

That said, when evaluating the constitutionality of Ms. Smith’s case, the issue centers around the distinction between CADA’s Accommodation and Communication clauses. Independently, CADA’s Accommodation clause affirms that engaging in business transactions is not cause for questioning First Amendment constitutionality, as it “is not sufficient to show a speech interest.” However, the complexity of this case derives from the unique codependent nature of CADA’s Accommodation and Communication clauses. As 303 Creative’s services are “inherently expressive” in nature, the clauses conflate and are not mutually exclusive. This poses considerable challenges for Colorado, because in this unique case the accommodation, creating a website, is founded upon free speech, Ms. Smith’s beliefs on such marriage. 

To summarize, while previous cases such as Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission and Rumsfeld v. Forum for Academic and Institutional Rights, Inc. have evaluated the constitutionality of accommodations and communication, respectively, Ms. Smith’s unique case questions communication as a form of accommodation. Put simply, 303 Creative’s services are conducted through Ms. Smith’s speech and expression, as her product, wedding websites, “intend to offer ‘celebrate and promote the couple’s wedding and unique love story” consequently expressing approval and celebration of one’s love and marriage. 

Because Ms. Smith’s religious beliefs oppose the union of same-sex individuals, her product (accommodations) cannot “celebrate and promote the couple’s wedding and unique love story.” As such, this case is being presented to the Supreme Court to rule on the constitutionality of her standing. 

A court ruling in favor of Ms. Smith and 303 Creative, would expand the breadth of First Amendment constitutionality. Once more, 303 Creative’s multi-faceted services are communicative in nature, and “inherently expressive,” therefore obscuring the distinction between Communication and Accommodation clauses in CADA. As a result, this case could be used as precedent in forthcoming litigation for both Colorado and the United States as a whole. Alternatively, a ruling in favor of Colorado would underscore the aforementioned distinctions between the Communication and Accommodation clauses within CADA. In turn, inhibiting business owners and their companies from denying services to certain individuals on the basis of “religious grounds.”

Haley Joyce is a senior concentrating in International Public Affairs and Sociology at Brown University. She is a Staff Writer for the BULR Blog and hopes to pursue a law degree. Haley can be reached at Haley_Joyce@brown.edu