This week, the Supreme Court heard the case of 303 Creative, a small Colorado-based web-design business whose owner, out of religious conviction, does not wish to produce wedding websites for same-sex couples. The company currently refrains from creating any wedding websites, lest it run afoul of the state’s anti-discrimination laws, but it has taken to the courts to challenge the law on First Amendment grounds. As Michael A. Helfand observes, the Supreme Court’s 2018 ruling in the very similar case of Masterpiece Cakeshop was so narrowly defined that it leaves much room for further litigation. He explains what is at stake:
In taking on 303 Creative v. Elenis . . . the Court chose to limit its inquiry to the free-speech questions raised by the case, leaving to the side questions of religious liberty. . . . The most essential question underlying 303 Creative’s free-speech claims is whether making this sort of wedding website ought to be considered speech. If it is speech, then a law requiring someone to design a particular wedding website, under threat of financial penalty, would presumably run afoul of the “compelled speech” doctrine.
But while this sort of inquiry might normally be quite challenging, the current case may have less than meets the eye. . . . If all parties agree creating the website and graphics are expressive, then creating wedding websites is a form of speech, and requiring 303 Creative to make such a website for a same-sex couple would amount to compelling speech in violation of the First Amendment.
Where does this leave us? It might mean we’ll end up with a relatively narrow opinion, [but] this isn’t to say such a result wouldn’t have real impact. When it comes to questions of religious discrimination, for example, web designers and artists who make custom—and expressive—products could potentially refuse to sell services on the basis of religious affiliation. A Christian web designer could potentially refuse to make a wedding website for Jews, or a Jewish web designer could refuse to make a wedding website for an interfaith couple.