Before You Claim a First Amendment Violation, Please First Express Yourself

Before the Supreme Court sits 303 Creative LLC v. Elenis. At its center is Lorie Smith, founder of 303 Creative LLC, who argues that Colorado’s public accommodation law — which prohibits businesses open to the public from refusing service based on race, color, religion, sex, or sexual orientation — violates her First Amendment rights.

Photo by That's Her Business on Unsplash

Her argument is deceptively simple: designing custom wedding websites is expressive speech. Because she objects, on religious grounds, to same-sex marriage, she contends that Colorado is compelling her to create speech that contradicts her faith.

Pause. Inhale. Exhale.

The Court’s conservative majority appears sympathetic to this framing. If a majority rules that custom website design is protected expression rather than commercial conduct, the consequences will ripple far beyond one graphic designer in Colorado. Businesses may begin to recast services as speech in order to claim constitutional exemption from public accommodation laws. And the LGBTQ community would not merely face discrimination — it could face discrimination shielded by the First Amendment itself.

Once constitutional doctrine shifts, it rarely corrects itself quickly. It can take years, sometimes decades, for precedent to be narrowed or overturned. The stakes here extend beyond wedding websites.

Religious liberty matters. The right to believe, to worship, and to speak from conviction is foundational. But there is a meaningful distinction between expressing a personal belief and selling professional skill in the marketplace.

Ms. Smith does not appear to select wedding clients in order to advance her theology. She offers design expertise to customers who provide the content, the narrative, the tone, and the message. They review. They edit. They approve. The designer refines presentation; she does not author the couple’s vows.

If she required Leviticus 20:13 to appear on every custom wedding website — whether for heterosexual or same-sex couples — that would be unmistakably her expression. That would be speech she insists on attaching to her work as a matter of artistic identity. The market would then decide whether it wished to purchase that expression.

Colorado’s public accommodation law does not prevent Ms. Smith from expressing her religious beliefs. She may publish them. She may advertise them. She may incorporate them into her brand. What she cannot do, under the statute, is refuse service to a protected class while simultaneously claiming that she has been silenced.

One cannot claim compelled speech without first identifying the speech one insists on making.

Ms. Smith has every right to practice her religion. She has every right to speak about it publicly and unapologetically. But declining to serve same-sex couples is not the same as being forced to profess approval of same-sex marriage. One is discrimination in commerce. The other would be compelled expression.

If conviction is truly the issue, then conviction should be visible — consistently, transparently, and attached to the work itself. Let the expression stand. Let the market respond.

But do not conflate the refusal to serve with the right to speak.

_____

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