Paula Greisen Discusses 303 Creative v. Elenis

On February 22, news broke that the U.S. Supreme Court had agreed to hear arguments in 303 Creative v. Elenis, making it the next big stage for tensions between LGBTQ rights and religious beliefs.

The case centers on Colorado-based website designer Lorie Smith, who ran afoul of the state’s anti-discrimination laws while intending to post a notice on her business’s website that she would refuse to create sites promoting same-sex marriages. She sued the state in 2016 over the law, seeking to block its enforcement. The U.S. District Court for the District of Colorado ruled against her in 2019, and the 10^th Circuit upheld that decision on appeal.

Paula Greisen of King & Greisen in Denver has been following the case closely. Greisen was the lead trial lawyer for Charlie Craig and David Mullins, the same-sex couple at the heart of Masterpiece Cakeshop v. Colorado Civil Rights Commission, the famous 2018 case concerning a cake baker’s refusal to create a wedding cake for the couple due their sexual orientation.

“In the Masterpiece case, the United States Supreme Court stated that it was ‘unexceptional’ that state laws can prohibit business from unlawful discrimination and that there would be ‘innumerable’ goods and services that do not implicate the First Amendment,” she says. “The Court then side-stepped the issue of whether baking a cake was protected speech and found another way to protect the rights of the baker.”

While they may look similar at a glance, Greisen says there are significant differences between the website case and the cakeshop case and its follow-up, which involved the cakeshop’s refusal to make a cake for another Greisen client, transgender woman Autumn Scardina. 

“The major difference between the two cases is whether the conduct at issue is ‘speech’ that is entitled to First Amendment protection,” she says. “In both the cakeshop cases, the baker was only asked to make a cake without any design or words on the cakes. As soon as the cakeshop owner learned that a gay couple wanted a wedding cake, he refused to make them any cake. In the [Scardina] case before the Court of Appeals, a transgender woman asked for a birthday cake with pink cake and blue frosting. The cakeshop owner agreed to make the cake until he learned that she was transgender. Then he refused. It was clear in those cases that there was no ‘speech’ involved.”

However, when compared to baking a cake, designing a website is arguably more akin to traditional speech that is protected by the First Amendment. That said, “even when speech is affected by a regulation, that does not end the analysis,” Greisen says. “Whether the law is constitutional turns on whether it is viewed as targeting certain types of speech or whether it merely has an incidental effect on speech. Laws that regulate commercial conduct and prohibit discrimination based on protected categories have historically been upheld as constitutional regulations having only incidental effects on speech.”

The case is expected to come before SCOTUS during the 2022-2023 argument session. Greisen hopes that the justices will find that laws prohibiting businesses from discriminating against those in protected categories should be upheld as constitutional, but she also has concerns.

“Given the current make-up of the Court,” Greisen says, “it seems likely that it will find that the 303 Creative case concerns protected speech. The focus will be on whether the State’s interest in regulating the conduct is outweighed by the business owner’s right to free speech. The website business owner is asserting a very conservative Christian basis for her objection to gay weddings and this likely will have a high level of appeal to the majority of the Court.”

She adds: “My fear is that the Court will use 303 Creative to begin to carve out exceptions to allow less protection for certain categories, such as the LGBTQ community, in the name of religious freedom.”

 For more on Greisen and the cakeshop cases, read our 2019 feature story.