303 Creative: a website that didn't exist, a license to refuse
A Colorado designer who had never built a wedding website won the right to turn away same-sex couples she had never been asked to serve.
Lorie Smith ran a graphic and web design business in Colorado called 303 Creative. She wanted to start making wedding websites. She also did not want to make them for same-sex couples, and she did not want Colorado's anti-discrimination law to require her to. Her solution was to sue before she had built a single wedding site or turned away a single customer.
That sequence matters. When Smith filed her challenge to the Colorado Anti-Discrimination Act, she had never made a wedding website of any kind. She had never declined a same-sex couple's request, because no same-sex couple had requested anything. The harm she sued over was hypothetical.
On June 30, 2023, the Supreme Court ruled in her favor, 6-3. Justice Neil Gorsuch wrote the majority opinion in 303 Creative LLC v. Elenis. The six conservative justices held that Colorado could not use its public accommodations law to compel Smith to create wedding websites celebrating marriages she objected to. The Court's three liberals dissented.
The holding rested on the First Amendment's free speech clause, not on religious freedom. Gorsuch reasoned that Smith's custom wedding websites were a form of expression, and that the government cannot force a person to create speech endorsing a message she rejects. Once the work counted as her speech, the Court held, the state could not commandeer it.
There was a problem with the record. Court filings referenced a 2016 request from a man named Stewart inquiring about design work for his wedding to another man. After the case reached the Court, that man told reporters he never sent any such request. He said he is straight, was married to a woman at the time, and learned his name was in a Supreme Court case only when a journalist contacted him.
The disputed inquiry did not change the outcome. The Court's decision does not mention Stewart, and the case had proceeded on stipulated facts about what Smith intended to do, rather than on any actual customer she had turned away. The justices ruled on a pre-enforcement challenge, a lawsuit about a conflict that had not yet happened.
Justice Sonia Sotomayor wrote the dissent and read it from the bench. The Court, she wrote, for the first time in its history grants a business open to the public a constitutional right to refuse to serve members of a protected class. Public accommodations laws exist to guarantee that businesses open to everyone actually serve everyone.
The majority insisted its ruling was narrow, limited to genuinely expressive products like custom websites, and not reaching lunch counters or hotels. Whether that line holds is a question the lower courts will spend years answering.
A business that produces expressive work can now refuse to produce it for same-sex weddings. The case that established it involved a website that was never built, for a couple that may never have existed, brought by a designer who had never been asked.