The recent U.S. Supreme Court decision in 303 Creative LLC v. Elenis dealt with the creation of wedding websites, not employment issues. But employers are wondering if the case could impact their anti-discrimination policies and employment actions.
In 303 Creative, graphic designer Lorie Smith brought suit against the state of Colorado. Smith was thinking of expanding her website design business and proactively sought an injunction that would prevent the state from using its Anti-Discrimination Act to compel her to create wedding websites for same-sex couples.
Smith argued that being forced to create such a site would violate her First Amendment right against compelled speech in violation of her beliefs. Smith asserts that it is her sincerely held religious belief that marriage is solely between a man and a woman.
Smith’s request was denied by a lower court. But the Supreme Court reversed that ruling in a 6-3 decision. The majority concluded that by creating a wedding website, rather than selling a routine good or service, Smith would be engaging in “pure speech.” As such, compelling her to create websites expressing views inconsistent with her religious beliefs would violate the Free Speech Clause of the First Amendment.
Potential employer impact
The decision sets a precedent that could influence future cases related to freedom of speech, discrimination, or religious freedom. Furthermore, it has the potential to influence how anti-discrimination laws are interpreted in the employment context.
Potentially, the case could embolden employees who have religious objections to certain types of work to assert their First Amendment rights in the workplace. For example, perhaps an in-house photographer or a social media specialist might refuse to work on a project involving tobacco, alcohol, or contraceptive products using a faith-based objection. If the employer were to terminate the employee for this reason, it’s possible the employee could see Creative 303 as a door to a political discrimination claim.
The ruling in 303 Creative leaves many open questions, including what constitutes “expressive services.” From an employment context, any actual impact is hypothetical at this time. But it’s reasonable to say that employers face additional complexity in crafting and enforcing their own anti-discrimination policies.