303 Creative and the Collision of Free Speech With Civil Rights Law

On June 30, 2023, the last opinion day of a long term, the Supreme Court decided a case about a website that did not exist. Lorie Smith, a graphic designer outside Denver who ran a small business called 303 Creative, wanted to expand into wedding websites. She also wanted to post a notice saying she would not make them for same-sex couples, because of her religious beliefs. Colorado's anti-discrimination law forbids businesses open to the public from refusing service because of sexual orientation, and from announcing that they will. So before any couple had asked, before any site had been built, before any complaint had been filed, Smith sued. Six justices ruled for her. The case was a hypothetical with a real outcome, and that odd beginning is the key to understanding how far it actually reaches.

In short: In 303 Creative v. Elenis, the Supreme Court held that Colorado could not force a designer to create custom wedding websites expressing a message she disagrees with. The ruling protects expressive, made-to-order work; it does not give businesses a general right to turn away gay customers, and most of what state civil rights laws do is untouched.

A lawsuit built before the first customer

Most lawsuits start with an injury. This one started with a fear of one. Smith brought what lawyers call a pre-enforcement challenge, which lets a person ask a court to block a law before it is used against them, as long as the threat is credible. Colorado had already shown it took its law seriously: the state's civil rights commission had pursued Jack Phillips, the Lakewood baker whose refusal to make a cake for a gay couple's wedding reached the Supreme Court in 2018.

Because there was no real transaction, the two sides agreed on a set of facts for the court to work from. That stipulation matters more than anything else in the case. Colorado agreed that Smith's wedding websites would be original, customized, expressive work. It agreed she was willing to serve gay customers in other ways, such as designing graphics for them that did not celebrate a same-sex wedding. It agreed her objection was to the message, not to the person. Once those points were conceded, the question in front of the Court was narrow and almost academic: can a state require an artist to create speech she objects to?

After the decision, reporters found that a wedding inquiry quoted in an early court filing appeared to come from a man who said he had never sent it and was married to a woman. Critics seized on that, but it did not change the outcome, because the case never depended on any actual request. It depended on the agreed facts. That is worth remembering when someone describes the ruling as a sweeping license; the ground it stands on was laid by stipulation.

What Justice Gorsuch wrote, and what Justice Sotomayor answered

Justice Neil Gorsuch wrote for the majority, joined by Chief Justice Roberts and Justices Thomas, Alito, Kavanaugh and Barrett. His argument ran through a long line of compelled-speech cases. In 1943, during the Second World War, the Court ruled in West Virginia v. Barnette that public schools could not force Jehovah's Witness children to salute the flag. In 1977, in Wooley v. Maynard, it held that New Hampshire could not punish a man for covering the state motto on his license plate. And in 1995, in Hurley, a unanimous Court said Massachusetts could not make the private organizers of Boston's St. Patrick's Day parade include a group marching under a gay and lesbian banner, because a parade is speech and the organizers get to choose its message.

From those cases Gorsuch drew a rule: the government may not compel a person to speak its preferred message, and that protection does not disappear because the speaker is paid or sells to the public. Colorado, in his account, was using its anti-discrimination law to force Smith to celebrate something she did not believe in. The First Amendment, he wrote in substance, protects the right to think and speak freely even when the speech is unpopular or the views are wrong.

Justice Sonia Sotomayor, joined by Justices Kagan and Jackson, wrote one of the sharpest dissents of the term. She argued that for the first time the Court had granted a business open to the public a constitutional right to refuse to serve members of a protected class. Her history ran in a different direction: through the inns and common carriers of English law that had to take all comers, through the lunch counters and motels of the civil rights movement, and through the Court's own 1964 decision in Heart of Atlanta Motel upholding the federal public accommodations law. A business, she said, does not get to sell to the public and then decide which members of the public count. She warned that the logic could reach any business willing to describe its product as expressive.

Both opinions are serious. The majority's best point is that nobody, left or right, wants the state deciding which artists must paint which messages. The dissent's best point is that "my product is my speech" is a claim almost any seller can make, and the history of discrimination is full of sellers who dressed exclusion up as principle.

Message versus customer: the line the Court drew

Here is the distinction that does most of the work. Public accommodation laws regulate conduct: whom you serve. The First Amendment protects speech: what you say. Most of the time those never touch. A hardware store selling a hammer is not speaking. A diner serving eggs is not speaking. Under 303 Creative, those businesses still have to serve everyone on equal terms, and Colorado's law still applies to them exactly as it did before.

The ruling covers a much smaller set of transactions, ones with three features at once. The work must be expressive, meaning it carries a message the way a painting, a speech or a custom-written text does. It must be original and customized, not a stock product pulled off a shelf. And the objection must be to the message the work would carry, not to the identity of the customer asking for it. The majority leaned on the stipulation that Smith would sell her other designs to anyone.

So a florist cannot refuse to sell roses from the cooler to a lesbian couple. A photographer probably can decline to shoot a wedding whose message she objects to, if photography of that kind counts as expressive and the refusal is about the event rather than the people, though lower courts will be sorting out photographers, calligraphers, videographers and bakers for years. A web designer who builds sites from a template with the names swapped in has a much weaker claim than one who writes original copy for each couple.

The ruling also says nothing about race, religion, disability or sex discrimination as such. It does not overrule the federal Civil Rights Act of 1964, whose public accommodations section covers race, color, religion and national origin. It does not stop states from requiring that a business sell its ordinary goods and services to everyone. What it does is give expressive businesses a defense they can raise when a state tries to compel a specific message.

Where progressives should be honest about the hard part

It is tempting to treat this case as simple bigotry with a constitutional costume. I think that misreads it, and the misreading costs us.

The compelled-speech principle protects people progressives care about. A Black graphic designer should not be forced to make a flyer for a white nationalist rally. A gay printer should not be compelled to print signs condemning same-sex marriage. A Muslim calligrapher should not have to letter a message mocking the Prophet. When advocates argue that public accommodation laws must reach every expressive commission without exception, they are arguing for a rule that would cut against those artists too. Many of the strongest supporters of LGBTQ equality, including some civil liberties lawyers, said before the decision that a narrow speech exception was defensible.

Colorado's answer was that its law never forced anyone to carry a message; it only forced businesses to offer the same product to all customers. A wedding website for Mark and David is the same product as one for Mark and Sarah. That is a good argument, and the dissent made it well. But the state had stipulated that each site was custom expression, which made the argument much harder to win.

The lesson for advocates is practical. Cases are often decided by the facts the parties agree to before anyone gets to the law. Movements that want to defend civil rights statutes need to pick their test cases, and their concessions, with the same care the other side used here.

Three years on: how the ruling has traveled

Since 2023, the decision has shown up in lower courts in predictable ways. Businesses selling wedding services, from photography to event venues, have invoked it. Courts have generally asked the same questions the majority did: is the work expressive, is it custom, and is the objection to the message or the customer? Results have varied with the facts, which is what a narrow rule produces.

The ruling's logic has also traveled beyond weddings. In March 2026, in Chiles v. Salazar, the Court held that Colorado's ban on conversion therapy for minors, as applied to talk therapy, regulates speech based on viewpoint. That is a different question, about what professionals may say to clients rather than what businesses must create, but it shares the same root: a skeptical Court asking whether a state law aimed at protecting LGBTQ people is in fact a regulation of speech. Anyone tracking where LGBTQ rights and the First Amendment meet should read the two decisions side by side, and the court-watch page keeps the Court's own summaries of this term's opinions in one place.

Meanwhile the underlying patchwork remains. There is still no federal law that explicitly bars discrimination based on sexual orientation or gender identity in public accommodations. The Equality Act, which would add those protections, has passed the House before but has never cleared the Senate. Roughly half the states have their own laws covering sexual orientation in public accommodations; in the rest, a business can refuse a gay customer outright, with no First Amendment argument needed at all. That gap affects far more people than any custom-website case.

What states can still do

Read carefully, 303 Creative leaves states with a lot of room.

They can keep enforcing anti-discrimination laws against businesses that sell non-expressive goods and services, which is almost all of them. They can require that a business which does sell a product to some customers sell the same product to others, provided the product is not custom expression. They can require that businesses not post signs or notices refusing service to protected groups for non-expressive goods. They can investigate cases where a business claims a message objection but is really refusing a customer, which is a fact question courts know how to answer.

States can also close the gap the ruling did not create. In the places without any public accommodation protections for LGBTQ people, the problem is not the First Amendment; it is the absence of a statute. Legislatures can pass one. Advocates who spend all their energy on the hard edge cases at the Supreme Court sometimes neglect the easier work of adding sexual orientation and gender identity to state civil rights codes, where the coverage is far broader and the courts have nothing to say against it.

And states can write laws with the line in mind. A statute that clearly separates refusal of service from refusal to create a specific message is far easier to defend than one that blurs them. That is not surrender. It is drafting that survives contact with this Court.

The people on both sides of the counter

It is worth picturing who this case is actually about. On one side is a small-business owner with sincere religious beliefs, who wants to work in a field she loves without being made to say things she rejects. On the other side is a couple planning the happiest day of their lives who do not want to wonder, every time they call a vendor, whether they will be welcomed or turned away. Most of the time those people live in the same towns, shop at the same stores and send their kids to the same schools.

The ruling does not settle how they should treat each other. It settles a narrow question of what the government may compel. The larger question, of whether a community makes room for everyone, gets answered locally and repeatedly, in which businesses people choose to support, in what their state legislators pass, and in whether neighbors who disagree about marriage can still agree that nobody should be turned away from a diner. In most of the country, polls have shown support for nondiscrimination protections running well ahead of support for same-sex marriage itself, including among many religious Americans. That is common ground worth building on.

What you can do

• Find out whether your state protects LGBTQ customers at all. If it does not, the people who can change that are your state legislators. Type your address into the representatives lookup to get their names and phone numbers, and ask them directly whether they will co-sponsor a public accommodations bill that covers sexual orientation and gender identity.
• Follow the cases that test the line. Wedding photographers, venues and bakers will keep bringing claims under this ruling. The Supreme Court tracker lists this term's opinions with the Court's own summaries, plus the emergency docket, so you can read what was decided rather than what a headline said.
• Support the lawyers who litigate these cases. State and national legal groups defend LGBTQ people in discrimination disputes, often for free. You can find civil rights and LGBTQ+ organizations near you through the organizations directory, sorted by cause and state.
• Read the broader coverage before arguing about it. The topic page on LGBTQ rights gathers current reporting, and it is worth reading what the business owners and the couples in these cases actually said before reposting a summary of either.

The decision drew a line between what a person must sell and what a person must say. Most of civil rights law lives on the first side of that line, and most of the work left to do is there too.