In June 2021, the Supreme Court declined an invitation to overturn Employment Division, Department of Human Resources of Oregon v. Smith, its seminal 1990 case holding that a facially neutral and generally applicable law survives a challenge under the Free Exercise Clause if it is rationally related to a legitimate government interest. However, the Court left the door open for future challenges, with five justices expressing either an outright willingness to overturn Smith or, at a minimum, to give serious consideration to doing so.
Just three months thereafter, another challenge to Smith came through that open door. On September 24, 2021, a Petition for a Writ of Certiorari was filed in connection with 303 Creative LLC, et al. v. Elenis, et al, with the Petitioners – a limited liability company and its owner – framing the questions presented for the Court’s consideration as follows:
On February 22, 2022, the Court granted the writ petition and, along with it, an apparent reprieve for Smith – at least for now. In granting the writ petition, the Court limited the question presented to “Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.” However, although the Court’s question is limited, its ruling may not be.
The underlying case arose because a graphic and website design company intends to (but does not yet) offer wedding website services. The company also intends to refuse to create websites celebrating same-sex marriages, regardless of whether the request for such a website comes from a same-sex couple or a heterosexual individual (such as a friend or a wedding planner) associated with the couple. It also intends to publish a statement regarding the religious motivations behind that refusal. The company and its owner filed a lawsuit prior to offering wedding website services, claiming that they did not want to violate Colorado’s Anti-Discrimination Act by their intended conduct once such services become available.
The Tenth Circuit Court of Appeals held, among other things, that while Colorado’s Anti-Discrimination Act does compel speech (i.e., the creation of websites for both same- and opposite-sex couples), the Act also satisfies “strict scrutiny” review, and therefore survives a First Amendment challenge, despite the First Amendment’s general prohibition on compelled speech. Based on the question presented as limited, the Supreme Court appears poised to revisit this prong of the Tenth Circuit’s decision and through its answer, potentially further increase the burden a public agency must meet to survive “strict scrutiny” review in this type of situation.
If the Supreme Court rules in favor of the petitioner, public agencies could face an increased amount of lawsuits challenging policies on the basis of compelled speech. Employers are strongly encouraged to consult with counsel in connection with complicated questions involving the First Amendment’s free speech and free exercise clauses.