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In 303 Creative v. Elenis, the Supreme Court held that a website designer had a First Amendment right to refuse to create wedding websites for same-sex couples, even though she would create such websites for opposite-sex couples and despite the fact that her refusal violated a Colorado antidiscrimination law. 303 Creative purports to resolve a tension between freedom of speech and public accommodations laws as applied to “creative professionals” whose products or services are expressive. But this problem is largely theoretical. It did not really exist outside a small handful of ginned-up controversies between purportedly creative wedding-related businesses run by religious conservatives and their largely hypothetical same-sex couple clients. The Court’s doctrinal “solution” to this supposed problem distorts free speech doctrine and needlessly threatens the foundations of antidiscrimination law by characterizing public accommodations laws as not content-neutral. The case may be better understood as a political gesture, operationalizing the “promise” made in Obergefell v. Hodges, that the Court would treat continued, private resistance to same-sex marriage as legitimate and worthy of protection. In delivering on this “promise,” the Court has made the tension between free speech and public accommodations laws worse.
