The Supreme Court of the United States has ruled that the First Amendment of the Constitution, protecting the freedom of speech, prohibits the state of Colorado from forcing a wedding website designer to create designs depicting same-sex marriages and conveying messages with which she disagrees. What was the Supreme Court’s decision regarding the application of the Colorado Anti-Discrimination Act prohibiting discrimination based on sexual orientation?

When two fundamental rights collide

Colorado’s Anti-Discrimination Act (the Act) prohibits businesses from engaging in discrimination when selling goods and services to the public. Specifically, Section 7 prohibits discriminatory conduct when a person directly or indirectly refuses, withholds from, or denies to an individual or a group, on the basis of his or her sexual orientation, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or other public accommodations.. The Act broadly defines the term “public accommodation”, thus including almost every public-facing business.

Colorado resident Lorie Smith wanted her graphic and website design company, 303 Creative LLC [1], to offer services for couples looking for wedding websites. Yet she was worried about the possibility of the state of Colorado forcing her to also celebrate same-sex marriages on her websites. She considered that this would be a violation of her freedom of speech [2], therefore she filed a lawsuit seeking an injunction to prevent it from happening. Ms. Smith challenged the Act “on free speech, free exercise, and vagueness and overbreadth grounds”.

Ms. Smith’s stipulation before the District Court

Ms. Smith stipulated before the U.S. District Court of Colorado (District Court) that she was willing to work with people regardless of their sexual orientation and gender, and that she had no problem providing her services to clients of any sexual orientation. On the other hand, Ms. Smith defied producing any content that might conflict with her religious belief that marriage is a union between a man and a woman.

Moreover, Ms. Smith stated that her design services are expressive, with original creations which contribute to the overall message of her business. Her intention to design creative, customised, and tailored wedding websites with a close cooperation with individual couples was also to convey a message about her view of marriage. Ms. Smith’s intention was to celebrate opposite-sex marriage, not to discriminate same-sex couples.

Anti-Discrimination Act and the strict scrutiny test

The District Court granted a summary judgement in favour of the opposite side.[3] The Court held that Ms. Smith was not entitled to the injunction she sought. Therefore, she appealed to the 10th U.S. Circuit Court of Appeals (Appellate Court) which held that she had standing to challenge the Act, thus, a sufficient connection to the law. 

However, the Appellate Court held that the Act satisfied strict scrutiny, which is “the highest form of judicial review that courts use to evaluate the constitutionality of laws“ [4], and thus the Act compelled her speech permissibly. The Appellate Court proclaimed that “the protection of minority viewpoints is not only essential to protecting speech and self-governance but also a good in and of itself” and concluded that [c]ombatting such discrimination is, like individual autonomy, “essential” to our democratic ideals”. 

The Chief Judge’s dissent to the Appellate Court’s ruling was crucial because his conclusions highlighted the importance of the First Amendment, which resembles the Supreme Court’s subsequent final judgement. The Chief Judge considered Ms. Smith’s beliefs on religious and philosophical premises. He concluded that the “freedom to differ is not limited to things that do not matter much”, otherwise it would be a “mere shadow of freedom”.

Freedom of speech prevails

The Supreme Court declared that the First Amendment “envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands”, which, according to it, Colorado sought to deny. The Supreme Court proclaimed that “the opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties”. The Supreme Court also stated that “the freedom of speech means all of us will encounter ideas we consider “unattractive”.

Finally, the Supreme Court reversed the Appellate Court’s judgement. The dissent of Justice Sotomayor, however, called for attention towards the danger of discrimination. He pointed out that “discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life”, and that there cannot be any castes in a free and democratic society. To fulfil the promise of freedom, the Government must assure that one dollar will purchase the same thing for two different individuals.

Necessary equilibrium

This case demonstrates that freedom of speech and the necessary protection against discrimination can quite easily collide. In such instances, the proper amount of rationale and humbleness is crucial to the decision in favour of justice. Discrimination of any kind is unwanted and harmful to the modern democratic society. However, we should not fail to consider freedom of speech. As the famous quote attributed to Voltaire says: “I wholly disapprove of what you say and will defend to the death your right to say it”.



[1] Ms. Smith is the founder, owner and sole-member of 303 Creative LLC.

[2] The First Amendment to the Constitution of the United States stipulates that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

[3] Aubrey Elenis, Director of the Colorado Civil Rights Division, members of the Colorado Civil Rights Commission and Phil Weiser, Colorado Attorney General.

[4] For more information visit


Constitution of the United States, as amended. Available from

Hudson, D. L. (August, 2021). Strict Scrutiny. Available from

House Bill 21-1108 Concerning updates to prohibitions against gender-based discrimination to clarify the individuals who are included in a protected class. Enacted by the General Assembly of the State of Colorado. (Colorado Antidiscrimination Act). Available from

Poole, S. (January, 2015). A beginner's guide to Voltaire, the philosopher of free speech and tolerance. Available form

Satta, M. (April, 2023). 303 Creative LLC v. Elenis (10th Circuit) (2021). 303 Creative LLC v. Elenis (10th Circuit) (2021). Available from

Satta, M. (June, 2023). 303 Creative LLC v. Elenis (2023). Available from,of%20Appeals%20ruling%20in%20303%20Creative%20LLC%20v.

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Freedom to differ is not limited to things that do not matter much. Justice or In-justice-1&, autor: John, 26 March 2009, source: Flickr, CC BY-SA 2.0 DEED.