At the end of July, the Tenth Circuit Court of Appeals handed down a decision in 303 Creative v. Elenis, et al., (19-1413), a Colorado case concerning whether a wedding web designer could, consistent with her religious beliefs, decline to do web design work for same sex marriages. The Tenth Circuit said no, affirming the district court’s decision. The law at issue was CADA (Colorado Anti-Discrimination Act), the Act which was involved in the Masterpiece Cakeshop case. Under CADA, a public accommodation is “any place of business engaged in any sales to the public and any place offering services, facilities, privileges, advantages, or accommodations to the public.” It has exemptions for places used principally for religious purposes and for some sex-based restrictions. 303 Creative is a web-design company, planning to expand its business to offer design services for websites celebrating weddings. The owner and sole member adheres to religious beliefs that do not condone same sex marriages. In her view, same sex marriages conflict with God’s will. She will, however, provide graphics and website design services to LGBT customers purposes. She will not provide services to anyone for same-sex marriages. She also plans to include in her website a statement explaining her religious objections. The issue is, then, focuses on whether her religious objections to same-sex marriage survive CADA or she must provide design services for same-sex marriages if she offers design services for opposite sex marriages.
I pass over the discussions of standing and injury. They are interesting, but not necessary to discussion of the substantive holding. To the substance then. First, the Court found that 303 Creative’s creation of websites is pure speech. “[C]reating a website ... implicates Appellants’ unique creative talents, and is this inherently expressive.” (22) The Accommodation Clause [of CADA] also ‘compels’ Appellants to create speech that celebrates same-sex marriages.” (24) Because the Accommodation Clause compels speech -- if 303 serves opposite-sex weddings it must serve same-sex weddings, it is a content-based restriction. (25) Hence, strict scrutiny applies, i.e., Colorado must articulate a compelling state interest and show that the restrictions are narrowly tailored to achieve that purpose. (26) The compelling state interest is “protecting both the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace.” While the Accommodation Clause is not narrowly tailored to prevent dignitary harms, it is narrowly tailored to ensuring equal access to available goods an services. (27-8) “The question then becomes whether Colorado’s interest in ensuring access to the marketplace generally still applies with the same force to Appellants’ case specifically -- i.e., ‘whether [Colorado] has such an interest in denying an exception to [Appellants].’” (29)
Excepting Appellants from the Accommodation Clause would necessarily relegate LGBT consumers to an inferior market because Appellants’ unique services are, by definition unavailable elsewhere. As discussed above, our analysis emphasizes the custom and unique nature of Appellants’ services, For rthe same reason that Appellants’ custom and unique services are speech, those services are also inherently not fungible. To be sure, LGBT consumers may be able to obtain wedding-website design services from other businesses; yet, LGBT consumers will never be able to obtain wedding-related services o the same quality and nature as those that Appellants offer. Thus, there is no less intrusive means of providing equal access to those types of services.
Amici dispiute whether subjecting businesses to the Accommodation Clause ultimately chills commerce by discouraging businesses from entering the market, due to fears that they will be compelled to create objectionable products. ... With respect to amici, we find the dispute beside the point. This case does not present a competitive market. Rather, due to the unique nature of Appellants’ services, this case is more similar to a monopoly. The product at issue is not merely “custom-made wedding websites,” but rather “custom-made wedding websites of the same quality and nature as those made by Appellants.” In that market, only Appellants exist. And, as amici agree, monopolies present unique anti-discrimination concerns. ... It is not difficult to imagine the problems created where a wide range of custom-made services are available to a favored group of people, and a disfavored group is relegated to a narrower selection of generic services. Thus, unique goods and services are where public accommodation laws are most necessary to ensuring equal access. ... To us, whether an exception limits market access depends upon the uniqueness of the public accommodation’s goods and services -- not the sincerity of the public accommodation’s beliefs. (30-2)
Let me stop here for discussion, leaving other aspects of the majority opinion for later consideration.
The market discussion is surprising. The majority seems to be saying that 303 Creative has no competition, it is a monopoly. The services offered by 303 Creative are not available anywhere else (“Appellants’ unique services are, by definition unavailable elsewhere.”) This is, shall we say, a curious claim. First, anyone offering the least bit of customization or design is offering a unique service in this sense. That doe snot, however, tell us that the entity is in a unique, single member market. Web-design and graphics services are big markets. It is just false, in the ordinary everyday meaning of not true, that 303 Creative offers services “unavailable elsewhere.” The services are available from lots of other sources. Her services are unique in the same way every person performing service work is offering something unique, i.e., trivially so. 303 Creative is not unique because it is the only web design service in some geographic market.
The majority do think that a commercial artist, that is, someone providing artistic services for profit, is each and every one in their own market, that none competes with anyone else. That is false. Web designers compete against one another, and each tries for its own mix of offerings to achieve economic success. They also compete against DYI applications. I.e., some generic and cheap and some personalized and more expensive, are all competing for the same general set of consumers. It is a little stranger in that 303 Creative does not yet offer wedding website design services, and, given the decision of the court, likely will not offer such services. So her wedding website design services, unique in the market and so a monopoly, do not even exist yet.
According to the majority, 303 Creative not offering wedding website design services for same-sex weddings illegally constricts the market for same-sex wedding website services, excluding LGBT consumers from that unique market, even though 303 Creative does not offer anyone wedding website services. LGBT consumers are left with an inferior, constricted market -- exactly the market such consumers are already in because 303 Creative has not offered wedding website services to anyone as yet.
On the majority view, every for profit enterprise that offers customized services is in a unique, single firm market. Maybe there is some special, non-economic meaning of “market” in the context of public accommodation law, divorced from economics and the rather well-developed law of competition.
How is any artist selling to the public in Colorado not a public accommodation? Well, maybe the background thought is that public accommodation only matters if the artist engages in discrimination. But that may mean, e.g., a painter cannot specialize in portraits of African-Americans, or Catholic religious paintings, etc.
It is also interesting that the compelled speech cases come in for discussion in the question of standing, but effectively disappear from sight when the merits are discussed. How does this case fit with Hurley, in which the Supreme Court held that the New York St. Patrick’s Day Parade could not be compelled to include a contingent of gay marchers? Is it really just that 303 Creative is for profit and the parade is nonprofit?
In Masterpiece Cakeshop there was extended discussion in the briefs and in argument before the Supreme Court over whether making cakes was sufficiently artistic to take the service outside the scope of CADA. That discussion was based on the view, including caselaw, that artistic creations are within the protections of the First Amendment and subject to public accommodation requirements only in extraordinary circumstances. Requiring speech, which is what is being talked about, is not normally within the scope of legitimate government powers. Well, not so in the Tenth Circuit now. 303 Creative has religious objections to same-sex weddings, wedding web-site design services involve personal artistic speech -- that was agreed by all parties and so given. Requiring 303 Creative to design websites for same-sex weddings looks like compelled speech, and is.
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