Should Anyone Be Forced to Build a Website?

Aron Solomon

The Supreme Court has agreed to hear a case, in upcoming the 2022 October term, about whether someone who builds websites can be forced to do so for people whose beliefs they don’t share. The case is obviously far more complex than that but, at its core, this is the case’s practical implication.

In 303 Creative LLC v. Elenis, Lorie Smith, a Christian web designer, wanted to add wedding websites to her work. No problem at all there, but she refused to build sites for same-sex weddings. She wanted to post this policy on her site, but state law in Colorado prevents businesses such as hers that are open to the public from discriminating against LGBTQ+ people or even posting a message such as this on their website.

The U.S. Court of Appeals for the 10th Circuit ruled that while the websites that Smith builds are a form of speech, Colorado’s anti-discrimination law does not violate the Constitution here. As abhorrent as the idea of a designer refusing their creative services to people who don't share their values is, there is something about the creative process and being forced to do something that definitely doesn’t sit well here.

The Supreme Court granted certiorari to address the following question presented:

Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech or free exercise clauses of the First Amendment.

The Supreme Court may find that the appellate court missed the foundation of this issue. The 10th Circuit held that Colorado has an interest in ensuring that LGBTQ+ people have access to the quality of wedding websites that Smith builds. While they conceded that people denied service by Smith could have their wedding websites built elsewhere, they could be of “lower quality and nature” than the websites built by Smith.

Reducing the argument to the absurd, what if Smith were to comply with a court order and design deeply abhorrent websites for same-sex couples, including incendiary messages? And what if Smith chose to publish screenshots of the sites they built on her company’s website - very much as wedding photographers highlight images of their clients’ weddings on their website.

In practical terms, this could quickly be a mess, which is what happens when the creative process is coerced. While it would be great to live in a world where talented designers were happy to do their best honest work for people whose beliefs and life choices don’t resonate with their own, this isn’t always the world in which we live.

Michael F. Lombardi, a New Jersey lawyer, observes that:

“This is going to be an important decision because the Supreme Court will be providing practical guidance for businesses that provide creative services. The Court's decision will determine when the business can justifiably claim a religious rights exemption to providing their services to clients.”

It took four consecutive case conferences for the Court to grant certiorari only on a First Amendment freedom of speech argument in this case and not the other issues the web designer asked to be considered, which may be indicative of the complexity of cases involving the Court seeking to strike a balance between sincerely-held religious beliefs and LGBTQ+ rights.

About Aron Solomon

A Pulitzer Prize-nominated writer, Aron Solomon, JD, is the Chief Legal Analyst for Esquire Digital and the Editor of Today’s Esquire. He has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world. Aron has been featured in Forbes, CBS News, CNBC, USA Today, ESPN, TechCrunch, The Hill, BuzzFeed, Fortune, Venture Beat, The Independent, Fortune China, Yahoo!, ABA Journal, Law.com, The Boston Globe, NewsBreak, and many other leading publications.

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Aron Solomon, JD, is the Chief Legal Analyst for Esquire Digital, who has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world.

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