303 Creative Preserves Entrepreneurial Spirit of Private Enterprise
The response to the U.S. Supreme Court’s decision to uphold a Colorado web designer’s refusal to offer personal services for same-sex marriages has been surprisingly muted. This is unfortunate because the decision in 303 Creative deserves much more discussion on its merits. The core legal conclusions, supported by a 6-3 majority, have far-reaching implications for preserving a dynamic, entrepreneurially-based economy.
The case, 303 Creative LLC et al v. Elenis et al. (decided June 30, 2023), pitted a web designer against the State of Colorado’s nondiscrimination statutes. These statutes forbid businesses to discriminate against people of racial and ethnic minorities as well as those with different sexual preferences or orientations.
How Much Expression Do Entrepreneurs Have?
The web designer, in this case, was happy to provide general web services to anyone, including LGBTQ+ individuals, except for customized web design services explicitly contracted for gay marriages. The designer’s Christian beliefs and values opposed same-sex (or gender-nonconforming) marriages.
Importantly, during the case, the designer and the state both stipulated that the designer would, and does, provide other design services for anyone to purchase. Given the State of Colorado’s aggressive legal attacks against the owners of Masterpiece Cake Shop (see my blog on the case here), her concern was that the state would go after her with the same relentless pursuit. The consequences for Masterpiece Cake Shop were bankruptcy and social ostracism.
Religious Issues are Incidental to Main Point
On a personal level, both these cases brought mixed feelings. Both cases were decided correctly on judicial principle—a point I will get to below. But, even as a heterosexual Christian believer, I believe contemporary Christian religious practice is deeply flawed.
Current practice fails even to acknowledge contemporary understandings of the psychology (and social psychology) of human sexuality along its varied and complex dimensions. While the sex and gender binary is clearly real and dominant—roughly 5% of people fall outside conventional understandings of heterosexual sexual identification and practice—scripture and Christ’s teachings are far more inclusive than practical Christians recognize.
Moreover, current popular Christian arguments about the scriptural context of sexual orientation fail to recognize the first-century historical and cultural context in which Jesus’s ministry took place.
In short, I would have a much more difficult time working creatively for a gangster rapper than a gay couple wanting to fully commit to a long-term, stable marriage.
Entrepreneurship and Free Speech
But these beliefs, fortunately, are largely irrelevant based on the judicial principles and reasoning underlying 303 Creative. The current case relies almost exclusively on Freedom of Speech principles.
While selling web design services as a commodity, such as templates or producing logos, are largely value-free, designing customized wedding websites implies the designer’s creative expression. Forcing someone to take on a client that works at cross purposes to their own beliefs violates a fundamental, constitutionally protected civil liberty.
“As the Tenth Circuit observed,” the majority opinion in 303 Creative reads, “if Ms. Smith offers wedding websites celebrating marriages she endorses, the State intends to ‘forc[e her] to create custom websites’ celebrating other marriages she does not (p. 10).”
Moreover, the state intends to quash her beliefs as a part of her enterprise. Again, from the majority opinion: “Indeed, the Tenth Circuit recognized that the coercive ‘[e]liminati[on]’ of dissenting ‘ideas’ about marriage constitutes Colorado’s ‘very purpose’ in seeking to apply its law to Ms. Smith (p. 11).” Indeed, “Over time, some States, Colorado included, have expanded the reach of these nondiscrimination rules to cover virtually every place of business engaged in any sales to the public (p. 13).”
And, the core question the Court considered was: “Can a State force someone who provides her own expressive services to abandon her conscience and speak its [the State’s] preferred message instead (p. 19)?”
Can Government Compel Creative Expression?
This case is not about a Christian who wants to express her beliefs in the way she conducts her business. On the contrary, what is at stake is not whether a government can compel business owners to conduct their business in service to serve the state’s interests.
If the matter had been decided otherwise, where a web designer must apply their creative energies in a way that fulfills the state’s public policy goals, no business could operate without the de facto acceptance of the government’s priorities. Indeed, they may even be required to divert and direct the business’ creative energies to service its state interest.
Let’s put this into a more practical context, and one with fewer subjective overtones.
303 Creative Protects All Creative Businesses
As an urban economist, I have been retained to provide various types of economic analysis to evaluate whether local governments have properly used their powers to promote economic development. I choose to work in service to private property owners, support private property rights, and small business owners. I am not under financial pressure to work on cases that run contrary to my values and political beliefs. I have complete control over who I choose to work for.
I have also been successful. I have been retained by various clients and qualified as an expert to provide analysis and testimony in Indiana, Arizona, Ohio, New Jersey, Wisconsin, and Maryland. Based on client feedback, I believe that a key element of my success is my ability to draw on a wide range of experience and knowledge of policy processes to craft unique and compelling arguments.
What if the state, or a private organization, decides they want to retain my services to work against private property owners and small businesses? Moreover, what if the state could tie its economic development projects to serving its priorities and certain categories of individuals?
If the State of Colorado had won in 303 Creative, a scenario in which I would be compelled to provide my services as an economist to serve a client that works contrary to my values is entirely possible. (After all, other experts are retained to present the other side.)
According to the dissent in 303 Creative, simply hanging my shingle out as a service provider means I would have to check these values and priorities at the door and take clients regardless of my personal assessment of the efficacy of their actions. Like many of my peers, I could easily conduct an analysis that destabilizes neighborhoods, undermines private property rights, and expands the scope and power of the state over individuals.
In my case, I would no longer provide these services at all. (And, of course, this is the government’s hope.)
U.S. Supreme Court Protects Entrepreneurial Capitalism
As the majority opinion clearly points out, 303 Creative did not deny access to commodities or services broadly. The designer was not withholding public access to the products they provided as a business (or public accommodation) to all customers. They were restricting how they would direct their personalized, creative energy and for what purpose.
Thus, 303 Creative is a significant win for civil liberties, private enterprise, and the entrepreneurial spirit. It provides judicial protection for entrepreneurial capitalism. It’s also a substantial blow against those hoping to use the state to advance personal political agendas.
The religious overtones of the case are largely beside the more important point that entrepreneurs and other creatives should be able to choose which clients they will work with on this highly personal dimension.