Caroline Mala Corbin: How the 303 Creative web designer's case could allow for anti-LGBTQ discrimination. - NBCNewsTHINK
For this reason, the proposed website statement, the second issue, might not be “speech” at all. It depends on the ruling on the first issue. If it turns out that 303 Creative does not have a free speech right to refuse service to same-sex couples, publishing a statement on its website that it will not provide wedding services to gay and lesbian couples could be characterized as discriminatory conduct that triggers no free speech review.
The challenge here is how to classify 303 Creative’s making or refusing to make a website for same-sex couples. Is that pure speech? If so, Colorado’s public accommodations law is unconstitutional unless the government can show that the law is necessary to accomplish a government goal of the utmost importance. Is it pure conduct? If so, it does not trigger, never mind violate, the free speech clause.
Colorado’s law actually bars companies that open their doors to the public from refusing to serve people based on certain characteristics like sexual orientation. That’s a regulation of conduct. If the place of public accommodation is a website designer, it might incidentally affect speech, but the law itself is not targeting speech. Consequently, its odds of being constitutional are much higher than if it were pure speech.
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