June 15, 2023
At the Supreme Court: 303 Creative v. Elenis Puts Critical Anti-discrimination Protections at Risk
This June, the U.S. Supreme Court will issue a ruling in 303 Creative v. Elenis, in which a business seeks to use the owner’s disapproval of same-sex marriage to justify side-stepping anti-discrimination laws.
The plaintiff, a Colorado website design business, is asking the Court to create a “free speech” exemption from state anti-discrimination laws. For the Court to do so would dramatically reverse decades of both case law and public norms, undercutting the bedrock of assurances we all depend on to access goods and services in the general marketplace every day.
Specifically, 303 Creative, which is subject to Colorado’s LGBTQ- inclusive anti-discrimination law, wants the right to refuse to sell wedding-related websites to same-sex couples. The business says it is entitled to an exemption allowing it to turn away LGBTQ+ people it does not want to serve so that it and other companies are not “compelled to speak” a message of support for same-sex couples by the act of selling its service.
“To be clear, the serious danger in this case is not whether this one business will sell wedding websites to same-sex couples — no couple has asked them to, and in fact, they don’t even sell wedding websites at this time,” says Mary Bonauto, GLAD’s Senior Director of Civil Rights and Litigation Strategies. “The danger is that this business owner seeks sweeping changes to current law ensuring that goods and services are available to all of us regardless of whether people operating the business might approve of their customers or not. For the Court to find a free speech right for stores, shops, and services to discriminate would be a radical departure from iconic precedents that will fuel the escalating efforts to chip away at vital protections for LGBTQ+ people and other groups facing discrimination.”
The Court framed the question in the case as whether an “artist” would be “compelled to speak or stay silent” by virtue of the anti-discrimination law. But the “artist” here is a business open to the general public, and for many decades there has been no question that states are free to regulate businesses — including businesses that use creativity — when they sell their services in the general marketplace, as 303 Creative plans to do. The Supreme Court and lower courts have repeatedly rejected First Amendment claims to the contrary. That’s because denying service to someone because of who they are is discriminatory conduct, not artistry or self-expression.
The impact of a ruling for the business in this case could be staggering. A loss here could take many forms, such as allowing refusals specifically for wedding-related services, creating a specific right to refuse service to LGBTQ+ people, or permitting any business that is open to the public to evade anti-discrimination laws if they can argue their business is “artistic” or “expressive.”
For the Court to grant any constitutional exemption to anti-discrimination laws allowing people to be turned away because of who they are would be a remarkable turning point and incredibly harmful. While this case targets LGBTQ+ people and same-sex couples who seek to marry, a new free speech defense to businesses providing service without discrimination could be invoked against people from all walks of life. Any ruling for 303 Creative also risks being seen by some as a green light to assert a free speech defense in other areas of law.
We remain determined to fight and forge our path forward in these precarious times for our LGBTQ+ community and all Americans’ individual and civil rights. We certainly hope the Court will come to the right conclusion in this case, affirm decades of precedent, and issue a ruling upholding our anti-discrimination laws. But no matter how the Court rules, it is crucial for us all to reaffirm that every individual, regardless of who we are or whom we love, deserves the fundamental freedom to go about our daily lives and access the goods and services we need without discrimination.
UPDATE: On June 30, 2023, the Supreme Court ruled on 303 Creative. Read our statement here.
This story was originally published in the Summer 2023 GLAD Briefs newsletter. Read more.