August 19, 2022
Legal Advocates Urge Supreme Court to Reject Effort Seeking Unprecedented Exemption from Anti-Discrimination Law
LGBTQ+ organizations’ friend-of-the-court brief warns the “free speech exemption” sought by petitioners in 303 Creative v. Elenis would undermine the bedrock protections that public accommodations laws have long provided against discrimination based on race, religion, sex, sexual orientation, transgender status and more in the marketplace
LGBTQ+ civil and legal rights advocates today filed a friend-of-the-court brief urging the U.S. Supreme Court to affirm long-standing precedent that preserves equal access to the commercial marketplace for all. They warned that granting the unprecedented “free speech exemption” sought by petitioners in 303 Creative v. Elenis would inevitably lead to increased discrimination based on the religious or other beliefs of the service provider, not only related to LGBTQ+ people or weddings, but across the population.
The brief, co-authored by GLBTQ Legal Advocates & Defenders (GLAD), Lambda Legal Defense and Education Fund, the National Center for Lesbian Rights (NCLR), and White & Case LLP, and joined by the Human Rights Campaign (HRC) and the National LGBTQ Task Force, argues that the broad, unbounded exemption from Colorado’s Anti-Discrimination Act the petitioners seek would undermine the civil rights settlement achieved in the 1964 Civil Rights Act and numerous state laws that we all have access to goods and services from businesses who open themselves up to the public, notwithstanding personal views of the providers. This case threatens to disrupt that bedrock principle.
The brief chronicles the development of nondiscrimination laws in public accommodations, that is, public-facing businesses, to ensure we can all obtain what we need without being turned away for who we are. These laws have been enacted and enforced to realize our nation’s aspirations of full citizenship and equal participation in a free marketplace for everyone, with sellers and service providers free to express their views in other ways. To grant the far-reaching and unprecedented exemption the petitioners seek in this case risks turning us back towards a time when Irish, Jewish, Catholic, LGBTQ+, Asian or Black Americans, as well as women, LGBTQ+ people, people with disabilities, and people of many faiths were blatantly denied access to commercial businesses.
303 Creative v. Elenis was brought on behalf of a website development business seeking an exemption from state nondiscrimination law that would allow them to deny service to same-sex couples if the business decides to market wedding-related websites in the future. The petitioners are seeking a special exception to the Colorado Anti-Discrimination Act, which requires them, and all businesses, to provide their services equally without regard to specified characteristics.
As the organizations note in their brief, granting that exception would be a dangerous change to longstanding law. For decades, courts, including the Supreme Court, have rejected attempts to hollow out public accommodation laws by creating a right in public businesses to exclude customers based on their beliefs and views. Authorizing such an unprecedented exemption would contradict the long-understood agreement that such businesses remain open to all. Changing that rule will lead to more discrimination, more polarization, more group-based animosity and more people struggling to get the goods and services they need.
“Our public accommodation laws are a unifying force that respect the rights of every person to obtain the goods and services they need to live their lives. The proposed change would allow sellers to turn people away for who they are, and not only LGBTQ+ people. People shouldn’t have to call ahead to find out if a business serves people of their faith or other personal characteristics,” said Mary Bonauto, GLAD Civil Rights Project Director. “Exclusion and segregation in the public market harms all of us.”
“We hope the Supreme Court will reject this invitation to create a dangerous loophole in anti-discrimination laws,” said Shannon Minter, Legal Director of the National Center for Lesbian Rights. “We are one country, and ensuring that everyone has equal access to commercial goods and services plays an essential role in preventing social conflict and fragmentation.”
“This case is about the difference between the marketplace of ideas, and the marketplace for shopping,” Lambda Legal Acting Chief Legal Officer Jennifer C. Pizer said. “The business owner pushing this case has been fully free and effective in communicating her ideas about same-sex couples and marriage. Colorado’s law has not muzzled her. But, under decades of settled Supreme Court law, her free speech rights do not, and must not, authorize her to express her ideas by the conduct of rejecting customers when offering her services for sale to the general public. Civil rights laws are there to ensure that “open for business” means “open for business for everyone.”