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Bedrock Protections Before the U.S. Supreme Court

Photo of the Supreme Court building with figures and the words "Equal Justice Under Law"
“Equal Justice Under Law”

The U.S. Supreme Court is hearing several cases this term with important implications for nondiscrimination protections, voting rights, and civil rights.

Among these are two cases, argued on October 31, that address whether colleges and universities can continue to consider race as one factor among many in admissions to ensure a diverse student body and learning environment. GLAD joined a brief supporting the universities’ admissions practices with the National Women’s Law Center, the Leadership Conference on Civil and Human Rights, and more than 30 other organizations. Read the brief in Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina.

Merrill v. Milligan, argued in early October by NAACP Legal Defense Fund, the Solicitor General, and private counsel, is a case brought by Black Alabama voters who state that the state’s 2021 redistricting map violates Section 2 of the Voting Rights Act. While Black people represent 27% of the state population, Alabama has only one majority Black district out of 7, giving rise to the claim that the map illegally dilutes the voting power of the Black community.

A Colorado website company that wants to enter the wedding business without serving same-sex couples is the plaintiff in 303 Creative v. Elenis. This case brings the question of whether our nation’s public accommodation laws will continue to prohibit businesses from refusing service to people because of their sexual orientation or gender identity, their religion, their sex, or their race.

[If] you run a business, no matter what you make or how you think or feel about it, once you open your doors to the public, you serve everyone.

The company is aided by the Alliance Defending Freedom (ADF), the legal organization advancing many religion-based challenges to nondiscrimination laws. Their team seeks to use the First Amendment’s protection of free speech to turn away same-sex couples they would rather not serve. ADF and the business claim that abiding by Colorado’s nondiscrimination law would compel them to convey a message with which they disagree, i.e., support for same-sex couples’ weddings.

Sellers and service providers are free to express their beliefs, religious and otherwise, like every other individual — that is a fundamental liberty protected by the constitution. But as a nation, we also agreed a long time ago that if you run a business, no matter what you make or how you think or feel about it, once you open your doors to the public, you serve everyone.

GLAD submitted a friend-of-the-court brief co-authored with the National Center for Lesbian Rights, Lambda Legal, and a team of lawyers at White & Case LLP chronicling the development of nondiscrimination laws in public accommodations, that is, public-facing businesses. These federal and state laws, from the 1964 Civil Rights Act to the Colorado law at issue in this case, have been enacted and enforced to realize our nation’s aspirations of full citizenship and equal participation in a free marketplace for everyone.

“Our public accommodation laws are a unifying force that respects the rights of every person to obtain the goods and services they need to live their lives.”

Historically, the Supreme Court has flatly rejected 1st Amendment challenges to nondiscrimination laws. In the 1968 case Newman v. Piggie Park, a barbecue restaurant argued it should not have to serve Black customers equally because doing so would mean conveying a message of support for integration, which was against the owner’s “sincerely held religious beliefs.” The Court said such a claim was “frivolous” and made clear that what the restaurant owner tried to cast as “speech” was the exact type of conduct that public accommodation laws were enacted to prohibit — the act of discrimination in turning someone away because of who they are.

That understanding of our nondiscrimination laws has held for over half a century and should also hold today. To grant the far-reaching and unprecedented exemption sought by 303 Creative risks turning us back towards a time when commercial businesses could blatantly deny access to not only LGBTQ+ people but also Black, Irish, Jewish, Catholic, or Asian Americans, as well as women, people with disabilities, and people of many faiths.

“Our public accommodation laws are a unifying force that respects the rights of every person to obtain the goods and services they need to live their lives,” says Mary Bonauto, GLAD Senior Director of Civil Rights and Legal Strategies. “The change sought here would take us backward to a time when sellers regularly turned people away because of who they were. But we agreed long ago that that is not the country we want to live in.” GLAD is watching this case closely and urging the Court not to make a drastic change in the law that will lead to more discrimination, polarization, group-based animosity, and people struggling to get the goods and services they need.

“People shouldn’t have to call ahead to find out whether a business will serve people of their faith or their race or if they will be denied service because they are LGBTQ+,” Bonauto adds. “Exclusion and segregation in the public market harm us all.”

303 Creative v. Elenis is scheduled for oral argument on December 5. Read GLAD’s friend-of-the-court brief.