June 30, 2023
Statement on Supreme Court Ruling in 303 Creative v. Elenis
In a 6-3 ruling today the U.S. Supreme Court issued a highly fact-specific decision authorizing a narrow exception to a state nondiscrimination law for a website developer whose work it found involves selecting customers to convey the designer’s message. While the case allows for the first time a limited First Amendment exemption from laws requiring businesses open to the public to offer the goods and services they sell without discrimination, the unusual nature of the transaction in the case suggests the ruling has virtually no application to the overwhelming majority of businesses providing goods and services to the public.
Based on the facts agreed upon by the parties, the Court found that the seller vets and endorses each client, meets with the couple to discuss “unique” stories, creates original artwork, designs and text for each, and explicitly expresses her support for their wedding. All of this, the Court said, pointed to the “expressive” nature of her conduct and justied a narrow exception to the nondiscrimination law. This is different from virtually all businesses that sell goods and services to the public and does not reflect how the overwhelming majority of companies operate.
Mary Bonauto, Senior Director of Civil Rights and Legal Strategies at GLBTQ Legal Advocates & Defenders, issued the following statement:
“While today’s ruling is extremely limited, we are disappointed to see that for the first time, and in the context of LGBTQ+ people who are already facing a “heartbreaking” “backlash to the movement for liberty and equality for gender and sexual minorities,” as the dissent noted, an unprecedented exemption to nondiscrimination laws that have always been considered to forbid conduct, not speech. This is not the broad victory Lorie Smith and her counsel sought – today’s ruling importantly upholds the validity of nondiscrimination laws, including for LGBTQ+ people who may obtain goods and services ‘on the same terms offered to other members of the public’ – but it is not the end of efforts to push LGBTQ+ people and couples into a second class status. GLAD and our movement will resist that effort every step of the way.
For decades, case law and public agreement have upheld the principle that nondiscrimination laws are bound up with first principles of equality, with mutual respect and civic unity, and with our need for goods and services no matter who and where we are. It is crucial to ensure today’s ruling remains limited to the highly specific and customized services the Court found in this case, and is not seen as a green light to assert a free speech defense in other areas of law. Denying services to same-sex couples is out of step with what the vast majority of Americans believe, and the overwhelming majority of Americans, including business owners, strive to treat everyone with dignity and respect as they too want to be treated. Today’s decision from the Supreme Court does not change that.
LGBTQ+ people are family members, co-workers, business owners, and customers in every community and we remain committed to working alongside our neighbors to ensure all people can go about our daily lives and access the goods and services we need without discrimination. As Justice Kennedy summarized for several of the current justices in Masterpiece Cakeshop just 5 years ago, ‘religious and philosophical objections of business owners and other actors in the economy and in society” do not suffice to ‘deny protected persons equal access to goods and services” under public accommodations laws like Colorado’s.’ We will fight to maintain that principle for all of the people protected by nondiscrimination laws.”
GLAD submitted a friend of the Court brief in this case for GLAD, NCLR, Lambda Legal, HRC, The Task Force, and thanks White & Case for its assistance.