August 2023 | Volume 15, Issue 1

Read the full article from CNN.

According to the article, the United States Supreme Court’s recent decision in favor of a Christian web designer in Colorado who refuses to create websites to celebrate same-sex weddings out of religious objections will have a far-reaching impact on other minority groups and could open the door to a slew of cases seeking to further chip away at civil rights protections in the United States.

In a 6-3 opinion delivered by Justice Neil Gorsuch that was joined by the court’s five other conservatives, the justices said that the First Amendment’s free speech protections permitted the web designer, Lorie Smith, to refuse to extend her services for same-sex weddings.

The ruling was rooted in free speech grounds and could create a massive hole in state public accommodation laws for businesses who sell so-called “expressive” goods, allowing for companies that provide customized, expressive products and services to pick and choose who they work with.

Legal experts said that the conservative majority’s decision is likely to cause confusion about which businesses fit into the description provided by the opinion, and they stressed that members of the LGBTQ community are not the only ones impacted by the ruling.

“I don’t think the court was clear at all. I think it sort of invented categories that don’t exist in commerce. The idea of ‘customized’ or ‘expressive’ services are not categories,” said Elizabeth Sepper, a University of Texas Law professor and expert on public accommodations laws.

“So I think the category of businesses that will be able to claim free speech rights against anti-discrimination laws is not at all clear. But it’s not small,” Sepper added. “There’s going to be a relatively large range of businesses who can lay claim to free speech rights against anti-discrimination laws.”
The experts also warned that the decision in 303 Creative v. Elenis is just the opening chapter in what will likely be years of litigation from people looking to push the limits around state and local laws providing civil rights protections for various minority groups.

Jennifer Pizer, the chief legal officer for Lambda Legal, an LGBTQ rights group, also said the court was not clear on what types of businesses are included within the category the court mentioned.

“I think the issue is the admittedly very broad range of goods and services in society that involve some amount of customizing, some amount of creativity,” Pizer said.

“The decision today does not approve discrimination by anybody and everybody that uses some creativity, some talent, some skill to create a custom product,” she added. “The decision today addresses a particular thing and describes that thing as involving extensive involvement with the customer to create a unique work that involves the artistic expression of the designer.”

The vast majority of Americans live in an area where state or local public accommodation laws exist. As of this month, 22 states, the US Virgin Islands and Washington, DC, had laws on their books that explicitly prohibit discrimination based on sexual orientation or gender identity, according to the Movement Advancement Project, a nonprofit think tank that advocates for LGBTQ rights, while another five states interpret “existing prohibition(s) on sex discrimination to include sexual orientation and/or gender identity.”

Confusion over the scope and meaning of the ruling may be similar to the legal fights following a major gun rights case from last year. In that case, the conservative majority changed the test courts are to use when analyzing the constitutionality of firearm regulations, opening the floodgates for all sorts of gun safety laws to be challenged in federal court.

For instance, the justices agreed to review next term a federal law that bars an individual subject to a domestic violence restraining order from possessing a firearm – a law that a lower court reconsidered in light of the Supreme Court’s decision last year in the Second Amendment case.

The Supreme Court’s three liberal members dissented from the ruling, with Justice Sonia Sotomayor writing that the majority was giving businesses a “new license to discriminate.”

She suggested that the decision’s “logic cannot be limited to discrimination on the basis of sexual orientation or gender identity,” and wrote that it “threatens to balkanize the market and to allow the exclusion of other groups from many services.”
Gorsuch pushed back in a footnote, writing: “Our decision today does not concern – much less endorse – anything like the ‘straight couples only’ notices the dissent conjures out of thin air.”

But legal experts believed that Sotomayor was not crying wolf in her dissent in that the opinion could open up other minority groups to be subjected to the same type of behavior for which Smith sought approval.

“The worry is that this provides a green light to any business owner that they can refuse service to any person on the basis of their identity, whether they’re gay or lesbian, or Jewish or Black, or anything, because they have an objection to those sorts of people being in their business,” said Katherine Franke, a professor at Columbia Law School.

“There was nothing in the opinion that limits it to objections to same sex marriage,” Franke added.
Sepper similarly said that the majority did not specifically limit the decision to LGBTQ people. She said that in other cases from the court in this area, there has been language about race, for example, being different. 

“We don’t see that here in 303 Creative. So this opens the door to race, religion, sex, sexual orientation, national origin discrimination – any kind of discrimination,” she said.

Meanwhile, Colorado Attorney General Phil Weiser said in a statement that the decision promises to “destabilize the public marketplace” enabling all types of businesses to have “a first amendment right to refuse customers because of who they are.”

The court’s decision in 303 Creative represented a notable departure from other major LGBTQ rights cases it has decided in recent years.

In 2020, Gorsuch delivered a massive win to the LGBTQ community when he delivered the majority opinion in a case that extended federal protections to gay, lesbian and transgender workers. And in 2015, the court legalized same-sex marriage nationwide, a long-fought victory for members of the community.

But in the fallout of the Supreme Court’s most recent decision, LGBTQ advocates and experts cautioned that, far from settling the issue at the center of the case, the ruling will likely embolden opponents of LGBTQ rights and spur a fresh wave of litigation that could strip away civil rights protections in other areas of life.

“There’s nothing in this opinion that would limit it to only website design cases, and the rules articulated by the court today could easily also be extended to all range of businesses. Whether it’s employment, housing, any kind of business, and those cases will be the ones coming next,” Franke said.

Pizer doubled down on that point, saying the decision “is poking yet another hole in civil rights laws and it’s likely to be taken as a message justifying a lot more discrimination.”

“I think the big problem here, and it has been and remains a big problem, is that this type of case doesn’t settle the issue,” she said. “It invites a lot more litigation to ascertain where the limits might be.”

Discussion Questions

  1. What is the legal rationale for the U.S. Supreme Court’s decision in this case?
    The majority opinion in this case is based on the “free speech” provision of the First Amendment to the United States Constitution (“Congress shall make no law...abridging the freedom of speech…”). The majority contends that the First Amendment’s free speech protections permitted the web designer, Lorie Smith, to refuse to extend her services to same-sex weddings.

    The majority opinion is also based on the Free Exercise Clause of the  First Amendment [“Congress shall make no law...prohibiting the free exercise (of religion)…”]. Ms. Smith, a professed Christian, claims that her refusal to create websites to celebrate same-sex weddings is based on religious objections.
  2. Consider the following quote from Katherine Franke, a professor at Columbia Law School: “The worry (regarding the majority opinion in this case) is that this provides a green light to any business owner that they can refuse service to any person on the basis of their identity, whether they’re gay or lesbian, or Jewish or Black, or anything, because they have an objection to those sorts of people being in their business.” In your reasoned opinion, is this a legitimate concern? Why or why not?

    This is an opinion question, so student responses may vary.

    In your author’s opinion, since the majority opinion is not restricted to refusal of service to same-sex couples, this could “set the stage” for refusal of service for other discriminatory reasons. This is a legitimate cause for concern, and future judicial decisions may be required to clarify the full import of the Court’s decision.

    For example, what if a hair stylist, an accountant, an auto mechanic, etc., were to refuse services to a Black customer for “religious” reasons? If the distinction is to be made on what constitutes “legitimate” religious grounds, who should determine what is legitimate? The service provider? The customer? Society as a whole? A court?
  3. Do you support or oppose the majority opinion in this case? Explain your response.
    This is an opinion question, so student responses may vary.

    Your author opposes the majority opinion in this case, since support for the denial of services based on sexual identity/orientation violates basic constitutional notions of equal protection of the law (The Fifth Amendment’s Due Process Clause requires the United States government to practice equal protection, and the Fourteenth Amendment’s Equal Protection Clause requires states to practice equal protection).

    Is refusal of service “free speech?” If so, that certainly expands the definition of what constitutes speech.

    On a further note, how can an arbiter (for example, a court) truly determine whether a decision (for example, a refusal of service) is based on religious grounds as opposed to some other reason (for example, a discriminatory one based on spite and/or hate)? Is the court to take the defendant’s word for it?