The Supreme Court on Friday greatly expanded the rights of people who want to discriminate against same-sex couples in a case involving an amateur website designer who was never even asked to make a website for a same-sex wedding.
In 303 Creative v Elenis, amateur web designer Lorie Smith asked the court to grant her the right under the First Amendment to refuse service to gay and lesbian couples due to her Christian religious beliefs. But Smith’s request was wholly speculative. She had not been hired to make a website for a same-sex couple and, therefore, had never refused such work. In fact, she’s never made a single wedding website.
Despite the underlying claim being totally made up, the court sided with Smith’s religious liberty argument. In a 6-3 vote, the court’s conservatives ruled that a civil rights law in Colorado that bars anti-LGBTQ+ discrimination violated Smith’s First Amendment speech rights. In doing so, they made it much easier for businesses to discriminate. A new wave of litigation further expanding discrimination is likely to follow.
Smith had claimed that Colorado’s anti-discrimination act, which prohibits denial of goods, services or facilities “because of disability, race, creed, color, sex, sexual orientation, gender identity, gender expression, marital status, national origin, or ancestry”, violated her First Amendment rights by requiring her to take commissions with what she said was a message she did not agree with — specifically, websites celebrating the weddings of same-sex couples.
The court agreed. In the majority opinion, Justice Neil Gorsuch wrote, “the First Amendment’s protections belong to all, not just to speakers whose motives the government finds worthy. In this case, Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.”
“If she wishes to speak, she must either speak as the State demands or face sanctions for expressing her own beliefs,” he wrote.
“The opinion of the Court is, quite literally, a notice that reads: "Some services may be denied to same-sex couples."”
- Supreme Court Justice Sonia Sotomayor
Justice Sonia Sotomayor, joined by the other two liberal justices Elena Kagan and Ketanji Brown Jackson, dissented in another blistering opinion.
“Five years ago, this Court recognized the ‘general rule’ that religious and philosophical objections to gay marriage ‘do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law,’” she wrote. “Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class.”
“By issuing this new licence to discriminate in a case brought by a company that seeks to deny same-sex couples the full and equal enjoyment of its services, the immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status,” Sotomayor wrote. “In this way, the decision itself inflicts a kind of stigmatic harm, on top of any harm caused by denials of service. The opinion of the Court is, quite literally, a notice that reads: ‘Some services may be denied to same-sex couples.’”
Five years ago, the court ruled in Masterpiece Cakeshop, Ltd v Colorado Civil Rights Commission, which began from a substantially similar premise: A same-sex couple had gone to a cake designer and attempted to commission a cake for their wedding. The designer refused, saying that providing services for same-sex weddings violated his religious beliefs and that designing cakes was a form of artistic expression of those beliefs.
In that case, the Supreme Court largely dodged the main question of whether the designer had the right to refuse to offer a gay couple the same service he offered straight couples — instead ruling narrowly that the Colorado Civil Rights Commission had not judged the designer’s religious views neutrally.
Friday’s much broader ruling opens the door for more discrimination. Other businesses with an “expressive” service could be permitted to discriminate against LGBTQ+ people, should they claim that providing their services constitutes speech or messaging they disagree with.
Civil rights groups are already raising the alarm in response to the broadness of the ruling. “The Court’s decision opens the door to any business that claims to provide customised services to discriminate against historically-marginalised groups. The decision is fundamentally misguided,” the ACLU’s legal director David Cole said in a statement.
At the same time, the majority opinion takes space to note that, as a rule, states may take measures to protect LGBTQ+ people from discrimination, and many states have done so by expanding their anti-discrimination laws. This is entirely “unexceptional,” Gorsuch wrote.
“States may ‘protect gay persons, just as [they] can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public. And there are no doubt innumerable goods and services that no one could argue implicate the First Amendment,’” Gorsuch writes. “States are generally free to apply their public accommodations laws, including their provisions protecting gay persons, to a vast array of businesses.”
However, the court holds that “when a state public accommodations law and the Constitution collide, there can be no question which must prevail”. In this case, the First Amendment’s freedom of speech includes the right to decline “expressive” services to LGBTQ+ individuals.
“The First Amendment does not entitle petitioners to a special exemption from a state law that simply requires them to serve all members of the public on equal terms,” Sotomayor’s countered in her dissent. “Such a law does not directly regulate petitioners’ speech at all, and petitioners may not escape the law by claiming an expressive interest in discrimination.”
In a Friday afternoon statement, President Joe Biden condemned the court’s ruling. “While the Court’s decision only addresses expressive original designs, I’m deeply concerned that the decision could invite more discrimination against LGBTQI+ Americans,” he said. “More broadly, today’s decision weakens long-standing laws that protect all Americans against discrimination in public accommodations – including people of colour, people with disabilities, people of faith, and women.”