303 Creative SCOTUS Ruling Is Signal to Keep Fighting, Activists Say

The U.S. Supreme Court’s ruling in 303 Creative Services v. Elenis isn’t cause for panic, but it underlines the need to continue the fight for LGBTQ+ equality, say civil rights activists outraged by the decision.

The high court ruled Friday that Colorado web designer Lorie Smith’s free speech rights entitle her to refuse service to same-sex couples seeking wedding websites, even though state law bans discrimination based on sexual orientation.

While the ruling is limited in scope, it sets a dangerous precedent because it sets the stage for other exceptions from antidiscrimination law, LGBTQ+ advocates are pointing out, and it comes at a time when legislatures in conservative states are attacking the community. The fight against discrimination must continue at both the state and national levels, both legislatively and in the courts, they note.

“Today’s smug attack on civil rights law will have limited practical impact in the marketplace because few commercial services involve original artwork and pure speech offered as limited commissions,” said a statement from Lambda Legal Chief Legal Officer Jennifer C. Pizer. “But today’s narrow decision does continue the Court majority’s dangerous siren call to those trying to return the country to the social and legal norms of the nineteenth century because it jettisons without even acknowledging what was part of the legal test for decades.”

“Given the uniquely creative service at issue here, the impact is likely to be minimal,” Pizer added. “But the door has been opened for potential future cases to expand this limited carve-out. We will be vigilant against that possibility.”

Transgender Legal Defense and Education Fund Legal Director David Brown issued a statement making similar points: “Today’s disturbing ruling creates a new license to discriminate, allowing some businesses to use their disapproval of LGBTQ people to justify refusing to sell us services. However, it is important to note the limits of the decision as well. This license to discriminate only applies to those who sell their original and tailored, expressive service while carefully vetting each project for alignment with their own views.”

Nonetheless, with this case, anti-LGBTQ+ forces are “chipping away at our rights one small piece at a time,” Brown said.

The ruling is “extremely disappointing,” but importantly, it “does not strike down all antidiscrimination protections,” Denise Spivak, CEO of CenterLink, an association of LGBTQ+ community centers, emphasized in her statement. “Unfortunately, today’s decision does undermine the civil rights laws that protect all of us from discrimination in our daily lives, and in recent years, the Supreme Court has issued a series of decisions that make this country less safe for LGBTQ people, women, and people of color,” she added.

“The Supreme Court held today for the first time that a business offering customized expressive services has the right to violate state laws prohibiting such businesses from discrimination in sales,” noted a statement from David Cole, legal director for the American Civil Liberties Union. “The Court’s decision opens the door to any business that claims to provide customized services to discriminate against historically marginalized groups. The decision is fundamentally misguided. We will continue to fight to defend laws against discrimination from those who seek a license to discriminate.”

“For decades, public accommodations law has guaranteed that businesses open to the public should be open to all on equal terms,” said a statement from Equality Florida. “While today’s ruling does not change that principle, it does create a foothold for refusing customized, ‘expressive services’ that would compel the creator to share a message with which they disagree.” But “importantly, the ruling neither creates a broad license to discriminate nor wholesale repeals vital civil rights protections.”

“As states continue passing harmful laws that seek to dehumanize and erase the existence of LGBTQ+ people, we are disappointed to see the Supreme Court deliver yet another blow by allowing business owners’ personal prejudice to overcome decades of legal precedent,” Beth Littrell, senior supervising attorney at the Southern Poverty Law Center, said in a news release. “This misguided decision fails to recognize that personal, including religious, beliefs about LGBTQ+ people do not form a constitutional basis to discriminate against LGBTQ+ people in public accommodations.”

Smith was represented by the Alliance Defending Freedom, a legal nonprofit known for fighting LGBTQ+ equality and abortion rights. ADF’s other clients have included Masterpiece Cakeshop owner Jack Phillips, the Colorado baker who asserted his right to refuse to create a custom wedding cake for a same-sex couple, in violation of the state’s antidiscrimination law. In 2018, in another ostensibly narrowly tailored ruling, the Supreme Court vacated the Colorado Civil Rights Commission’s decision penalizing Phillips, as the high court found the commission had shown insufficient respect for his religious beliefs.

The court’s assertion in the Masterpiece Cakeshop ruling that there is not a broad right to discriminate is inconsistent with its decision in 303 Creative, said Praveen Fernandes, vice president at the Constitutional Accountability Center.

“If observers struggle to reconcile today’s decision with the Court’s assurance a mere five years ago in Masterpiece Cakeshop that religious and moral objections to same-sex marriage would not permit ‘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,’ it is because these positions are irreconcilable,” Fernandes said in a written statement. “What has changed is not the text and history of the Constitution, but the composition of the Court.”

Since the Masterpiece Cakeshop decision, Justice Anthony Kennedy, who wrote the majority opinion, has retired, and Justice Ruth Bader Ginsburg, an LGBTQ+ rights advocate who dissented from it, has died. Both were replaced by conservative justices appointed by Donald Trump — Brett Kavanaugh and Amy Coney Barrett, who were in the 6-3 majority in 303 Creative.

Also, Justice Neil Gorsuch, who wrote the 303 Creative decision, is a Trump appointee — and Trump had the opportunity to select him for the court because Republican Sen. Mitch McConnell, then Senate Majority Leader, blocked President Barack Obama’s nomination of Merrick Garland after Justice Antonin Scalia died. So when Trump became president, he nominated Gorsuch, and the Senate confirmed him.

Right-wing groups such as ADF must bear their share of blame for the 303 Creative ruling, noted Sarah Kate Ellis, president and CEO of GLAAD. “This decision will bring harm and stigma to LGBTQ families and is yet another example of a Court that is out of touch with the supermajority of Americans who believe in fundamental freedoms and know that discrimination is wrong,” she said in a news release. “Businesses that are open to the public should serve all in the public. Not one LGBTQ couple sought the business’ services so this case is a massive abuse of the judicial system and part of a coordinated effort from groups like the Alliance Defending Freedom to leverage corrupt extremist justices to roll back rights of marginalized Americans. The decision does not reflect a country that supports LGBTQ people and recognizes our relationships are equal, valid and valued.”

To put such support into law, it’s crucial for Congress to pass the Equality Act, which would establish nationwide antidiscrimination protections for LGBTQ+ people in employment, housing, public accommodations, and more, said Allen Morris, policy director at the National LGBTQ Task Force Action Fund. “None of us are free unless all of us are free,” he said in a statement. “We are here and will continue to fight for the protection we deserve. Stand with us by renouncing any form of discrimination against our community and contacting your congressmember to ensure the Equality Act is a must-pass bill for this congressional session.”