After the Supreme Court's 303 Creative Ruling, What Happens to LGBTQ+ Rights?

It has been another controversial year for the conservative U.S. Supreme Court. As a result of a decision that allows business owners to discriminate against LGBTQ+ people under the guise of free speech, legal experts warn that the decision will have repercussions that will change American society for years to come.

In 303 Creative LLC v. Elenis, the court ruled 6-3 in favor of a Christian web designer, making it legal on free speech grounds for businesses that provide custom or expressive services to decline to provide services if doing so was against their beliefs, paving the way for further discrimination against LGBTQ+ people.

The owner of 303 Creative, Lorie Smith, challenged a Colorado law prohibiting discrimination against LGBTQ+ customers.

Colorado’s Civil Rights Division argued that Smith couldn’t deny service to LGBTQ+ couples and that the business must accept all customers, regardless of sexual orientation. However, using a hypothetical situation, Smith was arguing she should not be forced to design wedding websites for LGBTQ+ clients, which violates her religious beliefs and her right to free expression.

Smith filed the lawsuit to prevent the state from enforcing its antidiscrimination law against her. Her complaint is preemptive, as she has not yet designed wedding websites or turned away same-sex couples. However, the Supreme Court agreed to hear it.

One of the unusual aspects of this case was the absence of a discrimination complaint. In fact, Smith sued to advertise that she would not create wedding websites for same-sex couples.

The court’s conservative majority opinion was authored by Justice Neil Gorsuch, with Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson dissenting. According to the Supreme Court, the First Amendment protects businesses from violating their consciences. Smith claimed that making a wedding website for same-sex couples violated her religious beliefs and compelled her to, in essence, speak in a way that she could not support.

“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,” Gorsuch wrote.

Sotomayor took her colleagues to task in a scathing rebuke within her dissent.

“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,” Sotomayor wrote.

Vice President Kamala Harris blasted the Supreme Court’s ruling in a statement.

“When you walk into a restaurant, a hotel, or any business open to the public, you are entitled to be served free from discrimination,” she wrote.

“For years, our nation’s civil rights laws have helped to make that ideal more real. The Supreme Court’s ruling in 303 Creative v. Elenis departs from decades of jurisprudence by creating an exception to protections against discrimination in public accommodations,” Harris added. “On the last day of Pride Month, the Supreme Court has paved the way for businesses across our nation to discriminate in the name of ‘free expression’ — against the LGBTQI+ community, racial and religious minorities, the disability community, and women.”

The vice president at the Constitutional Accountability Center, Praveen Fernandes, tells The Advocate that the conservative justices in the 303 Creative case are misguided.

“There are so many reasons that this ruling is problematic, but the primary one for me as a matter of law is that the court conservative majority invented — out of whole cloth — an exception to the public accommodations laws that states across this nation have used to prevent discrimination and delivery of goods and services,” he says.

Fernandes notes that this ruling does not give corporations the right to refuse services or goods to people based on their sexual orientation or gender identity. Companies like Target, Office Depot, and FedEx Office, which provide a standard array of products or that provide duplication services for otherwise generated documents, should not feel free to try to discriminate since the ruling is relatively narrow in its scope.

“If we’re to take the court at its word and if we’re to look at the decision on its narrowest terms, the conservative majority on the court crafted an exception for businesses like 303 Creative, which offered expressive and customizable services. It’s hard to think of something like just simply Xerox copying something as being expressive,” Fernandes says.

“I think there is a concern that under the logic of the court’s opinion today, as a similarly expressive service or let’s just say 303 Creative itself, a business like 303 Creative could say, ‘We’re not going to do website design for interfaith marriages. Religion is certainly one of the protected categories in this Colorado public accommodation statute. So thinking of other protected categories, they could say, ‘We’re not gonna do services for interfaith marriages [or] we’re not going to do website design services for interracial marriages.”

He warns that the implications of the ruling could be much more comprehensive.

“Arguably, if you wanted to have a birth announcement website or a website for the christening of your child [businesses] could say, ‘Well, we’re not going to do such website services for unmarried couples because we don’t believe in people procreating outside of the institution of marriage.’ So I think there are concerns of a similar sort of small expressive customizable businesses looking at other protected classes and saying, ‘We no longer have to comply with the public accommodation protections that were enacted a long time ago to protect these people, and we’re going to try to bootstrap these denials of services into the court’s opinion today.'”

The director of the National Center for Transgender Equality, Josie Caballero, is distressed by the court’s ruling.

“Every time the Supreme Court issues another corrupt extremist decision, the court loses more legitimacy, and the American people have to pay the price,” Caballero says.

“The 6-3 extreme supermajority is making policy decisions both from the bench and limiting the freedom of people across the country,” she adds. “Their power grab is showing no signs of slowing.”

Stasha Rhodes, the campaign director for United for Democracy, a group pushing for Congress to "rein in" the high court, also denounced the justices’ ruling.

“For decades, our laws have affirmed the basic principle that businesses open to the public should be truly open to the public so that every American has equal access to the commercial marketplace,” Rhodes wrote.

“In its decision today, the Supreme Court once again ignored longstanding precedent to impose its own right-wing ideological biases on our country, granting businesses the right to discriminate against LBGTQ+ individuals and opening the door to more discrimination against the LGBTQ+ community, women, people with disabilities, and against people based on their faith,” Rhodes continued. “As extremists on the Supreme Court try to warp our laws and constitution to reflect their agenda, United for Democracy will keep sending this message: Congress, it’s time to act and check the power of this extreme Supreme Court.”

Senate Majority Leader Chuck Schumer criticized the ruling.

“This ruling on LGBTQ+ rights by the MAGA-right activist wing of the Supreme Court is a giant step backward for human rights and equal protection in America,” he wrote on Twitter. “We will continue to fight to ensure that all Americans — including LGBTQ+ Americans — have equal protection under the law.”

In a statement, Schumer added, “Refusing service based on whom someone loves is just as bigoted and hateful as refusing service because of race or religion. And this is bigotry that the vast majority of Americans find completely unacceptable. By denying LGBTQ+ Americans their fundamental right to nondiscrimination, this decision erodes decades of progress established by the Court, Congress, and public sentiment.”

Alejandra Caraballo, an instructor at the Harvard Cyber Law Clinic, did not hold back in her reaction to the decision and what it means moving forward.

“The Supreme Court just made this legal for ‘creative professions’ to put up on their windows in 303 Creative,” she wrote on Twitter alongside a sign reading, “No gays allowed.”

Secretary of Transportation Pete Buttigieg, the first out gay Senate-confirmed Cabinet official, also criticized the conservative justices’ opinion.

“Discrimination is wrong. Using religion as an excuse to discriminate is wrong - and unconstitutional. The Court’s minority is right: the Constitution is no license for a business to discriminate. Today’s ruling will move America backward,” he wrote.

The Supreme Court ruled in favor of a Colorado baker in 2018 who claimed that making cakes for same-sex weddings violated his rights. That ruling was narrow and only applied to his situation.

The Christian baker, Jack Philips, recently lost an appeal in a new case where he refused to make a birthday cake for a transgender person.