“In America, no person should face discrimination simply because of who they are or who they love.”[1] The Supreme Court has violated this sentiment on the last day of Pride month by issuing their decision in 303 Creative LLC v. Elenis.[2] The Court’s decision shatters decades of legal precedent that stand for the protection of all people with respect to public accommodations, and leaves the door open to the very type of discrimination that the civil rights movement has fought against for over half a century. As Justice Sotomayor wrote in her dissent, “it is a sad day in American constitutional law and in the lives of LGBT people.”[3]
On June 30, 2023, a 6-3 majority of the Supreme Court held that the First Amendment allows a website design company to refuse to sell wedding websites to same-sex couples, solely on the grounds that they are same-sex couples.[4] In this decision, the Court, for the first time in history, has granted businesses “a constitutional right to refuse to serve members of a protected class.”[5] Businesses owned by the religious far-right have long sought to discriminate on the basis of sexual orientation, and have long claimed that such discrimination was protected expression. Nonetheless, as the dissenting Justice Sotomayor recounts, the Supreme Court has previously been “unwavering in its rejection” that the First Amendment contains within it a right to discriminate.[6] In so doing, the Supreme Court has consistently balanced the idea of a right to free expression so broad that it encompasses invidious discrimination against the necessity of protecting the equal rights and equal dignity of all people. In the end, the Court always determined that discrimination was not expression worthy of protection. That has ended with 303 Creative.
This decision completely ignores this well-established precedent of the Supreme Court, which only five years ago held that:
[W]hile [] religious and philosophical objections are protected, it is a general rule that such objections 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.[7]
The Court was faced with the very same question of whether discrimination in the service of LGBTQ+ people by a business is freedom of expression, but this time it has elected to uphold bigotry. The majority opinion puts decades of good precedent protecting the rights of racial and ethnic minorities, of women, of disabled people, and of any marginalized person at risk.
And while the ruling last week has the potential to curtail the rights of every minority group in the United States, it is an unsurprising tragedy that the discrimination in question was against LGBTQ+ people. Justice Sotomayor rightfully notes that “around the country, there has been a backlash to the movement for liberty and equality for gender and sexual minorities.”[8] Hate crimes against members of the LGBTQ community are rising.[9] Corporations like Target are buckling under extremist, right-wing pressure to drop their support for Pride.[10] In many ways, this ruling is just the latest, and perhaps most devastating, example of the backlash against the dignity that LGBTQ+ people have fought for tooth and nail.
Though the Court seemingly limits its holding to only businesses whose products are considered “expressive,” it remains clear that the pure purpose of the holding is to set the stage for further efforts to exclude LGBTQ+ individuals from the protections of the anti-discrimination laws of the United States and to sanction discrimination based on even the flimsiest religious belief.
At Outten & Golden LLP, we are dedicated to fighting for the rights of all individuals, which includes members of the LGBTQ+ community. All individuals should have equal access to the rights guaranteed by law. Despite the Supreme Court’s ruling in 303 Creative, there are still many laws, including federal laws, that protect LGBTQ+ individuals in the workplace. If you believe you have experienced discrimination, please contact the firm through the “Contact Us” form to begin the Outten & Golden intake process.
[1] Statement from President Joe Biden on Supreme Court Decision in 303 Creative LLC v. Elenis, The White House (June 30, 2023) https://www.whitehouse.gov/briefing-room/statements-releases/2023/06/30/statement-from-president-joe-biden-on-supreme-court-decision-in-303-creative-llc-v-elenis/.
[2] 303 Creative LLC v. Elenis, No. 21 Civ. 476, 2023 U.S. LEXIS 2794 (June 30, 2020).
[3] Id. at *90.
[4] Notably, 303 Creative included in their position facts of a submission from a gay couple that was allegedly entirely fabricated. Indeed, a reporter that spoke to the individual confirmed that his information was on the form but that he had never submitted it and that he was married to a woman at the time it was allegedly submitted. See Melissa Gira Grant, The Mysterious Case of the Fake Gay Marriage Website, the Real Straight Man, and the Supreme Court, The New Republic, (June 29, 2023) https://newrepublic.com/article/173987/mysterious-case-fake-gay-marriage-website-real-straight-man-supreme-court.
[5] Id. at *45.
[6] Id. at *65.
[7] Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1727 (2018).
[8] 303 Creative, 2023 U.S. LEXIS 2794 at *46.
[9] Fact Sheet: Anti-LGBT+ Mobilization in the United States, ACLED, (June 2022) https://acleddata.com/2022/11/23/update-fact-sheet-anti-lgbt-mobilization-in-the-united-states/.
[10] Max Zahn, Target faces criticism from artists involved with Pride month products over response to boycott: ‘Quick to fold’, ABC News (June 7, 2023) https://abcnews.go.com/US/target-faces-criticism-artists-involved-pride-month-products/story?id=99865846.
