The U.S. Supreme Court on Monday heard oral arguments in 303 Creative LLC v. Elenis, a case that could carry broad implications for whether and in which circumstances states may enforce certain nondiscrimination rules against purveyors of goods and services.
The case was brought by website designer Lorie Smith, who sought to include a disclaimer that her company 303 Creative would not develop wedding announcement websites for LGBTQ couples, but discovered that such a notice would violate Colorado's anti-discrimination laws, which include sexual orientation as a protected class.
Her lawsuit against the state of Colorado, argued by counsel from the anti-LGBTQ group Alliance Defending Freedom, reaches the Supreme Court following the ruling against Smith from the 10th U.S. Circuit Court of Appeals, which created a circuit split with decisions from the 8th Circuit and Arizona Supreme Court. A ruling is expected to come in June.
The fact pattern in 303 Creative closely mirrors the 2018 case Masterpiece Cakeshop v. Colorado Civil Rights Commission, where the Supreme Court declined to rule on the broader legal questions because it found the commission exhibited hostility toward the religious views of the baker who refused to design a custom wedding cake for a same-sex couple.
The high court has since moved substantially to the right, with a 6-3 conservative supermajority. Colorado is one of 20 states that enforces laws prohibiting businesses from discrimination based on sexual orientation, and a ruling that would allow for broadly construed exemptions to be carved out for firms based on their First Amendment protections would carry implications well beyond the context of same-sex marriage.
Monday's oral arguments focused on preexisting and hypothetical cases that were presented by counsel from both parties as well as by the justices, examples whose scope and fact patterns reinforced the breadth of the legal issues at play in 303 Creative.
Colorado Solicitor General Eric Olson and U.S. Principal Deputy Solicitor General Brian Fletcher pointed to the Supreme Court's ruling in Rumsfeld v. Forum for Academic and Institutional Rights, 2006, which found that the federal government may withhold funding from universities that, based on their objections to "Don't Ask, Don't Tell," the now reversed ban on LGBTQs in the military, refuse to grant military recruiters access to their resources.
ADF CEO, President, and general counsel Kristen Waggoner cited the Supreme Court's decision in Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston, 1995, which upheld the right of private organizations to exclude participation by certain groups without interference by the state, even if that intervention by the government was for the purpose of preventing discrimination.
Much of the discussion during the oral arguments centered on what kinds of goods and services may be considered public accommodations and which constitute artistic speech or expression by the business provider. Also at issue were questions such as whether their refusal to accommodate certain events — i.e., same-sex weddings — are tantamount to refusing goods and services to members of a protected class of people under the state's non-discrimination laws.
But the court's conservatives appeared to side with Smith, the web designer. Two of them, Justices Neil M. Gorsuch and Brett M. Kavanaugh, suggested that the court could rule narrowly, but uphold the principle that people in business cannot be forced to promote messages they oppose, the Los Angeles Times reported.
Kavanaugh said that the work of a website designer "involves speech" and, therefore, can be protected under the First Amendment.
LGBTQ rights groups fear the implications of a ruling in favor of 303 Creative
ADF is designated an anti-LGBTQ extremist group by the Southern Poverty Law Center. An amicus brief was filed in support of the government by the corporate law firm White & Case along with a coalition of LGBTQ rights groups and legal advocacy groups: the National LGBTQ Task Force, GLAD, San Francisco-based National Center for Lesbian Rights, Lambda Legal Defense and Education Fund, and the Human Rights Campaign.
"Just two weeks after a shooter killed 5 people, injured 18, and traumatized so many others at Club Q in Colorado Springs, the United States Supreme Court prepares to hear oral arguments in an anti-LGBTQ public accommodations discrimination case from Colorado," wrote the National LGBTQ Task Force in a statement addressing Monday's oral arguments.
Liz Seaton, the group's policy director, highlighted the importance of public accommodations laws and condemned efforts by the opposition to legalize discrimination and segregation in the marketplace. "The brief's most important argument lifts up the powerful amicus briefs of the NAACP Legal Defense and Educational Fund and of the Lawyers' Committee for Civil Rights Under Law," Smith said. "Those two briefs by venerable civil rights organizations provide a detailed history of public accommodations discrimination against Black and Brown people in this country."
HRC's December 5 statement touched on similar themes.
"Granting the unprecedented 'free speech exemption' sought by petitioners in 303 Creative v. Elenis would be a dangerous change to long-standing constitutional and civil rights law," the national LGBTQ rights group stated. "It would inevitably lead to increased discrimination not only related to LGBTQ+ people or weddings, but also for other vulnerable populations including women, people with disabilities, and people of minority faiths. It's crucial that justices of the Supreme Court reject discrimination and affirm the equal dignity of every American."
Likewise, the Congressional LGBTQ+ Equality Caucus released a statement exploring the broad implications that could result from the Court's ruling on 303 Creative: "...the Supreme Court could issue a broad ruling that not only implicates nondiscrimination laws' applications to graphic designers but to a wide range of businesses providing goods and services that have an artistic component. A broad ruling for the graphic designer could not only provide a constitutional basis for discriminating against same-sex couples, but also for discriminating against all marginalized people currently protected by public accommodations nondiscrimination laws."
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