By Leonard Chan

With the Supreme Court’s recent decision in the case of 303 Creative LLC v. Elenis, they have defined new limits to what government can do to prevent discrimination. With this decision, governments are still allowed some ability to prevent discrimination in businesses that serve the public, but new lines have been drawn.

In this case, the decision applied to a Colorado business that didn’t want to serve LGBT people for a particular service. Could this exception be used more widely to allow discrimination against other marginalized groups and minorities? Quite possibly.

We may be in disagreement about what can be done to prevent discrimination, but all of us, especially those of us that wish for and work towards a more just and civil society, should have an interest in this decision.

The following is a summary report on the case and the actual concluding remarks of Supreme Court Justice Neil Gorsuch (writing for the majority) and Justice Sonia Sotomayor (writing for those in dissent).

Brief Summary of Creative LLC v. Elenis

Web designer Lori Smith, who founded and runs the business 303 Creative, sued the state of Colorado seeking to block Colorado’s enforcement of their Anti-Discrimination Act that would compel her to serve possible LGBT customers that want her to create wedding websites for them. She did not want to provide this service to LGBT customers because of her personal beliefs against same sex marriages.

Since Lori Smith would be using her own creative works to design the websites, her lawyers stated that her First Amendment free speech right would be violated if she was compelled to create a website with which she disagreed.

The Supreme Court majority’s decision ruled in favor of Lori Smith’s suit.

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The justification of the Supreme Court Justices’ opinions for this decision is fleshed out within the full text and is well worth reading.

For those that have a limited amount of time, the following is taken directly from Justice Neil Gorsuch and Justice Sonia Sotomayor’s concluding remarks.

From the Conclusion of the Opinion of the Supreme Court written by Neil Gorsuch

(page 25; page 31 of the PDF file)

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. In the past, other States in Barnette, Hurley, and Dale have similarly tested the First Amendment’s boundaries by seeking to compel speech they thought vital at the time. But, as this Court has long held, the opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong. Of course, abiding the Constitution’s commitment to the freedom of speech means all of us will encounter ideas we consider “unattractive,” post, at 38 (opinion of SOTOMAYOR, J.), “misguided, or even hurtful,” Hurley, 515 U. S., at 574. But tolerance, not coercion, is our Nation’s answer. The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands. Because Colorado seeks to deny that promise, the judgment is

Reversed. (Reversal of the lower courts’ decision in favor of the State of Colorado)

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Justice Sotomayor’s Dissenting Opinion’s Conclusion

Section III, page 35 (page 65 in the PDF file)

Today is a sad day in American constitutional law and in the lives of LGBT people. The Supreme Court of the United States declares that a particular kind of business, though open to the public, has a constitutional right to refuse to serve members of a protected class. The Court does so for the first time in its history. By issuing this new license 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. 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.”

“The truth is,” these “affronts and denials” “are intensely human and personal.” S. Rep. No. 872, at 15 (internal quotation marks omitted). Sometimes they may “harm the physical body, but always they strike at the root of the human spirit, at the very core of human dignity.” Ibid. To see how, imagine a same-sex couple browses the public market with their child. The market could be online or in a shopping mall. Some stores sell products that are customized and expressive. The family sees a notice announcing that services will be refused for same-sex weddings. What message does that send? It sends the message that we live in a society with social castes. It says to the child of the same- sex couple that their parents’ relationship is not equal to others’. And it reminds LGBT people of a painful feeling that they know all too well: There are some public places where they can be themselves, and some where they cannot. K. Yoshino, Covering 61–66 (2006). Ask any LGBT person, and you will learn just how often they are forced to navigate life in this way. They must ask themselves: If I reveal my identity to this co-worker, or to this shopkeeper, will they treat me the same way? If I hold the hand of my partner in this setting, will someone stare at me, harass me, or even hurt me? It is an awful way to live. Freedom from this way of life is the very object of a law that declares: All members of the public are entitled to inhabit public spaces on equal terms.

This case cannot be understood outside of the context in which it arises. In that context, the outcome is even more distressing. The LGBT rights movement has made historic strides, and I am proud of the role this Court recently played in that history. Today, however, we are taking steps backward. A slew of anti-LGBT laws have been passed in some parts of the country (footnote 15), raising the specter of a “bare… desire to harm a politically unpopular group.” Romer, 517 U. S., at 634 (internal quotation marks omitted). This is especially unnerving when “for centuries there have been powerful voices to condemn” this small minority. Lawrence v. Texas, 539 U. S. 558, 571 (2003). In this pivotal moment, the Court had an opportunity to reaffirm its commitment to equality on behalf of all members of society, including LGBT people. It does not do so.

Although the consequences of today’s decision might be most pressing for the LGBT community, the decision’s logic cannot be limited to discrimination on the basis of sexual orientation or gender identity. The decision threatens to balkanize the market and to allow the exclusion of other groups from many services. A website designer could equally refuse to create a wedding website for an interracial couple, for example. How quickly we forget that opposition to interracial marriage was often because “‘Almighty God… did not intend for the races to mix.’” Loving v. Virginia, 388 U. S. 1, 3 (1967). Yet the reason for discrimination need not even be religious, as this case arises under the Free Speech Clause. A stationer could refuse to sell a birth announcement for a disabled couple because she opposes their having a child. A large retail store could reserve its family portrait services for “traditional” families. And so on (Footnote 16).

Wedding websites, birth announcements, family portraits, epitaphs. These are not just words and images. They are the most profound moments in a human’s life. They are the moments that give that life personal and cultural meaning. You already heard the story of Bob and Jack, the elderly gay couple forced to find a funeral home more than an hour away. Supra, at 5–6, and n. 4. Now hear the story of Cynthia and Sherry, a lesbian couple of 13 years until Cynthia died from cancer at age 35. When Cynthia was diagnosed, she drew up a will, which authorized Sherry to make burial arrangements. Cynthia had asked Sherry to include an inscription on her headstone, listing the relationships that were important to her, for example, “daughter, granddaughter, sister, and aunt.” After Cynthia died, the cemetery was willing to include those words, but not the words that described Cynthia’s relationship to Sherry: “‘beloved life partner.’” N. Knauer, Gay and Lesbian Elders 102 (2011). There are many such stories, too many to tell here. And after today, too many to come.

I fear that the symbolic damage of the Court’s opinion is done. But that does not mean that we are powerless in the face of the decision. The meaning of our Constitution is found not in any law volume, but in the spirit of the people who live under it. Every business owner in America has a choice whether to live out the values in the Constitution. Make no mistake: Invidious discrimination is not one of them. “[D]iscrimination in any form and in any degree has no justifiable part whatever in our democratic way of life.” Korematsu v. United States, 323 U. S. 214, 242 (1944) (Murphy, J., dissenting). “It is unattractive in any setting but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States.” Ibid.

The unattractive lesson of the majority opinion is this: What’s mine is mine, and what’s yours is yours. The lesson of the history of public accommodations laws is altogether different. It is that in a free and democratic society, there can be no social castes. And for that to be true, it must be true in the public market. For the “promise of freedom” is an empty one if the Government is “powerless to assure that a dollar in the hands of [one person] will purchase the same thing as a dollar in the hands of a[nother].” Jones v. Alfred H. Mayer Co., 392 U. S. 409, 443 (1968). Because the Court today retreats from that promise, I dissent.

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Footnote 15: These laws variously censor discussion of sexual orientation and gender identity in schools, see, e.g., 2023 Ky. Acts pp. 775–779, and ban drag shows in public, see 2023 Tenn. Pub. Acts ch. 2. Yet we are told that the real threat to free speech is that a commercial business open to the public might have to serve all members of the public.

Footnote 16: The potential implications of the Court’s logic are deeply troubling. Would Runyon v. McCrary have come out differently if the schools had argued that accepting Black children would have required them to create original speech, like lessons, report cards, or diplomas, that they deeply objected to? What if the law firm in Hishon v. King & Spalding had argued that promoting a woman to the partnership would have required it to alter its speech, like letterhead or court filings, in ways that it would rather not? Once you look closely, “compelled speech” (in the majority’s facile understanding of that concept) is everywhere.

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Links of Interest

- We Don't Serve Your Kind Here: Public Accommodations and the Mark of Sodom by Joseph William Singer (article written for the 50th anniversary of the Civil Rights Act of 1964)

- Wikipedia article on the Civil Rights Act of 1964

- Wikipedia article on 303 Creative LLC v. Elenis

- Actual Supreme Court decision text on 303 Creative LLC v. Elenis

- ACLU’s amicus brief on 303 Creative LLC v. Elenis

- Article: ACLU Files Amicus Brief Urging Supreme Court to Reject Attempt to Weaken Civil Rights Law