Experts weigh in on what’s next after 303 Creative ruling Sources find reasons to be apprehensive but also hopeful

By CHRISTOPHER KANE | ckane@washblade.com

Following the U.S. Supreme Court’s ruling in 303 Creative v. Elenis, three experts connected with the Washington Blade to share their analysis of the case and expectations for what may come after the fallout.

James Dale was the named plaintiff in Boy Scouts of America v. Dale, a case challenging the organization’s policy of excluding homosexuals from its membership that was decided by the Supreme Court in 2000. The majority opinion in 303 Creative, authored by Justice Neil Gorsuch and joined by the Court’s five other conservative justices, cited Dale’s case dozens of times.

Beth Littrell is the Southern Poverty Law Center’s senior attorney, having previously worked on litigation teams at Lambda Legal and the ACLU, including on a case that Justice Sonia Sotomayor highlighted in her widely read dissenting opinion in the 303 Creative case.

Christopher Cooper is a civil rights attorney who serves as director of legal affairs and legislative initiatives at the Rainbow Youth Project, having previously worked at the U.S. Department of Justice’s Civil Rights Division.

All objected to Friday’s ruling that plaintiff Lori Smith may on First Amendment grounds refuse to provide services requested in connection with same-sex weddings, notwithstanding Colorado’s law prohibiting businesses from discrimination on the basis of sexual orientation. The sources fear future cases will seek to widen the aperture for the types of businesses that may claim similar exemptions on the basis of their proprietors’ faith beliefs.

While unsurprising given the Court’s conservative supermajority, Littrell said the decision was nevertheless “a kick in the teeth.”

“Public accommodation laws play such a critical role in ensuring that vulnerable populations have access to the marketplace,” she said, adding that they are “only a small part way of getting the country to some modicum of equal justice, equality, for vulnerable populations.”

The majority opinion in 303 Creative takes pains to distinguish some services provided by Smith’s business as constituting original works of artistic expression, but when it comes to the applicability of its ruling, Littrell said the Court did not make “that distinction very clear.”

“And more than that,” she said, “I don’t know that there is a distinction here.”

“The way public accommodation laws generally work is there is no distinction — that you open your doors, and where there are anti-discrimination laws, you have to abide by them,” Littrell said.

With this majority opinion, the conservatives have “basically said that you have a constitutional right to discriminate if you’re doing anything” that constitutes “artistic or other expression,” Cooper said.

The ruling will be followed by “a lot of litigation,” he added.

Littrell said she has “some realistic fears that it’s opening the door — that [businesses] that offer pure speech will be the first shoe to fall and that there will be cases to follow” as well as instances in which firms discriminate against or otherwise turn away customers “under the justification that there’s either some expressive elements to the services that are being requested or other individual liberties that are protected by the Constitution.”

“I have no doubt that conservatives and people who want to be able to discriminate against those they disagree with, or people they don’t want to associate with, will attempt to push the boundaries” of the ruling, Littrell said.

“If we crack the door on allowing discrimination of any type against any protected class of people,” Cooper warned, “someone will open the door wide open.”

“Many religious groups do not believe in inter-racial, inter-faith, or even divorcee marriages,” he said, “And keep in mind that any moral or ethical belief about what is ‘right and wrong’ that are sincerely held with the strength of traditional religious views may meet the definition of a sincerely held religious belief.

The three sources also noted unresolved questions around whether the plaintiff suffered legally cognizable injury or received even one request to render services that would constitute speech about same-sex marriage with which she disagrees.

Smith was represented by the right-wing impact litigation group Alliance Defending Freedom, which is deemed an anti-LGBTQ hate group by the Southern Poverty Law Center.

“I always thought the Supreme Court took cases based on real facts and real people, not ones that a right wing group like the Alliance Defending Freedom creates out of thin air to justify future discrimination,” said Dale.

Anti-LGBTQ forces on the right, whether they endeavor to pass hateful bills in the legislatures or create them with the courts, have been known to rely on “myths and misconceptions” and have demonstrated they will “stoop to ginning up a case,” Littrell said.

“You know,” Cooper said, Gorsuch tells Justice Sotomayor “‘You’re imagining things and creating scenarios that this does not cover,’” but at the same time, his majority opinion is “basically base[d]” on “a scenario that may or may not have happened.”

Reporting in the New Republic has cast doubt on the veracity of a document filed by Smith and her counsel, ADF CEO Kristen Waggoner, that purports to show a request filed by a prospective client for services from 303 Creative in connection with a same-sex wedding.

“I’m hopeful that we’re marching in the right direction, that there’s some swings in the pendulum — and we’re certainly experiencing some backsliding — but that in the end this decision will be cabined in some way,” Littrell said. Sotomayor’s powerful dissent notes that with 303 Creative, “a business open to the public” has been granted “a constitutional right to refuse to serve members of a pro- tected class” for the first time in the Court’s history. She detailed some of the ways in which LGBTQ people have been harmed by the sting of discrimination over the years, including with an anecdote from a real case filed in 2017.

“Imagine a funeral home in rural Mississippi agrees to transport and cremate the body of an elderly man who has passed away, and to host a memorial lunch,” Sotomayor wrote in her dissent, but “Upon learning that the man’s surviving spouse is also a man, however, the funeral home refuses to deal with the family.”

“Grief stricken, and now isolated and humiliated, the family desperately searches for another funeral home that will take the body,” she wrote. “They eventually find one more than 70 miles away. This ostracism, this otherness, is among the most distressing feelings that can be felt by our social species.”

Littrell, who brought that case against the funeral home when practicing at Lambda Legal, said it was remarkable to see the Supreme Court, with a “strong and powerful, big picture” dissenting opinion, “identify a case that was a fight worth fighting.”

Sotomayor had signaled “That was a story worth telling,” Littrell said, “Even though in the end, you know, we didn’t get a precedent out of the case,” which was settled.

Referring to 303 Creative, she said, “As we lose cases that feel so devastating,” it is important to remember “sometimes you lose forward” because they can usher in a change in the tide of public opinion.

Dale said his case followed a similar trajectory. As a young Scoutmaster, he had spoken at a conference about the importance of educators mentoring LGBTQ teens, which, when it appeared in the newspaper, prompted leadership to instruct Dale to cut all ties with the Scouts.

“By five-four decision, the conservative majority on the court gave the Boy Scouts a First Amendment shield, protecting them from New Jersey’s gay rights law, which is kind of what we see going on here,” Dale told the Blade.

While the Scouts won, Dale said it was a “Pyrrhic victory.”

“Ultimately, over the course of, you know, 10, 15 years, the Boy Scouts lost a colossal amount of membership,” he said. “They lost money, they lost funders, they lost the public support and goodwill that essentially made them the Boy Scouts of America.”

“As a result of their victory in the Supreme Court, they had that devastating backlash,” Dale said.

“The takeaway I have now, as we had this kind of narrow defeat in the Supreme Court with this [303] Creative decision: the Supreme Court isn’t the final say,” Dale said.

“That’s not where it ends. It ends with the people and ends with the American public and convincing our families our neighbors our bosses, the people that surround us about why this is wrong.”

“The loss that I experienced was a catalyst for something wonderful,” Dale said. “It was a catalyst for making people speak out and stand up for what they believe in” — putting everyone on the record about where they stand when it comes to anti-LGBTQ discrimination.”