303 Creative ruling decried by advocates as legalizing discrimination

By CHRISTOPHER KANE | ckane@washblade.com

The U.S. Supreme Court’s conservative supermajority last week ruled in favor of Lori Smith, the graphic artist who did not want to make wedding websites for same-sex couples despite Colorado’s nondiscrimination law barring discrimination on the basis of sexual orientation.

“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,” Justice Neil Gorsuch wrote in the majority 6-3 decision along ideological lines in 303 Creative v. Elenis.

he liberal ustices, however, called the ma ority s finding of a free speech e emption to nondiscrimination rules “unprecedented,” warning it would blow a hole through these laws and pave the way for anti-LGBTQ discrimination by businesses.

of designing websites for weddings, which provided a basis, however imsy, for the majority to rule as it did, including Colorado’s stipulation that the designer picks and chooses which clients she will serve based on whether she agrees with their viewpoints, that each site she designs is customized and original, and that the sites are ‘art’ and express her own personal views, not those of the clients.

inter said ery few other businesses meet these criteria, so this ruling will have little if any application to ordinary businesses, including those that involve some element of creativity or expression. Under the majority ruling, it is not enough that a service is creative or expressive, the business must selectively choose clients, not open its doors to all, must create a highly customized product, and it must be clear that the product is e pressing the views of the business owner, not the customer. here are very few such businesses.

“Nonetheless, this is a sad day for our country and our Constitution. The majority has gone out of its way to gerrymander an exception to nondiscrimination laws that sends a terrible message—especially to LGBTQ people—at a terrible time, when there is a resurgence of anti- B bias and a backlash against e uality for women, people of color, and B people. I am confident our county will rise above this moment, as we have done in the past, but this is a painful day, inter said.

mong the first advocacy groups to condemn the decision was the ational Black Justice Coalition, a leading Black LGBTQ+ civil rights organization.

“The anti-democratic, segregationist, white nationalistic Alliance Defending Freedom (ADF), which is party to this case, has a well-documented history of using legal strategies to erode LGBTQ+ rights, perpetuating discrimination and stigmatization,” said the Coalition’s Executive Director David Johns.

perilous precedent is set when the D is allowed to manufacture a case in search of a solution to a problem that doesn’t even exist for the plaintiff, undermining the principles of ustice, e uality, and nondiscrimination that are the bedrock of our nation, he said.

ADF, which represented the plaintiff Lori Smith, is described by the Southern Poverty Law Center as an anti-LGBTQ hate group.

inutes later, merica s largest B organi ation, the uman ights Campaign, issued a press release ake no mistake, this case was manufactured by the lliance for Defending Freedom to create a new license to discriminate against LGBTQ+ people,” said C resident elley obinson.

oday 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,” Justice Sonia Sotomayor wrote in her dissent, joined by Justices Elena Kagan and Ketanji Brown Jackson. The liberal justices argued the Colorado law targets conduct, not speech.

“Today is a sad day in American constitutional law and in the lives of LGBT people,” Sotomayor wrote. “The immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status.”

President Biden reacted saying in a statement released by the White House:

“In America, no person should face discrimination simply because of who they are or who they love. he Supreme Court s disappointing decision in Creative C v. Elenis undermines that basic truth, and painfully it comes during ride month when millions of Americans across the country join together to celebrate the contributions, resilience, and strength of the LGBTQI+ community. While the Court’s decision only addresses e pressive original designs, I m deeply concerned that the decision could invite more discrimination against B I mericans. ore broadly, today s decision weakens long-standing laws that protect all Americans against discrimination in public accommodations – including people of color, people with disabilities, people of faith, and women.

When one group s dignity and e uality are threatened, the promise of our democracy is threatened and we all suffer. ur work to advance e ual rights for everyone will continue. hat is why we must pass the E uality ct, which will enshrine civil rights protections for LGBTQI+ Americans in federal law and strengthen public accommodations protections for all Americans. I urge Congress to swiftly send this legislation to my desk.”

Shannon inter, legal director of the ational Center for esbian ights, shared an emailed statement with the Blade:

“As the dissenting justices rightly stress, this is a deeply disappointing decision that, for the first time in our nation s history, holds that the Constitution permits discrimination in the commercial sphere,” adding, “There is no principled basis for this egregious departure from more than a hundred years of precedent.” n the other hand, inter said, the scope of the ruling is incredibly narrow and will not apply to the overwhelming majority of businesses,” but “Unfortunately, the State of Colorado stipulated to a number of ‘facts’ about the designer’s hypothetical service

“Despite our opponents claiming this is a major victory, this ruling does not give unfettered power to discriminate, obinson wrote. his decision does not mean that any LGBTQ+ person can be discriminated against in housing, employment or banking— those protections remain enshrined with federal law.

.S. Sen. ammy Baldwin D-Wis. , merica s first openly gay senator, was among the first members of Congress to address the ruling, writing in a statement he .S. Congressional E uality Caucus, through its chair, .S. ep. ark ocan (D-Wis.), issued a statement arguing that Friday’s “abhorrent” decision “provides a constitutional basis for businesses that provide customized expressive services to discriminate against all marginalized people currently protected by public accommodations nondiscrimination laws.”

“This is about fairness and freedom – about whether LGBTQ+ Americans deserve fairness and freedom to be treated just like everyone else. It is simply wrong to discriminate against any American based on who they are or who they love, and Americans agree. his decision is a step backward in our fight to live up to our nation s ideal of e uality, but we cannot let this activist Supreme Court have the last word. I am more committed than ever to fighting to ensure every merican can live freely and without discrimination.

.S. ep. ark akano D-Calif. , a co-chair of the E uality Caucus, called riday s ruling “horrifying and stunning” in a statement, writing, “Today’s harmful decision opens the door for unimaginable legal discrimination against marginalized people.”

Takano added, “We must expand the Supreme Court immediately.” illions of mericans, wrote the Democratic ttorneys eneral ssociation, have been rightly concerned that the oodgates would open to a raft of legal challenges to vital LGBTQ+ protections.”

The group added, “Between rulings like this, waves of extreme and hateful legislation, and an increase in anti-LGBTQ+ threats and violence, the fact is that this is indeed a frightening time for the LGBTQ+ community.”

GLAAD’s statement noted that “Not one LGBTQ couple sought the business’ services so this case is a massive abuse of the judicial system and part of a coordinated effort from groups like the Alliance Defending Freedom to leverage corrupt extremist justices to roll back rights of marginalized Americans.”