303 Creative v. Elenis: Overview and Implications for LGBTQ+ Communities
Recently the Supreme Court issued a ruling in the case of 303 Creative v. Elenis, in which the Court was asked whether a website designer could refuse services for LGBTQ+ people based on religious liberty and freedom of speech. The Supreme Court’s ruling in favor of 303 Creative stands to deliver a substantial blow to the civil rights and liberties of the LGBTQ+ community and other marginalized populations. Along with the countless number of anti-LGBTQ+ bills being introduced and passed in this county, this is another coordinated attempt to undermine and erode necessary protections for the LGBTQ+ community.
Background of Case
Lorie Smith runs a website design company called 303 Creative, LLC. registered in Colorado. Smith had been providing website creation services and wanted to start making wedding announcement websites. As a devout Christian, Smith disagreed with same-sex marriage, and she wanted to create a notice on her website stating her unwillingness to create wedding websites for same-sex couples. However, doing this would violate Colorado state nondiscrimination laws that prevent public businesses from discriminating against people based on their sexual orientation or gender identity. Smith retained the help of Alliance Defending Freedom (ADF), a well-known anti-LGBTQ+ hate group, for legal support. Smith and ADF then sued the state of Colorado in 2016 to challenge the enforcement of the state’s nondiscrimination law. Smith claimed it was her First Amendment right to turn away same-sex couples because making custom websites is a form of artistic expression and the government doesn’t have the right to force her to engage in expression she disagrees with. Attorneys for Smith argued if Smith was forced to provide wedding websites for same-sex couples, working artists would lose the right to control their commissions which would violate their right to free speech under the First Amendment. A Colorado district court initially ruled in favor of upholding the state’s nondiscrimination law. Then Smith petitioned the U.S. Court of Appeals in 2021, and they also ruled in favor of Colorado. Finally, Smith and ADF appealed this case to the Supreme Court. The Supreme Court agreed to hear the case in 2023.
Smith was able to take this case all the way to the Supreme Court due to legal support from ADF. ADF is a very powerful conservative Christian advocacy and legal group whose goal is to ensure that very specific Christian ideals are at the center of the American legal and legislative policy. ADF touts its work opposing abortion, same-sex marriage, and trans rights. ADF has played a major role in the current surge of anti-LGBTQ+ legislation across the country by supplying model legislation for states to introduce and enact. Another way ADF pushes its agenda is through litigation. ADF has provided legal support in many high-profile lawsuits aimed at eroding the rights of LGBTQ+ communities. For example, in Bostic v. Schaefer (2013) ADF defended a clerk in Virginia who refused to recognize the Supreme Court’s decision legalizing same-sex marriage nationwide. In Brush & Nib Studio, LC v. City of Phoenix (2018),ADF defended a vendor in Arizona who refused to make custom wedding invitations for same-sex couples, citing their right to freedom of religion.
In 2018, ADF took the case of Masterpiece Cakeshop v. Colorado Civil Rights Commissionto the Supreme Court, which in many ways was a direct predecessor to 303 Creative v. Elenis. In the Masterpiece Cakeshop case, a Colorado baker refused to serve a same-sex couple, arguing that the state’s nondiscrimination law violated his First Amendment rights and religious freedom. Local and appellate courts ruled in favor of the Colorado Civil rights Commission and against the baker. In 2018, the Supreme Court reversed the decision of the lower courts, but it was a narrow ruling for this specific shop owner and this specific case. The Court avoided ruling broadly on nondiscrimination laws, religious freedom, or First Amendment rights. The 303 case is another attempt by ADF to challenge nondiscrimination laws with a broader ruling on First Amendment rights.
Ruling and Dissent
In a 6-3 ruling, the Supreme Court ruled in favor of Lorie Smith and ADF. The ruling states that the First Amendment prevents the state of Colorado from compelling certain businesses to offer expressive services to all members of the public. This is an unprecedented decision to allow some businesses to be exempt from nondiscrimination requirements on the basis of freedom of expression. In the majority opinion for the Court, Justice Neil Gorsuch wrote, “the First Amendment’s protections belong to all, not just to speakers whose motives the government finds worthy. 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.”
However, it is important to note that this decision is actually quite narrow, and it does not give all businesses a license to discriminate. The ruling is specific to the particular nature of how Smith conducted her business. Smith worked on a commission basis and vetted clients before deciding to take their business. This process is different from most other businesses that sell goods and accommodations to all members of the public. This ruling is also limited due to the “expressive” nature of Smith’s business. Smith argued that her First Amendment rights were violated because the products she creates are expressive in nature. Her websites convey the stories of the couples, original artwork and designs, and messages unique for each individual situation. The very narrow and specific qualities of Smith’s business mean this decision really only applies for businesses that operate in a similar commission-based system producing “expressive” custom goods or services. As such, this ruling does not apply to the majority of business open to the public and cannot be used as a license to discriminate against LGBTQ+ people.
Even with the narrow scope there are still broader implications and legitimate concern for LGBTQ+ people and any other underserved populations for whom nondiscrimination laws are necessary. In her dissent, Justice Sonia Sotomayor noted that the ruling was the first instance in the history of the Court granting “a business open to the public a constitutional right to refuse to serve members of a protected class.” Justice Sotomayor goes on to note the dangerous precedent that this ruling sets for a gradual erosion of our freedoms, stating, “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].'”
Case Impact
There have already been instances of business owners unlawfully discriminating against LGBTQ+ individuals citing this case ruling. Recently, Dianne Hensley, a justice of the peace in Texas who was previously sanctioned for refusing to sign marriage licenses for same-sex couples, cited the 303 Creative case in a petition with the Texas Supreme Court to award her $10,000 in damages. Additionally, the owner of a Michigan hair salon expressed her intent to refuse service to LGBTQ+ customers in the wake of the decision. In Kentucky, an Attorney General is citing the 303 case ruling in requests to the City of Louisville to drop an appealto overturn a local court’s ruling in favor of a photographer who wanted to deny service to same-sex couples.
Exposing LGBTQ+ people to increased incidences of discrimination and harassment will have real physical and mental health consequences. Research shows that real and perceived discrimination can result inheightened and sustained stress levels, which could lead to increased blood pressure, heart rate, and cortisol secretion. These elevated cardiovascular responses have been linked to coronary heart disease and hypertension. Discrimination can also act as a barrier to seeking healthcare. One study found that 18% of LGBTQ+ adults reported avoiding health care based on expected discrimination. Delaying or avoiding care due to a fear of discrimination can result in worse general health and mental health as measured through an increase in depression, suicidal ideation, and suicide attempts. Even if LGBTQ+ people don’t experience acts of discrimination, research shows that the surge of anti-LGBTQ+ rhetoric and policies alone is taking a toll on LGBTQ+ people’s health, especially LGBTQ+ youth. For example, the Trevor Project’s 2023 National Survey found that nearly 1 in 3 LGBTQ+ young people said their mental health was poor most or all of the time due to anti-LGBTQ+ policies and legislation.
Take Action
It’s impossible to know what the full repercussions of the 303 Creative decision will be, but we are concerned about what this case could mean for future litigation and erosion of LGBTQ+ rights. This ruling will be seen as a victory for anti-LGBTQ+ hate groups and will only encourage more lawsuits and legislation aimed at eroding the rights of queer people. This decision has created a tiny door many people have been waiting years to walk through. That is why it is imperative for us to take action now!
- You can speak out against the Supreme Court’s unprecedented decision by visiting the Human Rights Campaign to voice your dissent on this decision and to fight discrimination against the LGBTQ+ community.
- You can urge your members of Congress to pass the Equality Act. The Equality Act is a federal piece of legislation that would strengthen and expand federal civil rights laws to ensure clear and comprehensive nondiscrimination protections for LGBTQ+ people in all states. Protections would cover employment, religion, housing, credit, education, public spaces and services, federally funded programs, and jury service. Share your support for this landmark legislation buy telling your representatives to re-introduce and pass the Equality Act!
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