The U.S. Supreme Court seemed divided during oral arguments Dec. 5 in a case that centered on anti-discrimination policies when they conflict with religious freedoms in public accommodations.
It’s unclear when the court will issue a final decision in the case, but it will likely happen before the court takes a break in June 2023.
In 303 Creative v. Elenis, the court will decide whether an artist or creative business can refuse to sell goods or services to certain groups of people, if doing so contradicts the business owner’s religious beliefs. The lawsuit challenges Colorado’s Anti-Discrimination Act, which prohibits places of public accommodation from denying service to someone based on disability, race, religion, color, sex, sexual orientation, marital status, national origin or ancestry. It’s also unlawful for artists or businesses to announce their intention to do so.
Under the federal Civil Rights Act, businesses that are open to the public cannot refuse to provide goods or services based on a person’s race, color, religion, national origin or disability.
A Colorado graphic designer sued because she wants to expand her graphic design business to create wedding websites, but because of her Christian beliefs, she does not want to design wedding websites for same-sex couples. She said she does provide services for LGBTQ customers for non-wedding websites. She wants to disclose this policy on her own website.
In 2018, the U.S. Supreme Court ruled in a similar case called Masterpiece Cakeshop v. Colorado Civil Rights Commission, which involved a Colorado baker who didn’t want to bake cakes for same-sex weddings. At that time, the court ruled narrowly and did not answer the question of whether a person has a free speech right to stay silent or not create something.
Justices Pose Hypotheticals
Monday’s oral arguments hinged on which businesses are considered public accommodations and which services are considered art or expressive speech.
Kristen Waggoner, the lawyer representing the website designer, compared website designing to protected speech like ghostwriting books, newspaper editing and political speechwriting. But Justice Ketanji Brown Jackson said those aren’t public accommodations the same way that website designing is.
Justice Brett Kavanaugh said he was intrigued by a brief that argued this case involves compelled speech, unlike the bakery case.
Creative vendors can define the content and contours of the product they sell, so long as they sell to everyone, confirmed Eric Olson, the lawyer representing the director of Colorado’s Civil Rights Division. “I call it speech, but you can call it a product if you want,” replied Justice Neil Gorsuch.
“This is not a hotel. This is not a restaurant. This is not a riverboat or a train,” said Justice Clarence Thomas. “I’m interested in the intersection of public accommodations law and speech.”
But most artists aren’t public accommodations, and public accommodation laws don’t specifically exempt artists and expressive speech, Olson said.
Chief Justice John Roberts Jr. mentioned the case Fulton v. City of Philadelphia, in which the Supreme Court found that adoption and foster care are “not the same as a seat on a bus or a room in a hotel.”
Jackson asked about a hypothetical situation where a Santa photography business only allowed white children to take pictures with Santa. “How about people who don’t believe in interracial marriage or about people who don’t believe that disabled people should get married?” asked Justice Sonia Sotomayor. “Where’s the line?”
“In the context of race, it’s highly unlikely that anyone would be serving Black Americans in other capacities, but only refusing to do so in an interracial marriage context,” Waggoner replied.
Justice Samuel Alito Jr. questioned whether it is “fair to equate opposition to same-sex marriage with opposition to interracial marriage.”
Olson said permitting businesses to discriminate against same-sex couples “would empower all businesses that offer what they believe to be expressive services, from architects to photographers to consultants, to refuse service to customers because of their disability, sexual orientation, religion or race. The free speech clause exemption the company seeks here is sweeping because it would apply not just to sincerely held religious beliefs, like those of the company and its owner, but also to all sorts of racist, sexist and bigoted views.”
Justice Elena Kagan argued that this case isn’t about the content of the wedding website, such as wedding date, schedules and wedding registry. She noted that typical wedding websites are “not particularly ideological, and they’re not particularly religious.” But the Supreme Court “has already recognized that there is ideology and different views on marriage,” Waggoner replied.
Sotomayor argued that the content of a wedding website is not the website designer’s message. “You’re not inviting them to the wedding. Lilly and Mary are. So how does it become your message?” Sotomayor asked.
The attorneys general from 20 Republican-leaning states filed a “friend of the court” brief, stating that government can’t use public accommodation laws to compel the expression of citizens who create and sell customized speech.
However, the attorneys general from 21 Democrat-leaning states and the District of Columbia also filed a “friend of the court” brief, noting, “Public accommodations laws serve compelling governmental interests in eradicating discrimination, benefitting our residents and our society. Statutes forbidding discrimination in the marketplace ensure that everyone, regardless of membership in an unpopular group, will have access to goods and services and will not face the significant dignitary harms caused by exclusion from the public sphere—harms that continue to fall on members of the LGBTQ community in our country.”
If the court rules in favor of the website designer, “a print shop that disapproves of women working outside the home could refuse to make business cards for women. A jeweler opposed to interfaith marriages could refuse to design jewelry for a mixed-faith couple. A family photographer with white supremacist beliefs could refuse to offer their services to a Black family. The court must reject this approach,” said Sunu Chandy, legal director of the National Women’s Law Center.