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Creative 303 v. Elenis Analysis

Some believe the U.S. Supreme Court’s decision June 30 in 303 Creative v. Elenis may be one of the most consequential in LGBTQ legal history—a kind of “separate but equal” pronouncement on how the courts should treat LGBTQ people under the law. Others see a “narrow” injury to the right of LGBTQ people to equal protection of the law and one that will come into play very rarely.

The true consequences will likely take many years to realize. That was the case with the notorious and widely harmful 1986 decision in Bowers v. Hardwick. The 5 to 4 decision said states could prohibit same-sex sexual relationships, and it was wielded against LGBTQ people both legally and socially. It took 17 years to overturn.

In that 17 years, seven of the nine justices who were on the high court and voted in Hardwick left the bench, including three of the five who had voted to allow bans on same-sex relationships. One of the five, Justice Sandra Day O’Connor, changed her mind. So, when the vote on so-called “sodomy laws” came up again, in Lawrence v. Texas in 2003, the vote was 6 to 3 to strike down such bans.

Twenty years have passed since Lawrence, and only one justice who was on the bench in 2003 is still there now: Justice Clarence Thomas. He and five of his conservative Republican appointees voted June 30 to approve the first ever exemption to state laws that prohibit discrimination based on sexual orientation in the public marketplace. Thomas is 75; the other five range in age from 51 (Amy Coney Barrett) to 73 (Samuel Alito). If each current justice retires at 80 (the approximate average age that a justice retires these days), and if a pro-LGBTQ president is in office when each retires, and if nobody dies, the soonest 303 Creative might be overturned is 2030.

So, how did this happen?

First, of course, then Republican Senate President Mitch McConnell denied a confirmation vote on Obama nominee Merrick Garland. Then he raced three Trump nominees through, creating a super majority of six conservative Republicans on the court.

With six conservatives on the court, the Alliance Defending Freedom, a national conservative litigation group seeking to undermine equal rights for LGBTQ people—and which was consistently losing at the lower court levels– accelerated its efforts to get appeals to the U.S. Supreme Court.

One case it had in the pipeline was 303 Creative v. Elenis. It involved a website designer, Lorie Smith of Colorado who was willing to say that she was opposed to same-sex marriage for religious reasons and that she had “worries” that a same-sex couple might come to her and ask her to design a wedding website for them. If a gay couple did, she said her Christian beliefs would require her to say no, thus putting her in violation of Colorado’s law against discrimination based on sexual orientation in public accommodations.

There was no evidence that any same-sex couple had ever asked her, and this is a particularly interesting point. Typically, courts won’t take a case unless there is a real –not imagined— conflict. Presumably, the Alliance could not find a website designer who ever faced a real conflict, so it proceeded with Smith and her “worries.” The litigation lost in the district court (which noted that Smith had not been faced with a same-sex couple’s request) and lost in the federal appeals court (which said Smith’s religious beliefs did not exempt her from obeying the law that applies to all businesses).

The next key turning point was when the Colorado attorney general’s office conceded that Smith’s plans to start designing wedding websites would constitute an “expressive” activity –or speech— protected by the First Amendment. Many, if not most, wedding websites simply take information and photos which a couple provides and plug those into existing website templates. Smith claimed that she would pour herself into the creation of each website, so much so that the couple’s wedding website is really her speech, not theirs. So, if Colorado forced Smith to create wedding websites for same-sex couples’ weddings, it would be abridging her First Amendment right to free speech.

And then, oddly, the U.S. Supreme Court agreed to hear the Alliance’s appeal for Smith’s case and, in doing so, stipulated that the only question it wanted to hear arguments about was “Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.”

On its face, the answer seemed obvious: Of course, it does. The court’s question presumed Colorado applied the state law to “compel” Smith to “speak or stay silent.”

As ACLU legal director David Cole said in a New York Times guest column last December, “The right question is whether someone who chooses to open a business to the public should have the right to turn away gay customers simply because the service she would provide them is ‘expressive’ or ‘artistic’.”

How bad is the loss?

LGBTQ legal groups released statements, saying the Supreme Court’s 303 Creative decision was a disappointing but that it would have very little impact. After all, what LGBTQ person or couple would knowingly go to an anti-LGBTQ business to seek a pro-LGBTQ-specific product or service?

Lambda Legal’s Chief Legal Officer, Jenny Pizer, said 303 Creative would have “limited practical impact in the marketplace.”

“Given the uniquely creative service at issue here, the impact is likely to be minimal,” said Pizer. “But the door has been opened for potential future cases to expand this limited carve-out.  We will be vigilant against that possibility.”

A statement released by GLBTQ Legal Advocates & Defenders (aka GLAD) said the “unusual nature” of the 303 Creative complaint “suggests the ruling has virtually no application to the overwhelming majority of businesses providing goods and services to the public.”

Some pro-LGBTQ organizations were a less optimistic. The executive director of the National Center for Lesbian Rights, Imani Rupert-Gordon, issued a statement saying that, “While the Court’s holding is narrow and will apply only to a very small number of businesses, the dissenting justices rightly stress that the decision creates an unprecedented exception to nondiscrimination laws.”

David Cole, legal director for the national ACLU, said the majority decision “opens the door to any business that claims to provide customized services to discriminate against historically-marginalized groups.”

Most non-LGBTQ commentators were occupied with the only other decision released June 30, the court’s last day in the 2022-23 session. That decision, Biden v. Nebraska, had the same 6 to 3 split as 303 Creative. It struck down President Biden’s program to forgive up to $20,000 per person in federal student loan debt. But those media who did comment on 303 Creative, saw things more like Cole.

The court handed a major victory to business owners who oppose same-sex marriage for religious reasons,” said Amy Howe, who writes regularly for the popular scotusblog.com site.

New York Times reporters Abbie VanSickle and Adam Liptak said, “The decision also appeared to suggest that the rights of L.G.B.T.Q. people…are on more vulnerable legal footing, particularly when they are at odds with claims of religious freedom. At the same time, the ruling limited the ability of governments to enforce anti-discrimination laws.”

President Biden issued a statement saying he was “deeply concerned that the decision could invite more discrimination against LGBTQI+ Americans.”

“More 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,” said Biden.

Law professor and MSNBC legal commentator Joyce Vance said in her blog that the 303 Creative decision sets up “an opening here to use the First Amendment to establish the primacy of one group’s religious views in a way that is antithetical to the Founding Father’s vision of a religiously-neutral government.”

“That’s the slippery slope here,” said Vance, “and the rate of descent depends on how far this Court is willing to go.”

Also getting considerable attention from general media were reports that the Alliance Defending Freedom filed documents with the court that included a significant piece of what appears to be false information. Specifically, the documents indicate that Lorie Smith said, under oath, that a same-sex couple had contacted her through her website to ask about creating wedding design for them. This is important because courts do not typically take cases unless an “injury in fact” to the plaintiff’s rights is either actual or “imminent.”

According to the New Republic magazine and numerous other outlets, Smith identified under oath that a man named “Stewart” inquired about retaining her services to design something for his wedding to another man and left a phone number. Media calling the phone number got a “Stewart,” but the man, who would not share his last name, told the media he is not gay, has never contacted Smith to ask about a gay wedding website, has been married to a woman for 15 years, and is himself a web designer. The Alliance’s case, said the New Republic, was “built on nothing much more than imaginary Christian grievance.”

Harvard law professor Laurence Tribe, in a Twitter post Friday said, “If this were a normal court, with real judges in the majority, it would take seriously the news that this was a fraudulent case and would vacate its opinion and direct the imposition of sanctions on the lawyers who hacked the legal system and perpetrated this hoax.”

Twenty-eight states and the District of Columbia have laws on the books which explicitly, or by court interpretation, prohibit sexual orientation discrimination in public accommodations. “Public accommodations” means any business or venue that is open to and/or serves the public, including restaurants, hotels, means of transportation, entertainment or sports venues, and website designers.