The Supreme Court’s ruling Friday in favor of a Christian website designer who doesn’t want to make wedding websites for same-sex couples has raised a long list of legal questions. Among them: Are businesses now allowed to refuse to serve same-sex couples or LGBTQ people, generally?
Legal experts have mixed opinions, but most of them say that the answer, at least for the majority of businesses, is no — at least for now.
Justice Neil Gorsuch, who wrote the majority opinion, noted repeatedly that the case, 303 Creative LLC v. Elenis, centered on a very specific type of speech. The website designer’s business provided “expressive,” individualized services and involved “pure speech,” meaning literal written words. However, many businesses provide expressive services, legal experts said.
And, even though Friday’s decision was narrow, some experts said it could be expanded in coming years to slowly chip away at nondiscrimination laws that prevent businesses from discriminating against people based on race, religion, sexual orientation, gender identity, age and other protected classes.
“A hairstylist is expressive, an architect provides an expressive service, a college application essay assistance service is expressive, a photography studio provides expressive services,” said David Cole, legal director of the American Civil Liberties Union, who argued a case before the Supreme Court involving a Christian baker in Colorado who refused to make a wedding cake for a same-sex couple.
“So does this mean that a corporate photography studio could refuse to take portraits of women because of the belief that women should not work outside the home? The majority, said Cole, “does not take on that core question, which is, what is the limit of their decision?”
Christian website designer Lorie Smith sued the state of Colorado in 2016, arguing that its anti-discrimination law — which prohibits discrimination in public accommodations based on race, creed, disability, sexual orientation and other protected classes — violates her right to free speech under the Constitution’s First Amendment. Smith argued that she should be able to refuse to provide her creative services for same-sex weddings, which go against her religious beliefs. She never faced penalties for refusing a same-sex couple and sued on hypothetical grounds.
In its 6-3 ruling on Friday, the court decided in her favor.
Mary Bonauto, who argued on behalf of same-sex couples in Obergefell v. Hodges, the Supreme Court case that granted same-sex couples the right to marriage, called the court’s ruling “a mixed bag.”
Bonauto, who now serves as the civil rights project director at GLBTQ Legal Advocates & Defenders, or GLAD, said she interpreted the court ruling to protect only businesses that offer services as unique and specific as Smith’s.
“The overwhelming majority of businesses out there do nothing like this, nothing like vetting and unique customization per person, per couple and creating unique artwork and designs and texts for each. The fact that this was all in writing was extremely influential to the court,” Bonauto added, referring to Smith’s website designs. “I want to be clear, however, that this does open the door to businesses that want to claim they provide customized services and therefore use that claim to discriminate against people they would prefer to exclude.”
Bonauto acknowledged that the way the public might interpret “expressive” services could differ from the court’s interpretation in its Friday ruling.
“On the one hand, I think many people put a lot of heart into their work, and so they feel like it expresses them. On the other hand, the law is much more limited about what counts as expression,” she said. “And the fact that you, yourself, create original texts out of your own head, your own mind, your own creativity, and write that for someone else, and it’s very customized to the individual, is what the court says is on the side of the line of constituting expression.”
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Anthony Michael Kreis, assistant professor of law at Georgia State University, said “90%, 95% of the kind of ordinary public accommodations, commercial transactions that people have, will remain untouched.” He used as examples sandwich shops, mechanics and hotels, where he said “there’s no expressive content.”
Kreis added, however, that certain creative businesses fall into a “danger zone.” These businesses include florists, cake decorators and DJs, because they do create tailored, expressive content for customers — though they don’t use speech in the same way Smith does.
Erin Hawley, an attorney for the Alliance Defending Freedom, the conservative Christian legal group representing Smith, agreed with other legal experts that the court’s ruling would protect businesses only in cases where “speech is being created.”
“If you’re talking about goods that are so-called off-the shelf, if you had a premade T-shirt, then nondiscrimination laws apply as they usually do, and a shop owner has to sell that T-shirt to anyone,” Hawley said. “On the other hand, if a T-shirt owner, or shop owner, is creating a message, then that’s where the First Amendment applies and says that the government cannot force someone to say a speech-specific message that they disagree with.”
Katherine Franke, the director of the Center for Gender and Sexuality Law at Columbia Law School, doesn’t agree and said the decision could be used by a variety of businesses that don’t want to provide services to certain people.
“There’s a lot of craft that goes into making a good sandwich,” Franke said. “You go into those delis, and they’ve named them after fun things and they put some creativity into it and that’s their signature sandwich. Is that creative activity that’s protected by the First Amendment? Well, kind of after 303 Creative.”
She added that the court’s “sweeping” decision uses the First Amendment to “override what is a democratically determined set of rights for LGBT people, but for a larger class than that as well.”
“We’ve never seen anything like this before, where one’s free speech rights or beliefs expressed through some creative or form of speech in opposition to equality basically gut those equality rights that we’ve enacted through a proper democratic process,” Franke said.
Smith won her case by asserting that Colorado’s nondiscrimination law would violate her freedom of expression, but the First Amendment also includes the freedom of association, which means the right to freely interact with or associate with groups.
Georgetown University law professor Paul Smith — who argued the landmark Supreme Court case Lawrence v. Texas, which found sodomy laws unconstitutional in 2003 — predicted that freedom of association claims are where future lawsuits on this issue will arise.
“What you’re going to start to see eventually is people saying, ‘I run my little inn in this little town somewhere, and I don’t want to have same-sex couples sleeping in one of my bedrooms. I don’t want to be associated with that conduct,’” Professor Smith said. “The freedom of association is a separate First Amendment right they might try to utilize to expand this beachhead that they’ve established into the business world of using First Amendment arguments to establish the right to discriminate.”
He said the court’s decision raises the question of not just which businesses can refuse services, but also to whom — can they refuse interracial couples, for example?
“The court is just embarking on what may be a multi-year process of trying to figure out how far this will go and how to limit it,” he said.
