With contributions from Emily Martin.
303 Creative is a lawsuit manufactured by the extremist Alliance Defending Freedom (ADF) to undermine the Colorado Anti-Discrimination Act (CADA). The Southern Poverty Law Center has categorized ADF as a hate group. Like many state and local anti-discrimination laws, CADA protects people from various kinds of discrimination based on sexual orientation or gender identity, including discrimination by businesses serving the public; these are known as “public accommodations.” Laws like CADA are necessary to protect marginalized communities from mistreatment, including being kicked out of public businesses and denied services.
In 303 Creative, a webdesign business claimed it was interested in beginning to offer custom-designed wedding websites and did not wish to provide wedding websites to gay couples as required. 303 Creative thus brought a lawsuit seeking an exemption from that law based on the First Amendment. Specifically, 303 Creative claimed a free speech right to only design wedding websites for straight couples, arguing if they could not turn away gay couples, Colorado would be illegally requiring it to engage in a form of creative expression that conflicts with the anti-gay business owner’s views. It also sought to be allowed to advertise its wedding website services as being available to opposite-sex couples only, under the same free speech theory. It lost its arguments in the 10th Circuit Court of Appeals, which ruled that CADA regulates commercial activity and does not place any unconstitutional burden on free speech.
The Supreme Court ruled in favor of the business seeking to discriminate, inserting a new loophole into the Colorado Anti-Discrimination Act. The Court found 303 Creative has a free speech right to turn away LGBTQ+ couples wishing to buy a custom wedding website, because creating such websites involves artistic and expressive content. The majority compared the plaintiff business seeking to discriminate to a filmmaker or calligrapher creating unique artworks for each client and emphasized that the business did not refuse to provide other (non-wedding related) services to LGBTQ+ customers
This incorrect decision continues the Court’s trend of privileging right-wing Christian speech over other speech and civil rights interests. It is especially dangerous for the highest court in the land to interpret the First Amendment as a license to discriminate in businesses open to the public during this time of heightened attacks against the LGBTQI+ community, especially trans youth.
It is appropriate to read this decision as a narrow one: the majority opinion emphasized that its decision was based on the expressive, creative nature of the website design business; other types of businesses do not have a free speech right to violate public accommodations law under this decision. However, the danger inherent in this decision is that many businesses and service providers will feel emboldened by this holding to turn away LGBTQI+ people and other marginalized people because of who they are.
The Court should have taken this opportunity to say that if a business is open to all, that means all. As NWLC highlighted in our amicus brief for this case, antidiscrimination laws are necessary to redress the systemic exclusion of women, Black and brown people, and the LGBTQI+ community from core aspects of public life, including the ability to patronize businesses open to the public without fear of discrimination.
This decision underscores the need for Congress to pass the Equality Act, which would provide clear and comprehensive federal protections for LGBTQI+ people. The Equality Act is extremely popular, strongly supported by voters across all ages, races, religions, and political parties. Passing the Equality Act would not forestall businesses raising Constitutional claims related to speech and religion, but would provide additional and necessary, explicit protections in many areas—including public spaces such as shops and businesses that fall into the legal category of “public accommodations.” It would also be a powerful affirmation of core civil rights values.
The many US jurisdictions that do have existing nondiscrimination laws protecting the rights of LGBTQI+ people to access public spaces, including as customers, should prioritize enforcing these existing laws—and should publicize relevant enforcement actions to send a strong message that 303 Creative is NOT a blanket pass for businesses to exclude LGBTQI+ people (or others protected under public accommodations law). The majority of goods and services, including wedding-related ones, will not qualify as custom items that might fall into “expressive speech” as present in this decision.
Organizations and businesses can take action to demonstrate strong, unwavering support for LGBTQI+ communities, not just during Pride month but 365 days per year. It is especially crucial to support transgender people and trans community groups given how some politicians and extremists are attacking transgender youth and all trans and nonbinary people in order to advance their own ambitions.
There is inherent value in supporting LGBTQI+ rights. Additionally, businesses should pay attention to research showing that when a brand commits to protecting and expanding LGBTQI+ rights, adults in the US are twice as likely to buy or use the brand. Overall, people in the US seek out employers and businesses that demonstrate support for the LGBTQI+ community in recruiting, hiring, sponsorship, advertising, and more.
In the wake of 303 Creative, funders can support (a) the strong coalition already working to pass the Equality Act and (b) the emerging need for multi-pronged advocacy to ensure that this negative decision is interpreted and enforced as narrowly as possible. This could include strategic civil rights complaints, amicus briefs, supporting positive interpretation and enforcement by state agencies and Attorneys General, public education and know-your-rights materials, and more.
It will be especially important to monitor and oppose new efforts by extremist groups to use 303 Creative as a steppingstone to further erode civil rights laws through policy and litigation designed to distort existing law on speech, association, and religious freedom. For example, NWLC anticipates that some may try to use 303 Creative to advance arguments that people can also be excluded from public spaces based on race, gender, pregnancy and parenting status actual or perceived LGBTQI+ status.
Like the SFFA case, 303 Creative is an example of the concerted effort by the right to chip away at core civil rights protections and values as part of a broader assault on democratic institutions and norms. y bringing constitutional challenges to the protections. Just as protecting these rights is important for protecting the full civic participation that is the basis for democracy, it is also important for ensuring the rule of law and enabling the majority to ensure protections against invidious discrimination.
As is the case with the SFFA decision, this demonstrates the importance of investment in judicial nominations. The federal district and circuit courts, which decide thousands more cases than the Supreme Court each year, will play a key role in further interpreting the 303 Creative decision and the rights of LGBTQI+ people as more challenges work their way through the lower courts.
There are currently dozens of unfilled judicial vacancies across the country, which provide the opportunity to reshape the federal judiciary with judges committed to equal rights and justice for all. It is critical that judicial vacancies are filled with nominees committed to equal justice and rights for all who understand the impact of the law on women, girls, people of color, LGBTQI+ people, and people with disabilities. Funders can support organizations through engagement in 1) judicial pathways projects that identify and uplift judicial candidates with demographically and professionally diverse backgrounds committed to equal rights and justice for all, and 2) judicial nominations to educate the public and advocate post-nomination for nominees committed to equal justice and rights for all.