“Unlike yesterday’s affirmative action travesty, today’s smug attack on civil rights law will have limited practical impact in the marketplace … But today’s decision does continue the Court majority’s dangerous siren call to those trying to return the country to the social and legal norms of the Nineteenth Century.”
The U.S. Supreme Court today ruled in favor of a Colorado website design business – 303 Creative – which claimed the owner’s business involves “expression” and is therefore entitled to an exemption from the Colorado Anti-Discrimination Act (CADA) so that she can discriminate against same-sex couples when designing and selling wedding websites. In its ruling, the Court found this particular business engaged in “speech for pay” by creating customized websites for carefully vetted clients using the owner’s original artwork and language. That uniquely creative expression is protected by the First Amendment from being “compelled” by state law when contrary to messages the artist wishes to express.
Lambda Legal Chief Legal Officer Jennifer C. Pizer issued the following statement:
“Unlike yesterday’s affirmative action travesty, today’s smug attack on civil rights law will have limited practical impact in the marketplace because few commercial services involve original artwork and pure speech offered as limited commissions. But today’s narrow decision does continue the Court majority’s dangerous siren call to those trying to return the country to the social and legal norms of the Nineteenth Century because it jettisons without even acknowledging what was part of the legal test for decades.
“Although misguided, today’s decision depends on its limited, uncommon facts – this business owner takes specific commissions, unlike most commercial enterprises that solicit customers widely, and she creates unique artwork for those selected customers. Importantly, the decision also confirms that all forms of discrimination forbidden by Colorado’s law are subjected to the same constitutional standard, and that such laws serve compelling public purposes.
“Still, it is impossible to overlook the fact that this extreme Court majority yet again has set aside decades of sensible precedent that previously required that objective observers of commercial conduct would need to understand that any message conveyed by a commercially available service was that of the business owner rather than that of the customer. Given the uniquely creative service at issue here, the impact is likely to be minimal. But the door has been opened for potential future cases to expand this limited carve-out. We will be vigilant against that possibility.”
Read the Supreme Court opinion here: https://lambdalegal.org/legal_document/us_20230630_303-creative-v-elenis-opinion-of-the-court/
Read the friend-of-the-court brief that Lambda Legal co-authored with GLBTQ Legal Advocates & Defenders, the National Center for Lesbian Rights, the Human Rights Campaign, and the National LGBTQ Task Force in 303 Creative v. Elenis here.