Life, Liberty, and the Pursuit of Happiness. America’s guiding light to a more just society. In simple terms, they are the very definition of dignity. We have, throughout our history, strived to make this dignity more accessible. It has pushed us from revolution to civil wars, emancipations, and generational changes. Each time it has guaranteed more of us equal protection under the law — the ability, in other words, to be fully and equally included within the American polity. This is the dignity that our American dream promises.
But where is this dignity found today for gay Americans? Where is this dignity found in the Supreme Court’s 303 Creative LLC v. Elenis case? It is utterly absent in the majority opinion. The opinion found that Lorie Smith, owner of 303 Creative, a Colorado website design company, has the right to deny some of her services to gay couples. In other words, the First Amendment can be a shielding blanket for discrimination –– but only discrimination toward gay Americans. The Court does not explicitly strike down the law central to this case, the Colorado Anti-Discrimination Act, but rather prohibits the state from justly enforcing it. Practically, this opinion claims that states may have laws prohibiting discrimination; they just may not, in certain circumstances, utilize them to protect gay people. No such dignity can be found here.
Only in reading the dissenting opinion can we find aspects of America’s guiding principles and hope for a more just future. The Court’s majority was incorrect in its assessment of the past legal precedent. Indeed, the majority opinion is full of inconsistencies and hypocrisy. When we look at the majority opinion, we find no extra emphasis on accurate precedent but instead lingering elements of prejudice — that is, greater care for incidental burdens of the speech of one group compared to the direct violation of another’s civil rights.
A foundational document to public accommodation law and civil rights in this country is Title II of The Civil Rights Act of 1964, which clearly states that all individuals within the United States have a civil right to enjoy public accommodations fully. It should be noted that this section specifies that any potential discrimination cannot be based on “race, color, religion, or national origin.” Nonetheless, this sentiment is also essential for the protection of LGBTQIA+ Americans. A public accommodation, as defined by the Americans with Disabilities Network Association, refers to “businesses including private entities that are open to the public or that provide goods or services to the public.”
When we examine the 303 Creative case, it is apparent that Lorie Smith does operate a public accommodation. Further, Title II distinguishes a place of public accommodation as operations that “affect commerce,” and continues by including services and goods that one would typically think of as having a relationship to the First Amendment’s right to speech, such as films, performances, athletic teams, or other types of entertainment. As an operator of a public accommodation, Lorie Smith therefore does not have the right to deny service based on race, color, religion, or national origin.
Some may point out that Title II does not explicitly prevent discrimination based on sexual orientation or sex more broadly. Regardless, it does not mean that people of a sexual or gender minority have not been established as a protected class. This is apparent in Bostock v. Clayton County, when the Court applied the sex-based protection of Title VII of The Civil Rights Act to LGBTQIA+ people, ruling that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.” Granted, Title VII deals exclusively with employment and not public accommodation. Still, it is a relevant application of the law which should protect same-sex couples from discrimination.
Then, the Colorado Anti-Discrimination Act comes into play. In the spirit of the 14th Amendment’s Equal Protection Clause, CADA extended public accommodation protection past the criteria found in the 1964 Civil Rights Act to include “creed … sex, sexual orientation, gender identity, gender expression, marital status…or ancestry.” Thus, this law recognizes LGBTQIA+ people as a protected class within the state of Colorado. It is then illegal for public accommodations in Colorado, like 303 Creative, to deny same-sex couples “full and equal enjoyment” of their services and goods based not only on the sexual orientation of the couple but also the sex. We may look at Bostock v. Clayton County for the reasoning behind this.
Interestingly, Justice Neil Gorsuch authored the Court’s opinion in both the Bostock case and the 303 Creative case. He, however, has come to different conclusions across the two cases. In the latter opinion, Gorsuch argues that even though Smith intends to sell websites (or her speech), she does not forfeit certain First Amendment rights because of it. He opposes the government’s ability to “compel speech from her that she … [does] not wish to produce.” Thus, due to her deeply held religious beliefs regarding marriage, she may choose to only produce speech reflecting said beliefs. And in this case, she may deny marriage services to same-sex couples.
Justice Gorsuch’s line of reasoning regarding speech protection is relatively practical. However, if we extend the Justice’s logic further, it becomes clearly problematic and arguably unjust. What if Lorie Smith held deep convictions related to interracial relationships and refused to sell wedding websites to interracial couples? Would this Court have allowed her to deny service? Would they argue it is violating her speech if they did so?
Unequivocally, no, they would not. Not just because it is morally wrong, but because it horrifically violates the civil rights of potential clients. Justice Sotomayor makes a similar argument in her dissenting opinion of this case. Some go further, like constitutional scholars Laurence Tribe and Jeffrey Abramson, who question the premise of Smith’s rights of expression being hindered, claiming that “no reasonable observer would attribute to the website designer the message that she endorses gay marriage merely because, as required by a state antidiscrimination law, she designs a website for a couple regardless of their sexual orientation.”
By purely looking at the legislation and precedent, it seems clear that it is not only illegal under Colorado law but unconstitutional for any public accommodation to deny a service or product to a same-sex couple that they would otherwise offer to a heterosexual couple. By adopting these types of actions, a public accommodation selectively offers services to specific customers based solely on their protected characteristics. Thus, a public accommodation denies certain members of society equal enjoyment of goods and services provided by their public accommodation.
Then what is so unique about this case? Why is it unclear that Smith intends to discriminate or deny equal enjoyment of her public accommodation? Smith claims CADA violates her First Amendment right to speech because the Colorado government would hypothetically require her to produce wedding websites for same-sex couples. It is hypothetical because Smith had yet to begin creating wedding websites at all when she filed her suit. This begs the question if she had standing to sue in the first place.
Nonetheless, Smith justifies her reasoning for not wanting to provide wedding services to couples of the same sex on the grounds that it “contradicts biblical truth,” and she does not wish to use her websites to promote something that she disagrees with. This, however, should not give her the right to deny service. She states that she is “willing to work with all people regardless of classification such as race, creed, sexual orientation, and gender” — just not if they are seeking a wedding website. She is only willing to work with heterosexual couples for wedding services. She, in turn, is only providing some services to gay couples.
The Constitution guarantees Smith the right to express her opposition to gay marriage for any reason. This right is explicit in the First Amendment. She may not, however, at least according to the recent Masterpiece Cakeshop v. Colorado case, utilize such rights to “deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”
The idea of citizens, like Smith, utilizing a First Amendment defense to deny fellow citizens a good or service is not new. This history is also detailed in the dissent. In 1964, after the passage of the Civil Rights Act, Ollie McClung, owner of Ollie’s Barbecue, wanted to serve only white customers in his store. He claims he was willing to have Black customers utilize take-out services only. However, Title II required him to serve all customers in the store. Thus, Mr. McClung found Title II to hinder his “rights of persons in their personal convictions.” The Court, in Katzenbach v. McClung, unanimously disagreed with him.
Then, in 1968, in Newman v. Piggie Park Enterprises, the owner of Piggie Park Enterprises, Maurice Bessinger, derived his self-perceived right to deny services to Black citizens in the First Amendment’s right to freedom of religion. He believed that racial integration “contravenes the will of God.” This defense, however, did not satisfy the Court then.
But why does it satisfy the Court now? Simply put, those sitting on the Court now do not see LGBTQIA+ Americans as protected by similar defenses. They, in fact, turn a blind eye to them. Those in the majority decision claim that Smith is the victim. They say the government would coerce her speech by forcing her to provide services equally — however, the government is not regulating her speech. The government does not tell her what she may or may not say on those website designs, only that she cannot deny this product to customers based on their sex or sexual orientation.
With this decision, the Court failed to uphold the beacons of American identity, equality, and justice for those who most need it. While it may appear that the Court operates one body of government, this decision severely limits the ability of governmental action. This ruling strong-arms the people’s elected legislatures to pass laws enshrining civil rights and prevents their executives from protecting them.
But this story of equality is not new to the history of America. Let us remember that before the 13th Amendment, there was the Dred Scott case. Let us remember that before there was a need for the 19th Amendment, women lost the ability to vote after the American Revolution. Let us remember the era of Bowers v. Hardwick, when anti-sodomy laws prevailed before the landmark protection of same-sex relations in Lawrence v. Texas.
Justice, unfortunately, is not a linear progression. It ebbs and flows; it is complicated and messy. So, let us remember that. Let us not lose hope because of one decision. This decision is only precedent if we allow it to be. With the patience, perseverance, and resilience of America’s democracy and legal system, this decision will one day be disregarded, like the many before it which sought to deny dignity to the citizens of this country.
Senior U.S. Editor
