As current and recent college students, the recent June Supreme Court rulings against student loan forgiveness and affirmative action stood out to many of us, but there was another, even more significant case decided on the last day of Pride Month this year.
In 303 Creative llc v. Elenis, Lorie Smith, the owner and sole employee of the graphic design business 303 Creative, brought a pre-enforcement challenge against the Colorado Anti-Discrimination Act. Smith proposed to start designing wedding websites and planned to establish a policy of denying service to same-sex couples, which violates CADA. In a statement on her website, Smith wrote, “The messages I have received [since the ruling] have shown that there is a lot of misunderstanding and misinformation about the case,” so let’s clarify the facts of the case.
Under CADA, businesses are free to choose what services to offer and what clients to serve, as long as they don’t specifically refuse service based on a protected class such as race, sex, sexual orientation and similar. Smith’s proposal violates CADA in two ways. First, she wants to refuse service to same sex couples, which is prohibited by the free access to public accommodations clause of the law. Second, she wants to include a statement on her website that reads, “I will not be able to create websites for same-sex marriages or any other marriage that is not between one man and one woman. Doing that would compromise my Christian witness and tell a story about marriage that contradicts God’s true story of marriage,” which violates CADA’s communications clause. This is explicit discrimination based solely on sexual orientation.
303 Creative partnered for its case with the Alliance Defending Freedom, a conservative legal and lobbying group which calls itself “the world’s largest legal organization committed to protecting religious freedom, free speech, marriage and family, parental rights, and the sanctity of life.” This organization has long maintained an extreme anti-LGBTQ+ stance. They famously supported Texas’ prohibition of same-sex sexual activity in the 2003 Lawrence v. Texas case, claiming in their brief that “it is reasonable to believe that same-sex sodomy is a distinct public health problem.” The organization maintains that same-sex attraction is associated with pedophilia, most explicitly in the book The Homosexual Agenda: Exposing the Principal Threat to Religious Freedom Today, published in 2003 by Alan Sears, who served as ADF president until 2017. The book claims “it is not too difficult to link homosexual behavior and predatory behaviors toward accessible teenage boys by those in positions of authority” (p. 177).
More recently, Jordan Lawrence, a senior counsel at ADF, was invited to participate in a debate hosted by the Cornell chapter of the Federalist Society. The Society’s interest in engaging with Lawrence and his ideologies represented a local example of a community normalizing and providing a public platform for prejudiced beliefs and practices in the name of free speech. The event was met with condemnation and protests from many members of the Cornell community.
303 Creative argued that by requiring the business to serve same sex couples, the state is requiring Smith to express support for the marriage, violating her right to free speech and religious freedom. Similar arguments which frame discriminatory refusal of service as protected free speech have failed in previous cases. Notably, in the 1964 case Katzenbach v. McClung, the owner of the restaurant Olie’s Barbeque argued that his free speech rights were violated by the requirement that he serve black customers. Local anti-discrimination laws were created to eliminate exactly the type of statement Smith intends to incorporate on her website. For example, the Los Angeles restaurant Barney’s Beanery famously contended that their logstanding tagline “Fagots Stay Out,” [sic] displayed behind the bar and on commemorative matchboxes, was an example of the owner’s free expression until it was finally removed due to a 1985 anti-discrimination ordinance.
In the ruling which dropped on June 30th, the Supreme Court found that businesses which produce “expressive works” have the right to discriminate against customers based on a protected class such as sexual orientation. Justice Sonia Sotomayor wrote the dissent, which argues that discrimination against a protected class such as sexual orientation is illegal conduct and not protected free speech. In her dissent, she emphasized that it is the first time in the court’s history that a ruling would allow “refus[al] to serve a customer based on race, sex, religion or sexual orientation.”
This ruling sets a dangerous precedent. The outcome opens the door for any business to argue that their barbeque restaurant or beanery produces expressive work, and that they now have grounds to deny or refuse customers based on their sexual orientation, sex, race, religion or similar. “If 303 Creative wins here, we will live in a world in which any business that has an expressive service can put up a sign that says ‘Women Not Served, Jews Not Served, Black People Not Served,’ and claim a First Amendment right to do so,” ACLU legal director David D. Cole told The New York Times.
This outcome is disheartening for many, but it is crucial that we take it as a call to action to further guard our rights. Extreme pro-discrimination groups represent a tiny minority of Americans, but they are powerful and well organized. It is crucial that those of us who support inclusion and equal opportunity are equally engaged and organized in order to guard and expand our rights.
Hana Barrett is a Ph.D. student in Plant Pathology and Plant Microbe Biology at Cornell and treasurer of Cornell QGRADS. Delia Tota is a Ph.D. student in Microbiology. Gundeep Singh is a Ph.D. student in Biophysics and co-president of QGRADS. Alex Pasqualini is a Ph.D. candidate in Music and Sounds Studies and co-president of QGRADS. QGRADS can be reached at [email protected]. Comments can be sent to [email protected]. Guest Room runs periodically throughout the summer.