Opinion | The Decision in 303 Creative Deals a Blow to Anti-Discrimination Law

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The Court’s decision in 303 Creative v. Elenis carves out a new exception to civil rights laws that prohibit discrimination in the public marketplace. A Christian website designer challenged the Colorado Anti-Discrimination Act, arguing that the law would violate the First Amendment by requiring her company to offer the same services — in this case, custom wedding websites — to people of all sexual orientations.

The court has now endorsed that argument, holding that the First Amendment exempts 303 Creative from Colorado’s requirement because the company offers “expressive” and “customized” services. As Justice Sonia Sotomayor wrote in her dissent, this is the first time the court has granted “a business open to the public a constitutional right to refuse to serve members of a protected class.” This free-speech exemption applies to civil rights laws across the country. It potentially allows a wide range of businesses to discriminate in the name of expression.

Last fall, for my first major assignment in law school, I wrote a mock brief for the respondent’s side in 303 Creative, defending the Anti-Discrimination Act as if I were the attorney representing Colorado. I thought the project might feel personal, but I didn’t expect it to bring up buried family memories.

I have two moms, one a musician, the other a professor and ordained minister. The three of us spent every summer of my early childhood at my grandparents’ house in rural New York, where my musician mom ran a music festival. One day she walked into a local cafe to find a sign bearing an antigay slogan: Homosexuals will burn in hell, we remember it saying. The cafe, it turned out, was owned by the Twelve Tribes, a fundamentalist group known for teaching that gay people deserve to die. After seeing the sign, my mom was deeply shaken. My other mom was outraged. “Who are they to say we can’t be here?” she remembers thinking. “It was very much a sense of invasion.” I remember feeling scared. We never went back to that cafe.

I now see that my family’s experience with the Twelve Tribes was part of a larger social problem that anti-discrimination laws have long sought to address: the problem of public discrimination perpetrated by private actors.

To be sure, posting a hateful sign and denying someone a service are not equivalent. Still, my family’s experience of discrimination helped me understand why anti-discrimination laws for businesses are so important. The discriminatory sign undermined our sense of dignity and safety, driving us from one of the few public eating places in town and limiting our ability to participate on equal terms in our community. Laws like the Colorado Anti-Discrimination Act are designed to mitigate these kinds of harms by promoting equality and dignity in the public marketplace. They reflect the idea that local businesses are part of a democratic public sphere, open to all, where people are entitled to equal access and protection against dignitary assaults.

Laws regulating discrimination in open markets are deeply rooted in our civil rights traditions, which have long coexisted with the free speech clause of the First Amendment. Public accommodations laws have been on the books since the 19th century; in the 20th century, they served as shields against racial segregation. And until today, the Supreme Court had consistently rejected attempts to undermine them. As recently as 2018, in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the court recognized the importance of ensuring that gay people are not subjected “to indignities when they seek goods and services in an open market.”

Notwithstanding the court’s opinion in 303 Creative, public accommodations laws also protect expression. Discrimination in public markets can chill speech by preventing members of the targeted groups from speaking out or speaking on equal terms with others. By promoting inclusion, anti-discrimination laws create conditions more friendly to minority representation and expression, and they do so without unduly restricting the speech of business owners, who retain the right to express their views in countless other settings. As anti-L.G.B.T.Q. legislation sweeps the country — including blatantly censorious “Don’t Say Gay” bills and others that restrict trans people’s access to bathrooms — robust anti-discrimination laws are urgently needed for the sake of equality and for the sake of expression.

Today’s decision should not dissuade communities from trying to protect queer families like mine, trans people and all those who face the risk of assault — dignitary or otherwise — because of their identities. Public accommodations laws will most likely face more speech-based challenges. But the exception set forth in 303 Creative does not yet swallow the rule, since it is limited to sufficiently “expressive” custom goods and services. In light of that limit, there is still value in enacting and enforcing state statutes that prohibit discrimination now, even if they are later dismantled or defanged by courts. In cases where the court’s ruling does prevent state intervention, private citizens can combat discrimination through protests and boycotts. We shouldn’t underestimate the symbolic power of contesting discrimination in public accommodations.

Although I hadn’t thought about the sign in that Twelve Tribes cafe for years, I recently looked up whether New York had a public accommodations law on the books at that time. It did. The law even covered sexual orientation, and it prohibited discriminatory signage. But in looking up the law, I wasn’t searching for a cause of action. I was looking for evidence that even back then, the broader community we lived in thought my family should have a place in public life. I was surprised by how much the answer mattered.

Lily Moore-Eissenberg is a student at Yale Law School. Previously, she studied philosophy at Oxford as a Rhodes Scholar and reported on civil rights issues as a freelance writer.

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