The Supreme Court’s ruling Friday in favor of a Christian website designer who doesn’t want to make same-sex wedding websites has raised a long list of legal questions. Among them: Are businesses now allowed to refuse to serve same-sex couples or LGBTQ people, in general?
Legal experts have mixed opinions, but most say the answer, at least for most companies, is no, at least for now.
Judge Neil Gorsuch, who wrote the majority opinion, repeatedly noted that the case, 303 Creative LLC v. Elenis, focused on a very specific type of speech. The website designer’s business provided «expressive» individualized services and involved «pure speech», that is, words written literally. However, many companies provide expressive services, legal experts said.
And while Friday’s decision was limited, some experts said it could be expanded over the next few years to slowly remove anti-discrimination laws that prevent companies from discriminating against people based on race, religion, sexual orientation, gender identity. , age and other protected classes. .
«A hairdresser is expressive, an architect provides an expressive service, a college application essay help desk is expressive, a photography studio provides expressive services,» said David Cole, legal director of the American Civil Liberties Union, who argued a case before the Supreme Court. Court involving a Christian baker in Colorado who refused to bake a wedding cake for a same-sex couple.
“Does this mean that a corporate photography studio might refuse to take portraits of women because of the belief that women shouldn’t work outside the home? Most, Cole said, «don’t address that central question, which is, what is the limit of your decision?»
Christian website designer Lorie Smith sued the state of Colorado in 2016, arguing that its anti-discrimination law, which prohibits discrimination in public places based on race, creed, disability, sexual orientation and other protected classes, violates your right to free speech under the First Amendment to the Constitution. Smith argued that she should be able to refuse to provide her creative services for same-sex weddings, which go against her religious beliefs. She never faced penalties for turning down a same-sex partner and sued on hypothetical grounds.
In its 6-3 ruling on Friday, the court ruled in his favor.
Mary Bonauto, who argued on behalf of same-sex couples in Obergefell v. Hodges, the Supreme Court case that gave same-sex couples the right to marry, called the court’s ruling «a mixed bag.»
Bonauto, who now serves as the director of civil rights projects at GLBTQ Legal Advocates & Defenders, or GLAD, said she interpreted the court’s ruling to protect only companies that offer services as unique and specific as Smith’s.
“The vast majority of companies do nothing like this, nothing like research and unique customization per person, per couple and the creation of unique artwork, designs and text for each one. The fact that all of this was in writing influenced the court a lot,” Bonauto added, referring to Smith’s website designs. “However, I want to make it clear that this opens the door for companies that want to claim that they provide personalized services and therefore use that claim to discriminate against people they would prefer to exclude.”
Bonauto acknowledged that the way the public might interpret «expressive» services could differ from the court’s interpretation in its ruling on Friday.
“On one hand, I think a lot of people put a lot of heart into their work and feel that it expresses it. On the other hand, the law is much more limited about what counts as speech,” she said. «And the fact that you create original texts yourself out of your own head, your own mind, your own creativity, and you write it for someone else, and it’s very personalized to the individual, that’s what the court says is right.» margin. of the constituent expression line.”
Anthony Michael Kreis, an assistant professor of law at Georgia State University, said that «90%, 95% of the kind of ordinary public accommodation, the business transactions that people have, will remain intact.» He used as examples sandwich shops, mechanics and hotels, where he said «there is no expressive content».
Kreis added, however, that certain creative businesses fall into a «danger zone.» These businesses include florists, cake decorators, and DJs, because they create expressive, personalized content for customers, though they don’t use speech in the same way that Smith does.
Erin Hawley, an attorney with Alliance Defending Freedom, the conservative Christian legal group that represents Smith, agreed with other legal experts that the court’s ruling would protect companies only in cases where «speech is being created.» .
“If you’re talking about so-called ready-to-wear products, if you have a pre-made jersey, then anti-discrimination laws apply as they normally do, and a store owner has to sell that jersey to anyone,” Hawley said. “On the other hand, if a T-shirt owner or a store owner is creating a message, that’s where the First Amendment comes in and says that the government can’t force someone to say a specific message from the speech they’re making. would not you agree».
Katherine Franke, director of Columbia Law School’s Center for Gender and Sexuality Law, disagrees, saying the decision could be used by a variety of companies that don’t want to serve certain people.
“There is a lot of art that goes into making a good sandwich,” Franke said. “You walk into those delis, and they’ve named them after funny things and they put a little creativity into it and that’s their signature sandwich. Is that creative activity the one that is protected by the First Amendment? Well, something like after 303 Creative.»
He added that the court’s «sweeping» decision uses the First Amendment to «overturn what is a democratically determined set of rights for LGBT people, but also for a larger class.»
“We have never seen anything like this before, where free speech rights or beliefs expressed through some creative form or expression in opposition to equality basically destroys equality rights that we have enacted through a proper democratic process.” said Franke.
Smith won his case by claiming that Colorado’s nondiscrimination law would violate his freedom of speech, but the First Amendment also includes freedom of association, which means the right to freely interact or associate with groups.
Georgetown University law professor Paul Smith, who argued the landmark Supreme Court case Lawrence v. Texas, which declared sodomy laws unconstitutional in 2003, predicted that freedom of association claims is where future lawsuits on this issue will emerge.
“What you’re going to start to see eventually is people saying, ‘I have my little inn in this little town somewhere, and I don’t want to have same-sex couples sleeping in one of my rooms. I don’t want to be associated with that behaviour,’” Professor Smith said. “Freedom of association is a separate First Amendment right that they could try to use to expand this bridgehead that they have established in the business world of using First Amendment arguments to establish the right to discriminate.”
He said the court’s decision raises the question not only of which companies can turn away services, but also to whom: can they turn away interracial couples, for example?
“The court is just embarking on what may be a multi-year process to try to figure out how far this will go and how to limit it,” he said.