News Release: THLA Statement on the U.S. Supreme Court’s Decision in 303 Creative LLC v. Elenis
Statement on the U.S. Supreme Court’s Decision in 303 Creative LLC v. Elenis
For immediate release July 1, 2023
SAN DIEGO – The Tom Homann LGBTQ+ Law Association (THLA) expresses deep disappointment in the Supreme Court’s decision yesterday in 303 Creative LLC v. Elenis. In a 6-3 decision, the Court held that a website designer, whose services may eventually include creating wedding websites, may deny service to same-sex couples who seek to create websites for their weddings. Notably, but unsurprisingly, no same-sex couple had asked for this service from this website designer.
Using the premise of free speech, the Court’s decision limits the rights of LGBTQ+ people under the specific facts in the case. The majority opinion held that, because the business offers services that are customized and expressive, the Free Speech Clause of the First Amendment shields it from a generally applicable law that prohibits discrimination in the sale of publicly available goods and services.
However, this profoundly misguided decision opens the door, even narrowly, to using speech to attack substantive rights. As the dissent authored by Justice Sonia Sotomayor observes, “Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class. … The law in question targets conduct, not speech, for regulation, and the act of discrimination has never constituted protected expression under the First Amendment. Our Constitution contains no right to refuse service to a disfavored group.”
“We agree with Justice Sotomayor that the majority ruling is ‘profoundly wrong,’” THLA Co-President Ted Holmquist said. “While the website designer purportedly could provide services that involve creative content, she is not being asked or required to convey a message that goes against her beliefs. Constructing a webpage for a happy couple to post their pictures and write about their love story is not the same as requiring the website designer to herself write text or create imagery with which she disagrees.”
The Court’s decision also ignores Justice Kennedy’s opinion five years ago in Masterpiece Cakeshop v. Colorado Civil Rights Commission, where he noted, “Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights…it is a general rule that such objections [to same-sex marriage] do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”
Sadly, the Court’s decision in 303 Creative allows a narrow license to discriminate against LGBTQ+ people. While this exception should not apply beyond the limited businesses creating expressive content, THLA strongly opposes this flawed decision. It also concerns us how this Court may apply the same rationale to other substantive rights and to other protected groups.
In addition, THLA expresses disappointment in the tone of the Court’s majority opinion, which all but mocks the dissent. In a time of historically low public confidence in the Supreme Court, this type of rhetoric only causes confidence to sink even lower.
In August 2022, THLA joined an amicus brief filed in the Supreme Court in the 303 Creative case. That brief, filed by the National Women’s Law Center on behalf of 35 organizations committed to civil rights for women and LGBTQ+ people, had argued, among other things, that the First Amendment does not exempt businesses from compliance with public accommodation laws and highlighted the harms that would be caused if the Court allowed such an exemption.
Ultimately, this case once again demonstrates that the work for full LGBTQ+ equality is far from over. THLA will continue to advocate for the expansion and protection of LGBTQ+ rights in San Diego, in California, and across the nation. One decision will not alter our resolve to stand up and speak out against bigotry toward the LGBTQ+ community, even when it is hidden under the false pretenses of free speech.
About THLA: The Tom Homann LGBTQ+ Law Association is dedicated to the advancement of lesbian, gay, bisexual, transgender, and queer issues throughout California and the nation, as well as the protection of our communities. We are the place for San Diego’s LGBTQ+ and ally legal professionals to network, build friendships, and develop their careers. THLA members are also committed to establishing and maintaining personal connections with the local law student community. Through our successful mentor program, we provide encouragement, guidance, insight, and friendship to the next generation of lawyers and legal professionals.