People For the American Way

Right-Wing Supreme Court Majority Weaponizes First Amendment to Grant License to Discriminate Against LGBTQ+ People and More

News and Analysis
Right-Wing Supreme Court Majority Weaponizes First Amendment to Grant License to Discriminate Against LGBTQ+ People and More

In a 6-3 decision on the last day of its 2022-23 Term, the far right Supreme Court majority continued its weaponization and misuse of the First Amendment to permit discrimination. Specifically, in an opinion by Justice Gorsuch, the majority ruled that businesses can deny web design services to LGBTQ+ couples’ weddings despite a state law prohibiting such discrimination in public accommodations, effectively granting a license to discriminate. That license, Justice Sotomayor pointed out in her dissent, could apply to permit discrimination against interracial couples and others as well. The case is 303 Creative LLC v Elenis. 


What is the Background of the Case?

 A one-person corporation in Colorado, 303 Creative LLC, wants to go into business marketing and designing websites for people who want to get married. Because of its owner’s strong religious beliefs against same-sex marriage, however, it wants to deny its services to people seeking to celebrate same-sex weddings and make that clear on its website. Colorado has a law prohibiting discrimination in public accommodations including business services based on LGBTQ+ status, among other things, and the law covers discrimination with respect to weddings of same-sex couples. The corporation therefore filed a lawsuit for a declaratory judgment that, on First Amendment grounds, the law does not forbid the company’s proposed actions.  

 The lawsuit was filed by the Alliance Defending Freedom, a right-wing legal group that has worked against LGBTQ+ rights. Recent news reports suggest that ADF may have filed papers in the district court falsely suggesting that the corporation’s owner received an inquiry about designing a website to celebrate a same-sex marriage. In any event, both the district court and the court of appeals declined to provide the judgment that the corporation sought, and the Supreme Court agreed to hear the case. 


What did the Court decide and why is it important?                                                                                                                   

In a 6-3 ruling written by Justice Gorsuch, the Court reversed the decision below and sent the case back for further proceedings. The right-wing majority consisted of all three Trump justices (Gorsuch, Kavanaugh and Barrett) plus Roberts, Thomas, and Alito.  They maintained that in essence, Colorado was violating the First Amendment by “forcing a website designer to create expressive designs speaking messages with which the designer disagrees.” Although public accommodations laws prohibiting discrimination are generally valid, the majority made clear,  such laws “sweep too broadly when deployed to compel speech” as in this case. 

 Justice Sotomayor strongly dissented, for herself and Justices Kagan and Jackson.  She pointed out that just five years ago, in the Masterpiece Cakeshop case, the Court had recognized that “religious and philosophical objections to gay marriage” do not allow businesses and others to “deny protected persons equal access to goods and services” under a public accommodations law like Colorado’s. Now, she went on, “for the first time in its history,” the Court was granting a business open to the public the “constitutional right to refuse to serve members of a protected class.” She went on to explain, under previous precedent, that the law “targets conduct, not speech,” and the “act of discrimination” as proposed here “has never constituted protected expression under the First Amendment.” 

 Sotomayor also pointed out that the majority’s ruling is “not limited to discrimination on the basis of sexual orientation or gender identity.” Under the majority’s rationale, she went on, a “website designer could equally refuse to create a wedding website for an interracial couple,” or a business owner could “refuse to sell a birth announcement to a disabled couple because she opposes their having a child.” The ruling clearly “threatens” to grant licenses to businesses to commit such discrimination as well.  

 The right-wing majority’s ruling in the 303 Creative case, like its decisions on affirmative action and student loans at the end of its current term, clearly harms the rights of millions of us around the country. We can help mitigate that damage by encouraging the appointment of as many fair-minded Biden judges as possible to our lower federal courts, which will interpret and apply these decisions. But make no mistake—the continuing legacy of lifetime Trump and other presidents’ far right justices will continue to harm all of our rights.