The U.S. Supreme Court’s conservative majority seemed to signal Dec. 5 that it is prepared to allow certain business owners to violate state laws prohibiting discrimination based on sexual orientation in public accommodations.
The hints came pouring out of oral arguments in 303 Creative v. Colorado, a case staged by the ardently anti-LGBT legal group Alliance Defending Freedom. The Alliance filed the lawsuit for a web designer in Colorado who wants to sell custom-written wedding websites to heterosexual couples –but not same-sex couples. And the Alliance argued that the web designer’s work amounts to an “expression” and that the public accommodations law is violating her First Amendment right to freedom of expression by requiring she serve same-sex couples. Colorado said the discrimination at issue is the web designer’s discriminatory treatment of a group of people protected by Colorado law.
Justice Neil Gorsuch stated that “what would be impermissible is discrimination on the basis of status, but what would be permissible is refusing service because of a disagreement about views.” He offered the notion that the web designer was not discriminating against same-sex couples. His evidence? The web designer had LGBT customers for other products and said she would sell a same-sex wedding website to a heterosexual couple.
Because public accommodations laws typically prohibit discrimination based on race, religion, national origin, sex, disability, and other categories, Justice Sonia Sotomayor warned during oral argument, “This would be the first time in court’s history that it would say that …a commercial business open to the public, serving the public, that it could refuse to serve a customer based on race, sex, religion, or sexual orientation….” While it seems unlikely all six conservatives will vote to gut public accommodations laws so dramatically. But there was little hope in the oral argument that the court might uphold protections for same-sex couples seeking wedding websites, cakes, and other services.
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