303 Creative: What happens when an arguably narrow SCOTUS decision meets 2023

Part II: While some legal scholars have spent the past two weeks explaining how narrow the First Amendment decision is, people who want to discriminate are ... discriminating.

[Editor’s Note: Part I of Law Dork’s coverage of 303 Creative can be found here.]

303 Creative v. Elenis — the case about the wedding website that wasn’t — was one of the key U.S. Supreme Court decisions of this term just concluded. Last week, I wrote about the preliminary matters underlying the court hearing and deciding the case.

This week, I’m going to focus on the effects of the decision on public accommodation laws and possible fallout from the decision.

There are two, starkly divergent ways of reading the 6-3 decision by Justice Neil Gorsuch.

The first reading is that this was a narrow decision, addressing a cabined area of commerce and potentially limited further in practice by the facts of Lorie Smith’s case and the unusual stipulations agreed to by Colorado in the case. The second reading is the message this ruling sends and the door this decision potentially opens, particularly given a Supreme Court majority that has repeatedly ignored precedent and privileged religious claims over others, to challenges on many fronts seeking ever-more-broad exceptions to nondiscrimination laws.

Law professor Dale Carpenter at The Volokh Conspiracy advanced one of the most complete, accessible pieces explaining (most of) this narrow reading. As Carpenter puts it:

I read 303 Creative to hold that a vendor cannot be compelled by the government:

(1) to create customized and expressive products (whether goods or services) that constitute the vendor's own expression (op. at 9, 16);

(2) where the vendor's objection is to the message contained in the product itself, not to the identity or status of the customer (op. at 18 n. 3, 20).

He explains what that could mean in detail. Check it out if you want, then come back here and read on. (Or, if you get the drift, read on now and check it out later if you want!)

Carpenter’s reading of the decision is still, as Justice Sonia Sotomayor wrote in dissent, a broader exception than the court had ever previously granted to a business seeking an exemption from state nondiscrimination laws. If he is right, though, the decision itself is more narrow than the greatest concerns raised by the case and the ruling could — theoretically — be quite limited in practice (particularly in light of Colorado’s stipulations).

Unfortunately, Carpenter’s idealized reading of 303 Creative is going to — and already has — slammed up against 2023.

One of the most direct examples of the broad consequences of the ruling is the ongoing story out of Traverse City, Michigan, where a hair salon owner has said that she won’t serve transgender and queer people. As the Detroit Free Press reported:

The owner wants to discriminate against transgender people. Plain and simple. And doubled down once called out on it.

This brings us to the first area of fallout I’d like to discuss: States with public accommodation nondiscrimination laws that include sexual orientation and gender identity.

“Well, that’s status-based and not message-based” the logic of Carpenter’s piece would respond, “so it’s not exempted by 303 Creative.”

Sure, and such discrimination is illegal under Michigan law.

Accordingly, someone rejected for service by the salon could file a complaint against the business with the Michigan Civil Rights Commission, and they would likely, ultimately, succeed.

But, they might not, for whatever reason. And, even if they did, the salon owner could appeal, taking the matter from the commission into the state courts. And so on, and so on.

While the Traverse City example sounds, perhaps, like an extreme example, it’s important to see how even this situation could cause problems and take significant time and money to resolve.

Now, though, imagine Alliance Defending Freedom — the far-right Christian legal advocacy group that represented Lorie Smith and 303 Creative — found a person like that salon owner in a federal court jurisdiction where they’re likely to draw the most conservative judge in the state and they file a lawsuit against that state’s Civil Rights Commission for violating that person’s First Amendment free speech rights.

And, to continue, let’s imagine ADF’s lawyers reached this person before they said that they wanted to discriminate, and helped the person to speak about the situation just a bit differently — so that all of their comments are focused on the hair stylist’s beliefs about proper gender presentation, and not, so they would tell us, about any person’s status.

Let’s also say it’s in Michigan. Regardless of the district court’s ruling, let’s say they appeal. They go to the U.S. Court of Appeals for the Sixth Circuit and get a panel like the Tennessee ban on gender-affirming medical care for minors got last weekend, and Chief Judge Jeffrey Sutton — or Judge Amul Thapar — writes a glowing endorsement of the broadest possible reading of Justice Neil Gorsuch’s opinion in 303 Creative.

Then, regardless of whether ADF’s stand-in wins their specific case, all of the Sixth Circuit is facing that broad interpretation of exemptions to public accommodation nondiscrimination laws.

That, of course, could then end up at the Supreme Court.

Beyond all of that, this Traverse City situation — or our ADF hypothetical — is happening is in a state that has clear public accommodation protections based on sexual orientation and gender identity.

That brings us to the next area of fallout: States without public accommodation nondiscrimination laws that include sexual orientation and gender identity.

Very little of the discussion of 303 Creative thus far has been about the fact that Lorie Smith’s case was out of Colorado, which, like Michigan, has explicit protections in law against public accommodations discrimination based on sexual orientation and gender identity.

As the Movement Advancement Project details, though, only 22 states, DC, and the U.S. Virgin Islands have state laws that explicitly ban discrimination in public accommodations based on sexual orientation and gender identity. Five other states have interpreted public accommodation sex discrimination bans to include sexual orientation and gender identity, for a total of 27 states. Additionally, Wisconsin law bans sexual orientation discrimination in public accommodations.

MAP’s map of public accommodations law protections

What that means is that, even before 303 Creative, there were more than 20 states that had no explicit public accommodation protections for LGBTQ people. [Update at 3:55 p.m.: As law professor Jim Oleske noted on Mastodon, within those states without such protections, there are local jurisdictions with their own nondiscrimination policies, some of which include sexual orientation and gender identity protections in public accommodations nondiscrimination requirements.]

If someone in Michigan can feel so empowered in the wake of the Supreme Court’s ruling to be so explicitly discriminatory in defiance of state law, imagine what is already happening — on a daily basis — to people living in those 22 states and four territories with no explicit protections against LGBTQ discrimination in public accommodations.

Finally: What about other types of discrimination?

This might be the most disturbing part of Gorsuch’s opinion for the court because he doesn’t engage with the question at all. Instead, he boils the entire question down to one sentence, and dismissively responds with just three words: “Pure fiction all.”

Of course, because Gorsuch’s dismissal doesn’t engage with the question, it also won’t stop litigants from raising the questions and it doesn’t stop judges from seeing how far five justices of this Supreme Court will let them go.

Think about some of the rulings we’ve seen over the past few years. The Supreme Court majority’s actions — its overturning or ignoring of precedent, its growing normalization of taking the facts as they wish them to be and not as they are, its unwillingness to set actual limits on its rulings — have encouraged the worst instincts from some of the worst lower-court judges.

If Gorsuch thought his three-word response would be sufficient to stop lower-court judges from creating mischief, he’s been asleep. If he just wanted to ignore the concerns, that might be worse.

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Where does all of that leave us?

There are a fair number of non-extremists defending 303 Creative as a narrow and necessary free speech ruling. I see how they can make that argument.

My problem with that, ultimately, is three-fold.

First, we don’t allow the beliefs of business owners to trump nondiscrimination laws. See Sotomayor, J., dissenting. To dramatically oversimplify things, those laws represent a compelling state interest in eradicating discrimination in the marketplace. Their general applicability is essential to meeting that interest, hence, it is the least restrictive means of advancing that interest. That’s strict scrutiny, so the First Amendment claim should fail and that should be the end of the story.

Second, it ignores the goals of the organization behind the case. Alliance Defending Freedom is not a free speech organization. In this sphere, specifically, they are an organization that wants to marginalize LGBTQ people. Moreover, we’ve seen what comes next. They are the organization that has followed up Dobbs by seeking to get rid of medication abortion across the nation — even in states where abortion remains legal and accessible. Sure, their clients are not them, and the case must be decided on its own terms (which, of course, is also in question here, stipulations notwithstanding). That does not, however, mean analysis of the case, decision, and effects must be considered the same isolated way.

Third, and just to repeat a point I’ve made throughout, this defense ultimately ignores 2023 — both in terms of the growing anti-LGBTQ sentiment in public and in government and in light of the federal judiciary right now. Yes, the Supreme Court might ultimately rein in the most extreme outlier decisions that follow 303 Creative, but, again, look at the mifepristone case. It’s still not resolved, despite the Supreme Court’s intervention while the appeal in the case proceeds. People in, say, New York, still remain unsettled as to what their rights will be when the case is ultimately resolved. This is a real, not hypothetical, cost.

Final words

To argue that a narrow reading of 303 Creative v. Elenis is the path forward is certainly a good argument, but it’s not a fact.

Those concerned about the implications of the ruling and the rippling consequences that could become a post-decision aftershock are speaking from a point of persuasion based on our recent experience. And advocates and others seeking to protect robust enforcement of nondiscrimination laws should respond accordingly.