LGBT+ Case Watch: LGBT+ Rights Collide With The First Amendment
10 Dec 2022
A case that could have a big impact on LGBT+ rights and nondiscrimination laws has reached the Supreme Court. The question at hand is whether a nondiscrimination law that protects LGBT+ people is unconstitutional if the service being provided counts speech.
Lorie Smith, who owns 303 Creative which is a graphic design company sued the state of Colorado over their nondiscrimination law. Smith wanted to expand her business to include website design for weddings but worried that she would have to make these websites for same-sex couples under Colorado law. She argued that the law intruded on her first amendment right to free speech. When her case, called 303 Creative LLC v. Elenis made its way to the 10th Circuit Court of Appeals her argument was rejected, but now the Supreme Court has taken up the case.
In the recent oral argument, the court's conservative justices seemed to support 303 Creative's argument. Because the Supreme Court has 6 conservative justices and only 3 liberal ones, 303 Creative seems poised to win this case.
If the court rules in favor of 303 Creative, nondiscrimination laws will be weakened. New carveouts would be added to these laws which would allow people to refuse service to LGBT+ people as long as the service is considered speech, and how far this would go is unclear. These carveouts might also allow the same to be done to other minority groups. A designer might be able to refuse service to an interracial couple.
Luckily, nondiscrimination laws would probably be intact for services that are not considered speech.
On the other side, many conservative activists have argued that the court ruling in support of 303 Creative would be a win for free speech and religious freedom.
There is also a small chance that the court only rules in a very narrow way that does not upend nondiscrimination laws. This would be like a similar lawsuit several years back involving a baker not wanting to back a cake for a same-sex couple where the Supreme Court only gave a very narrow ruling.
So what are the arguments being made by both sides? 303 Creative argues that Colorado's nondiscrimination stops her from expressing her beliefs about marriage and would require her to make art inconstant with her beliefs.
On the other hand, Colorado makes the argument that its law only regulates sales and not what is being sold. They also contend that they have a compelling interest in having the law, which is stopping discrimination.
Many groups have filed briefings in this case including several LGBT+ and civil rights groups who support Colorado's arguments. Some of these groups include the Human Rights Campaign, Lambda Legal and the ACLU. Other groups like the Family Research Council opposed Colorado.
This case is bound to have a large effect on LGBT+ rights, and the ruling is expected in 2023.
https://amylhowe.com/2022/12/02/colorado-web-designers-first-amendment-challenge-will-test-the-scope-of-state-anti-discrimination-laws/
https://www.scotusblog.com/case-files/cases/303-creative-llc-v-elenis/
https://www.supremecourt.gov/DocketPDF/21/21-476/233350/20220812133015020_21-476%20Brief%20for%20Respondents%20Final.pdf
https://www.supremecourt.gov/DocketPDF/21/21-476/226347/20220526141015058_21-476%20Brief%20for%20Petitioner.pdf
https://www.supremecourt.gov/DocketPDF/21/21-476/234061/20220819145906224_21-476%20Brief.pdf
https://www.supremecourt.gov/DocketPDF/21/21-476/233992/20220819114720388_21-476%20303%20Creative%20v%20Elenis%20et%20al%20Amicus%20Brief.pdf
https://www.supremecourt.gov/DocketPDF/21/21-476/226880/20220602102911906_FRC%20Final%20Draft.pdf
https://www.politico.com/news/2022/12/05/scotus-lgbtq-gay-rights-colorado-first-amendment-00072162