Civil and Human Rights

RELEASE: Creation of Exception to Public Accommodation Law Reflects Composition of the Court, not Text and History of the Constitution

WASHINGTON, DC – Following the Supreme Court’s announcement of its decision in 303 Creative, LLC v. Elenis, Constitutional Accountability Center Vice President Praveen Fernandes issued the following reaction:

Today, the Court’s conservative majority invented an exception to the public accommodations laws that states across this nation have used to prevent discrimination in the delivery of goods and services.  Significantly, as our brief on behalf of First Amendment scholars explained, such laws have existed for centuries, and the Supreme Court has consistently held that such laws pose no First Amendment problem. That is why Justice Sotomayor (joined by Justices Kagan and Jackson) observed in her dissent that, “[t]oday, 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.”

If observers struggle to reconcile today’s decision with the Court’s assurance a mere five years ago in Masterpiece Cakeshop that religious and moral objections to same-sex marriage would not permit “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,” it is because these positions are irreconcilable.  What has changed is not the text and history of the Constitution, but the composition of the Court.



Case page in 303 Creative, LLC v. Elenis:


Constitutional Accountability Center is a nonpartisan think tank and public interest law firm dedicated to fulfilling the progressive promise of the Constitution’s text, history, and values. Visit CAC’s website at


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