Civil and Human Rights

RELEASE: As Justices’ Questioning Showed, The License to Discriminate That 303 Creative Wants Would Be Both Novel and Dangerous

WASHINGTON, DC – Following oral argument at the Supreme Court this morning in 303 Creative, LLC v. Elenis, a case in which the Supreme Court is considering whether a state public accommodations law, which requires businesses to offer the same services to same-sex couples that it offers to different-sex couples, violates the First Amendment, Constitutional Accountability Center Director of the Human Rights, Civil Rights, and Citizenship Program David Gans issued the following reaction:

In this morning’s argument, the justices offered a dizzying array of hypotheticals, probing the question of whether wedding websites represented a form of protected expression sheltered by the First Amendment against state infringement.  But even if that is true, the First Amendment does not give a commercial business the right to discriminate against its customers based on who they are—precisely the kind of exclusion the plaintiffs in this case ask the Court to sanction in the name of free speech.  Public accommodations laws—which have a long lineage in our nation’s history and traditions—regulate what business must do, not what they say.  For over a century, these laws have served to help realize our constitutional promise of equality for all persons.

Significantly, the Supreme Court has never held that a commercial business has a license to discriminate against customers based on their status.  As Justice Sonia Sotomayor observed during today’s oral argument, if the Court accepted 303 Creative’s far-reaching argument, “this would be the first time in the Court’s history” that a commercial business serving the general public had a right to turn away persons “based on race, sex, religion, or sexual orientation.”  As the questions posed by Justice Elena Kagan and Justice Ketanji Brown Jackson showed, the license to discriminate that 303 Creative is seeking would be far-reaching and dangerous.  It would gut civil rights statutes far beyond the context of wedding websites for same-sex couples, and could apply equally to refusals to serve interracial, interfaith, or disabled couples seeking to enjoy their fundamental right to marry.  In short, it would weaponize the First Amendment in service of denying equal citizenship to LGBTQ and other long-marginalized persons.  The First Amendment does not require that result.

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Resources:

Case page in 303 Creative LLC v. Elenis: https://www.theusconstitution.org/litigation/303-creative-llc-v-elenis/

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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 www.theusconstitution.org.

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