The U.S. Supreme Court recently ruled that businesses can now legally refuse service to LGBT people in specific circumstances. Its decision in 303 Creative v. Elenis allowed a graphic designer to rely on her First Amendment right to free speech to refuse to make wedding websites for same-sex couples. This opinion single-handedly upended non-discrimination laws in the marketplace, but its effect is even more far-reaching: as early as the same day as the ruling, it was used to argue for the right to terminate LGBT employees.
LGBT People Have Been Under Attack
It was only 20 years ago that consensual gay sex was decriminalized in the United States. Since then, marriage was opened to same-sex couples (2015), and non-discrimination protections in employment were applied to many LGBT people across the country (2020).
Oh, how things have changed. More than 400 anti-LGBT bills have been proposed in state legislatures in just the past year. Hearkening back to the most virulent homophobia of the 70s, LGBT people are now casually being referred to as “child groomers.” We are also seeing LGBT-themed books banned from libraries and laws “protecting the children” from drag shows and drag story hours.
And all of this performative outrage and virtue signaling comes on top of the usual prejudice that affects LGBT people’s daily lives, such as microaggressions in the workplace, health disparities, discrimination in healthcare, and the wage gap.
But that’s not all. Now the protections provided by public accommodations laws are being peeled away.
The Court’s Decision on Public Accommodations Laws
The Civil Rights Act of 1964 banned discrimination in various aspects of American life. Title VII of the act, for example, bars discrimination in employment on the basis of race, religion, national origin, sex, and other traits. Title II outlaws discrimination in “public accommodations,” which refers to businesses that are open to the public at large, such as restaurants, bars, and flower shops. Its protections, however, are limited to only four categories: race, color, national origin, and religion. Many states have passed more expansive laws that also include sex, sexual orientation, and other categories, using the federal act as a model, but 22 states still lack any protections for sexual orientation or gender identity in public accommodations.
The “public accommodations” portion of such laws means that even though business owners generally have latitude to determine which work they take on, and with whom, they cannot turn away customers or clients simply because of their “protected status.” So, a restaurant cannot refuse to serve a Muslim diner, a gym cannot turn away a potential black patron, and a bakery could not deny service to a gay couple. Until now, that is.
The Majority Writes for Majority Rights
Lorie Smith, the plaintiff of 303 Creative, lives in Colorado, a state that has a public accommodations law that bars businesses from refusing service to the public based on sexual orientation. Ms. Smith is a graphic designer who decided she wanted to expand her services to include creating wedding websites, but she does not support same-sex marriage and doesn’t want to create any websites for same-sex couples. She sued the state of Colorado to be relieved of the requirement to serve the entire public. Her case eventually landed at the Supreme Court.
Justice Gorsuch penned the majority opinion. His central argument is that there is a difference between a person’s protected status (gay, for example) and creating a product that expresses a message (a website that displays or furthers in some way a gay wedding). Although Ms. Smith’s opposition to same-sex marriage is based at least in part in religion, the lawsuit focused on the First Amendment’s protection of free speech, not religious liberty.
Ms. Smith’s websites were planned to be custom-made for each customer and would marshal her creative energies. According to the majority, this meant she would be engaged in creating speech, speech with which she vehemently disagreed. Although Colorado’s law was intended to protect marginalized groups from being denied service, the Court’s majority found that Colorado was practically “coercing” Ms. Smith to create speech with which she disagrees and to carry the state’s message of the equality of same-sex marriages. This supposed infringement on free speech was less acceptable to the majority than a gay couple being denied service.
A Dissent to Remember
Justice Sotomayor’s dissent is scathing and surgical in its response to the majority’s arguments. She takes the reader on a tour through the history of public accommodations law to bolster her main argument: Colorado’s law regulates the conduct of businesses, not their speech. Moreover, governmental regulations that place “incidental burdens” on speech have traditionally been allowed under the First Amendment.
Justice Sotomayor points out that denying a gay couple a wedding website because of its message is practically indistinguishable from denying service because the couple is gay. What would offering a wedding website service to a gay couple that did not include creating a website for a same-sex wedding look like? It’s not very common that gay couples seek to purchase wedding websites for heterosexual couples. The dissenting justices view the majority’s decision as a novel interpretation of the law.
Justice Sotomayor draws our attention to an additional worrisome issue. Ms. Smith asked to be able to display an announcement on her website clarifying her services, which the Court permitted. She can now warn visitors to her site that “no [wedding websites] will be sold if they will be used for gay marriages.” Businesses can both deny certain patrons and publicly announce their policy of doing so.
“Marked for Second-Class Status”
Justice Sotomayor alerted readers to the far-reaching consequences of the majority’s ruling. She noted that it would “mark gays and lesbians for second-class status,” and even implied itcould be utilized in the employment context. Justice Gorsuch dismissed such concern as “pure fiction.”
Yet it wasn’t long before some business owners took note of the ruling. A hair stylist in Michigan posted her own transphobic notice online: “If a human identifies as anything other than a man/woman please seek services at a local pet groomer. You are not welcome at this salon. Period.” She clarified in later remarks that she would not “cater to requests outside of what I perceive as normal” and stated, “This is a free country and I am not a slave to any narrative.”
Whether styling someone’s hair could constitute “expressive activity” of the sort that a court could see as “free speech” is unclear. Ostensibly, each client is unique as is each haircut, and a stylist certainly uses creative, sometimes perhaps even artistic, skills in shaping and coloring each head. Is this stylist able to refuse service to people with untraditional gender identities? At least for now, she feels emboldened enough by the Court’s decision to declare her newfound right publicly. Such examples are likely to become more widespread.
Does the Ruling Permit Terminating LGBT Employees?
Even before the Michigander hair stylist declared her right to turn away trans customers, a conversative legal team leveraged 303 Creative to support its argument that Catholic schools have a right to terminate employees for being LGBT. If a wedding website can constitute “free speech” and “expressive activity,” they reasoned, then a religious school’s educational curriculum and the delivery of that education has even more of a claim to constituting “free speech.” In their argument, all teachers at private schools (at least at religious schools) are engaged in “expressive activity” in the service of their employer. If such teachers “make” or “force” the employer to appear as though it is condoning speech it does not support—such as by tolerating an openly gay employee—then an employer is justified in terminating that employee to control its own message, i.e., to preserve its constitutional free speech rights.
Religious employers already have the ever-broadening protections of the “ministerial exception,” a court-invented doctrine that grants them impunity from anti-discrimination laws in actions that concern employees who have any religious functions. And despite common misconceptions, many LGBT workers at secular employers remain unprotected by anti-discrimination laws in the workplace. 303 Creative appears set to give religious employers another layer of protections from legal liability for what would otherwise constitute workplace misconduct.
Race, Sex, and Other Traits Will Be Next
Although Ms. Smith expressed a sincerely held religious belief in the normativity of heterosexual marriage, the Court’s opinion is not based in an argument for religious liberty. Rather, it focuses on conscience. The majority leans on the fact that Ms. Smith simply did not believe or “endorse” a potential customer’s viewpoint. Her First Amendment right to free speech means that she cannot be asked to “express views with which she disagrees.” Justice Gorsuch at one point even rhetorically asks, “Can a State force someone…to abandon her conscience?”
Now that Constitutional free speech rights trump civil rights laws, everything appears to be up for grabs. If we follow the majority’s line of reasoning, how could we possibly suffer a state law (or federal, for that matter) “coercing” a shop owner to serve black customers if that person has a sincerely held belief in the racial inferiority of the customers? How could a car mechanic be “forced” to provide service to a woman if he has a deep-seated belief that women belong in the domestic sphere, not busying themselves with automobiles? By allowing a free speech line of attack on civil rights laws, and by not clarifying what exactly constitutes “expressive activity,” it appears the Court has opened a Pandora’s box to all manner of status-based discrimination conveniently cloaked as a matter of “conscience” and “free expression.” And if this decision is helping to justify terminating LGBT employees, it will also support firing black, female, Muslim, and others kinds of workers.
What Should Businesses and Employers Do?
Justice Sotomayor writes the following in her dissent: “I fear that the symbolic damage of the Court’s opinion is done. But that does not mean that we are powerless in the face of the decision. The meaning of our Constitution is found not in any law volume, but in the spirit of the people who live under it. Every business owner in America has a choice whether to live out the values in the Constitution.”
Justice Sotomayor makes an oblique appeal to businesses saying, basically, “just because you can doesn’t mean you should.” She understands that businesses are able to hold the line against giving in to ignorance and exclusion.
Most businesses will likely recognize that there is a baseline moral concern not to discriminate. That means most businesses likely won’t do anything differently. That said, the Court’s ruling is a good occasion for businesses to consider affirmative actions that it can take:
- Get clear on you core values. Ask yourself what your company’s core values are, how you can get better aligned with them, and remain in sync with them. If you don’t have explicit core values, now is as good a time as any to start drafting some.
- Post a notice. Businesses may now post a notice of exclusion like Ms. Smith’s. But nothing stops a business from posting a notice of inclusion. Something as simple as, “All are welcome here” or “We love our LGBT customers” could go a long way with your customer base. If you are in a cheekier mood, consider this: “The Court says we don’t have to serve you, but our values tell us we should. LGBT customers are welcome here.”
- Review the business case for inclusion. Inclusion is not only good morals, it’s smart business. The more people you are willing to work with means the broader your customer base is and the deeper your talent pool for workers. Review how remaining an accepting enterprise has helped your business—and reiterate this to key stakeholders as necessary.
- Support your employees. No matter your line of work, LGBT employees want to know they are respected and protected. Consider implementing policies that truly matter to your diverse workforce. And keep in mind that updating any policies and employment handbooks, and training on those policies, is good practice and sends the right message to your employees.
What Do Consumers and Employees Need to Know?
If you are an LGBT consumer, what you are able to do will depend on the circumstances in which you find yourself. This is also true for LGBT employees.
- Be prepared to be turned away. Unfortunately, LGBT patrons will now face the reality that they may be turned away from a business, and that such exclusion is now perfectly legal. A consumer should question whether the good or service involves the use of a seller’s creative powers to craft a message with which they disagree, or if it is more about turning you away because of who you are. At times, these things will be very difficult to distinguish. Pay attention to any written notices and the particular language used in whatever is verbally told to you.
- If it’s unclear, seek legal advice. If you feel you have been discriminated against in a public accommodation because of your status as someone who is LGBT, consult the queer legal advocacy group Lamba Legal, a local legal aid clinic, or an attorney.
- Question the values of the place you work for. If you are an LGBT employee, you might want to reflect on whether your work could reasonably qualify as “expressive activity” on behalf of your employer. Analyze the values of your employer and how likely it is that your sexual orientation or gender identity could become a point of contention. Does your employer publish and enforce anti-discrimination policies, attempt to follow a set of core values, engage in training its workforce? How likely is it that this place would support you? If you determine it’s not a good fit, move on.
As Justice Sotomayor reminds us, when the government fails to protect vulnerable communities, it is up to the rest of us to step up. Business owners and employers in particular can wield power by establishing values and setting the tone in their places of business. They have the ability to choose and model inclusion or exclusion. Unfortunately, although LGBT consumers are now able to get married, we are left to wonder where we can get a wedding website…or a wedding cake…or a caterer…or maybe even a photographer, or….
This post also appears on the author's Medium profile.