Days after the Supreme Court handed down their decision in 303 Creative LLC v. Elenis and ruled in favor of a web designer who did not want to service same-sex couples because she says it infringes on her first amendment rights, a hairdresser in the small town of Traverse City, Michigan publicly posted about refusing service to clients who may have different pronouns than what they were assigned at birth.
“If a human identifies as anything other than a man/woman, please seek services at a local pet groomer,” Christine Geiger, the hair salon owner, said in a since-deleted Facebook post. “You are not welcome at this salon. Period.”
The Facebook page for the salon has also been deleted, but critics claim Geiger’s messaging is evidence of the troubling precedent set by 303 Creative.
“[This case is] a green light for people to engage in what was previously understood as discrimination,” said Katherine Franke, Professor of Law and Director of the Center for Gender & Sexuality Law at Columbia University. “People feel that they now are immune from any kind of consequences for engaging in that kind of violent bigoted speech.”
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The ruling comes during a moment rife with uncertainty for LGBTQ+ rights. A May Department of Homeland Security briefing revealed that threats of violence against the queer community have increased within the last year, and nearly 500 anti-LGBTQ bills targeting gender-affirming care and drag have been introduced this legislative session. While many have been faced with temporary injunctions or found unconstitutional, and experts say that 303 Creative does not allow for explicit discrimination, changing attitudes about the LGBTQ+ community over the past year have been troubling.
“It’s not reasonable to interpret 303 Creative to allow that salon to engage in discrimination,” said Sarah Warbelow, the Human Rights Campaign’s Legal Director, “but these are exactly our long founded concerns. Not only for the real discrimination that will be permissible as a result of 303 Creative, but that it will inspire, discriminatory behavior, and really disgusting public discourse about LGBTQ people.”
In throwing out decades of legal precedent that have upheld anti-discrimination policies, legal experts say the case could open the door to more worrisome implications for the future. “It doesn’t eliminate [LGBTQ protections],” Warbelow says, “but it certainly created a crack.”
What was 303 Creative about?
The case was brought forward by Lorie Smith, a web designer who sought a pre enforcement challenge (a legal action filed before a plaintiff engages in conduct that they believe may go against a specific law) saying she was deterred from expanding her graphic design business to offer wedding websites because Colorado’s anti-discrimination law would require her to service queer couples. Smith says she does not condone gay marriages due to Christian beliefs, and she believed the law infringed on her rights.
By a 6-to-3 vote, the Supreme Court agreed, though not based on religious freedom protections, but rather free speech. The majority opinion found that because Smith’s website included text that would be customized to tell her client’s love story, it fell under the creator’s expression and therefore under the definition of “pure speech.”
“In this case, Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance. The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands,” Justice Neil Gorsuch wrote.
What are the implications of this case?
Legal experts like Rutgers law professor Katie Eyer says that the case was “decided on relatively narrow grounds” and “has emboldened much broader claims in the lower courts and among others who might wish to discriminate.”
In other words, the Court found that Smith had a broad “free speech” right that did not require her to follow Colorado anti-discrimination law, “but they also provided no limiting provisions on that right,” Franke says. That means that lower courts do not have a precise definition of “expressive activity” that would help decipher the types of businesses that are exempt from adhering to anti-discrimination standards. Experts expect increased litigation seeking to expand the category of expressive speech from websites to other creative activities, like baking a cake, though the exact way this plays out is yet to be seen.
“There’s also nothing in the opinion, that limits this right only to people who object to same sex marriage,” Franke adds. To be clear, the precedent set by 303 Creative would not allow the Michigan hairdresser to deny service to someone solely based on their gender or sexuality as cutting hair does not constitute speech.
But experts do question whether the ruling would expand to allow a web designer like Smith to deny servicing an interfaith couple, or one of a different religion.
What is even more troubling, Eyer adds, is that much of the clarification surrounding what qualifies as speech exempt from anti-discrimination laws will be decided in the lower courts. “This trajectory has really emboldened would-be discriminators to make even broader arguments about where they are entitled to discriminate,” she says. But that won’t change the lived realities of Americans who belong to protected groups. “Fundamentally, what any group that’s protected by anti-discrimination law wants, even if they win a lawsuit, is not to experience discrimination.”
Attorneys are already looking to decipher whether 303 Creative allows other businesses or entities to refuse services to people based on the decision.
The Becket Fund for Religious Liberty, for instance, is challenging two court cases: Billard v. Diocese of Charlotte—in which a gay substitute teacher who was fired after revealing his sexuality online successfully sued the school for discrimination—and the similar Fitzgerald v. Roncalli High School and Archdiocese of Indianapolis, per the Washington Post.
Attorneys representing the dioceses argue that hiring decisions should qualify as protected free speech. “If a for-profit business gets constitutional protection when deciding what services to sell [to] the general public, then, of course, a non-profit religious school gets constitutional protection when deciding who is religiously qualified to teach and embody the faith at a religious school,” Luke Goodrich, Vice President and Senior Counsel at The Becket Fund, told TIME in an email statement.
Experts TIME spoke to say that these cases do not have strong legal backing because the Court explicitly said the ruling did not apply to employment discrimination, but other cases like Braidwood Management Inc. v. Becerra could set a new precedent. In June, the Fifth Circuit Court of Appeals ruled in favor of Braidwood Management Inc, a Houston company that said that federal anti-discrimination laws do not apply to them because their religion dictates that people should be cisgender and heterosexual. Franke says that this case relates more to religious freedom than free speech, but the potential implications of this ruling could be troubling. That case may reach the Supreme Court in 2024, according to a case briefing from Columbia Law School.
The Texas Supreme Court also agreed to hear oral arguments related to a lawsuit by a Texas judge who first made headlines in 2019 when she filed a suit claiming that giving out marriage licenses to queer couples infringed on her religious freedom. Attorneys argue that 303 Creative is now applicable in the suit.
Other cases like Klein v. Oregon Bureau of Labor and Industries—where a bakery refused to sell a wedding cake to a same-sex couple—will also be remanded for further consideration given the recent Supreme Court ruling to see if the creation of wedding cakes constitutes commercial speech in the same way Smith’s website does.
Those decisions could continue to pushback against previous legal understandings of equal protections.
“You would think that this would be a time when we express a strong American value of either tolerance or inclusion for all people in our society…but they’re doing just the opposite,” Franke says. “This is a brand new way of understanding the Constitution. Some rights are first tier” religious liberty, free speech, gun rights. And other rights, yes, you have them, but they’re second tier rights: LGBT equality, sex based equality, reproductive rights, and public health and safety. And when those rights come into conflict with first tier rights, they have to yield.”
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