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SCOTUS: Opening the Door for Discrimination

Updated: Aug 8, 2023



Co-Authored

Marilyn Nagel | Co-Founder & Chief Advocacy Officer, RISEQUITY

Mikayla Apodaca | DE&I Intern, H&F


On June 30th, 2023, the Supreme Court made a landmark decision in the case of 303 Creative LLC v Elenis. The Court ruled in favor of a Christian web designer in Colorado, Lorie Smith, who refused to create websites celebrating same-sex weddings due to religious objections. In a 6-3 opinion delivered by Justice Neil Gorsuch, the conservative majority primarily relied on the First Amendment's free speech protections to allow Smith to refuse her services to same-sex clients.


This ruling will have significant implications for various minority groups beyond the LGBTQ+ community. It sets a precedent that creates a major exception in public accommodation laws.


The ruling states businesses providing "expressive" services or goods have the right to selectively choose their clientele. However, the term "expressive" is broad and lacks a clear definition, leading to potential confusion about which businesses fall under this description. According to Katherine Franke, a professor at Columbia Law School, this ruling may give any business owner a "green light" to deny service based on a person's identity, including being gay, lesbian, Jewish, Black, or any other category the business owner objects to.


Further confusion arises because this ruling contradicts local public accommodation laws in 22 states, the U.S. Virgin Islands, and Washington DC which prohibit discrimination based on gender identity or sexual orientation. Colorado state law, for instance, already prohibits discrimination based on sexual orientation and gender identity. Justice Gorsuch wrote in the opinion, "When a state public accommodations law and the Constitution collide, there can be no question which must prevail." This ruling will open the door for challenges to many public accommodation and discrimination laws based on personal beliefs in the coming years.

"The boundaries of who can refuse services and who can be refused are now more uncertain than ever."

The boundaries of who can refuse services and who can be refused are now more uncertain than ever. Justice Sonia Sotomayor stated in her dissent this is the first time the Supreme Court has granted a business open to the public a constitutional right to refuse service to a protected class. She argues that this ruling "threatens to balkanize the market and to allow the exclusion of other groups from many services."


This ruling causes significant concern for all of us. And it raises questions about how businesses inform and support their employees in different states with varying laws. For example, there will be states where businesses leverage this new ruling and now are asserting their right to refuse service to some individuals. If your company plans an offsite or team meeting in one of these states, you must ensure the hotel, restaurant, local services, and venues you use will welcome all your employees. Be explicit in vendor contracts to guarantee your employees are treated equally and respectfully.


With this ruling, it is even more important to communicate the company's culture that embraces diversity, equity, inclusion, and belonging (DEIB), creating an environment where everyone has the opportunity to realize their full potential.


In addition, even though many companies may not fall within the narrow exception of providing "expressive services," it is crucial to make it known on public interfaces, like your website, your company does not discriminate or refuse service based on sexual orientation, gender identity, race, religion or disability status. Inclusion is a differentiator.

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