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The Clash Between Free Speech and Gay Rights: The Implications of 303 Creative LLC v. Elenis

The Clash Between Free Speech and Gay Rights: The Implications of 303 Creative LLC v. Elenis


The recent ruling of the Supreme Court case 303 Creative LLC v. Elenis holds significant implications for the LGBTQIA+ community. The case revolves around Laurie Smith, a Colorado graphic designer who wanted to promote her business by designing wedding websites for couples. However, Smith felt obligated to not only provide for straight couples but also for LGBTQIA+ couples, even though she opposed gay marriage on religious grounds. Her decision to refuse service for gay couples directly violated the Colorado AntiDiscrimination Act (CADA), which prevents businesses from discriminating against marginalized communities. Furthermore, the law “defines discrimination not only as refusing to provide goods or services but also publishing any communication that says or implies that an individual’s patronage is unwelcome because of a protected characteristic.” The law directly applies to Smith’s case because, on her website, she explicitly states on her website how, due to religious reasons, she would not create wedding websites for gay individuals. Smith defends her actions by claiming that the First Amendment’s freedom of speech provision allows her to decide what messages she wants to convey; therefore, forcing her to design something that represents an ideology contrary to her viewpoints supposedly violates her constitutional liberties. As a result, Smith and her company challenged the law in federal court, and the case eventually made its way up to the Supreme Court. In a 6-3 decision in favor of 303 Creative LLC, the Supreme Court ultimately concluded that “The First Amendment prohibits Colorado from forcing a website designer to create expressive designs that convey messages with which the designer disagrees.” Additionally, the majority of justices asserted that Smith’s act of designing websites equated to a form of speech and fell under the protection of the First Amendment. 


The court’s decision directly affects members of the LGBTQ+ community as the precedent set by the court basically affirms that businesses can refuse service to gay people solely because free speech also entails the right not to express certain ideas. In their dissenting opinion, Justices Kentanji Brown Jackson and Elena Kagan expressed how “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.” Moreover, although the case reaffirms religious freedom, the justification of religion to openly discriminate against gay individuals sets a dangerous precedent rooted in internalized homophobia. In the words of Theo Myhre, a law professor at the University of Washington, “Now businesses that are open to the public, under public accommodations law, have a free speech exception and are able to discriminate against LGBTQ people if they disagree with the message in the expressive activity.” Many LGBTQ+ groups oppose the court’s ruling, seeking to find ways to reverse the decision and prevent further attacks from the Supreme Court. According to Katherina Franke, a 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.” While the case does not provide for explicit discrimination, “the case could open the door to more worrisome implications for the future.” For instance, the Supreme Court did not clearly define what they meant by “expressive activity,” in this case, the right of Smith to promote her designs on websites; therefore, many businesses could claim that they are exempt from such anti-discrimination laws because their products are “expressive” of the values. Ultimately, the extremely broad language of the case allows public businesses to interpret the ruling as they choose, laying a dangerous precedent for marginalized communities. For example, right after the Supreme Court released its decision, a hairdresser in Traverse City, Michigan, stated that she refused service to those not identifying as non-binary. In her deleted Facebook post, she definitely states, “If a human identifies as anything other than a man/woman, please seek services at a local pet groomer.” Her comment not only reflects the harmful applications of the court’s decision but reinforces homophobia that affects many LGBTQ+ individuals on a daily basis.


This case does not represent the first legal attack against the LGBTQIA+ community. For example, according to reports from the Department of Homeland Security, “nearly 500 anti-LGBTQ bills targeting gender-affirming care and drag have been introduced in this legislative session.” In particular, the intentional banning of books in Florida that feature gay characters and attacks on the transgender community have severely impacted the freedoms of LGBTQIA+ individuals. In the argument of those disagreeing with the case’s outcome, the First Amendment should not protect all forms of free speech, such as hate speech and homophobia. Currently, groups all across the United States are looking to pass legislation that helps to reverse many of the decisions that impact the LGBTQIA+ community as well as other marginalized communities.





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