US Supreme Court rules website designer can refuse services to same-sex couples

Today’s decision by the U.S. Supreme Court in 303 Creative v. Elenis finds that the First Amendment’s free speech protections allow a website designer in Colorado to refuse to serve same-sex couples. Colorado’s Public Accommodations Act prohibits discrimination in public accommodations based on sexual orientation and gender identity.

The ruling is particularly important for the nearly 7 million LGBT people ages 13+ who live in states with statutes that provide non-discrimination protections in public accommodations for LGBT people.

“The Supreme Court’s decision today firmly establishes an exemption to anti-discrimination laws,” said Elana Redfield, Federal Policy Director at the Williams Institute. “If a service is ‘expressive’—which the court finds a wedding website to be—a business may now deny that service in some circumstances, even if it harms LGBT people or other protected groups.”

Williams Institute research has documented a history of discrimination in public accommodations. A 2016 Williams Institute study found that LGBT people experienced discrimination in public accommodations at rates similar to those of women and people of color. The study was cited by Justice Sotomayor in her dissenting opinion in today’s decision.

Although the case was decided on free speech grounds, the website designer asserted that creating these websites would require her to promote views inconsistent with her Christian religious beliefs.

Another recent study from the Williams Institute and NORC at the University of Chicago found that the majority of Americans favor civil rights laws protecting LGBTQ people against religiously motivated discrimination. In particular, 71% of U.S. adults oppose allowing businesses to refuse to serve LGBTQ people based on their religious beliefs.

“When a place of public accommodation refuses to serve LGB people because of their sexual orientation or their desire to marry a same-sex partner, that refusal adds to minority stress experienced by LGBTQ people due to stigma and prejudice,” said Ilan H. Meyer, Distinguished Senior Scholar of Public Policy at the Williams Institute. “Minority stress leads to adverse mental and physical health outcomes, including depression, substance use, and suicide attempts.”

In her dissent, Justice Sotomayor emphasizes that “discrimination is not simply dollars and cents, hamburgers and movies; it is the humiliation, frustration, and embarrassment that a person must surely feel when he is told that he is unacceptable as a member of the public because of his social identity…This ostracism, this otherness, is among the most distressing feelings that can be felt by our social species.”

The case is the third addressing LGBTQ rights decided by the Court over the past four terms. In 2021, the Court held in Fulton v. Philadelphia that the Free Exercise Clause of the First Amendment barred the city from applying its non-discrimination ordinance to a religious foster care agency that refused to serve same-sex couples. The Court’s decision in that case was narrow and tied to the specific facts of that case, meaning that its reach was limited. In a broad and sweeping decision in 2020, the Court held in Bostock v. Clayton County that discrimination based on sexual orientation and gender identity is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964.

Recent Research Findings

  • There are an estimated 3 million LGBT adults and 2 million LGBT youth ages 13-17 in the U.S.
  • Discrimination against LGBT people remains persistent and pervasive.
    • In a nationally representative study of LGBT people, 24% reported receiving poorer service in restaurants and stores, and nearly half reported being treated with less courtesy (45%) and less respect (44%) than non-LGBT people.
    • 2016 study found that LGBT people experienced discrimination in public accommodations at rates similar to those of women and people of color—between 1 and 4 complaints of discrimination are filed with state enforcement agencies per 100,000 people in each class.
  • Research shows that LGB people who have experienced a prejudice-related stressful life event were three times more likely than those who hadn’t experienced such an event to have faced a serious physical health issue.

Williams Institute scholars with pro bono counsel from Paul Hastings LLP submitted an amicus brief in this case.

June 30, 2023

Media Contact: Rachel Dowd
Office: 310-206-8982

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