On the final day of Pride Month, the Supreme Court delivered a blow to gay rights. In 303 Creative vs. Elenis, the conservative supermajority on the court ruled, 6-3, that a web design company could deny its wedding website services to same-sex couples. For the first time in our history, the Supreme Court granted a business open to the public a constitutional right to discriminate against would-be customers.
The web design company, 303 Creative LLC, had never provided wedding websites, but its owner, Lorie Smith, wanted to do so. The obstacle was a Colorado public accommodations law that requires businesses open to the public to offer full and equal access to the goods and services they offer. But Smith did not want to sell wedding websites to same-sex couples. Requiring equal service, she argued and the Supreme Court agreed, violated her right to free speech.
To get there, the justices had to turn a law prohibiting discriminatory service to customers into an attack on free speech. It’s important to understand what public accommodations law does and does not do. It doesn’t target speech. It does not require any person to open up sales to the public at large. It doesn’t demand that a business sell any particular product or perform any specific service. But the law has meant that a business open to the public must offer its services equally to people without regard to race, religion, sex or — in many states, including Colorado — sexual orientation.
