Three-Minute Legal Talks: The 303 Creative Case Explained

In the Supreme Court case 303 Creative, LLC v. Elenis, a graphic designer's religious beliefs clash with anti-discrimination laws. As the Court examines the intersection of free speech and public accommodations, the outcome has the potential for consequential repercussions concerning both creative expression and the LGBTQ community.

Theo Myhre, teaching professor at UW Law, discusses how this ruling creates a delicate balance between civil rights and freedom of speech, while also raising challenging questions about the limits of artistic autonomy and the scope of anti-discrimination protections.

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Theo Myhre: Are we entering a new time for civil rights in the United States? I'm Professor Theo Myhre from the University of Washington School of Law. And recently, the United States Supreme Court issued a decision called 303 Creative vs. Elenis.

Three-Minute Legal Talks: What does this case say?

TM: Well, what happened in that case is a graphics designer from Colorado, named Laurie Smith,  wanted to expand her business to also create websites for weddings. But Colorado has an anti-discrimination law and Laurie Smith was afraid that she would be forced to create websites for same-sex couples. And for religious reasons, she does not agree with same-sex marriage. So, the court held that Colorado cannot force a website designer to create a wedding website for same-sex couples when that creative expression embodies a message with which she disagrees. That's the holding of the case.

TMLT: What is the criticism of the case?

TM: Well, there's a lot of criticism. But let's begin with the dissent in the case. The dissenting justices say this is a public accommodations case, not a religious freedoms case and in public accommodations that means that a business that is open to the public needs to serve the whole public. So, people are entitled to equal treatment and access to businesses. So, what does that public accommodation mean to us? That's something like, like restaurants or like hotels, or like service providers like website designers. So, when you're open to the public, you have to comply with anti-discrimination laws that you can't discriminate against women or people of color, right? Or LGBTQ people, until this case.

TMLT: How will this affect LGBTQ people?

TM: This case creates an exception under the First Amendment free speech provision — or for people engaged in expressive activities — when they disagree with the message being sent in that activity. So 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.

TMLT: How does this affect everyone else?

TM: Well, what this means for us is that, if for religious purposes, some people believe that women are second class to men, there could be a justification under their religious beliefs for discriminating against women in public accommodation. The same could be said of a religion that had a belief in the superiority of one race over another. Many religions have slavery listed as part of their history.

TMLT: What should we expect going forward?

TM: Well, this case did not define what expressive means. So, there's going to be a lot of litigation to figure out if a business is engaged in expressive conduct. What about the design of a hotel room? What about the kind of food you're making? What about the hairstyle you design? Right? Can salons discriminate? Can hotels discriminate? Can restaurants discriminate? The questions arising in this case have a profound and deep impact on the progress of civil rights in the United States. So, from here, we will now see a change in civil rights.