The Supreme Court didn’t issue a ‘licence to discriminate’ against queer and trans people. The reality is more complicated

The U.S. Supreme Court marked the end of Pride Month with a seemingly brutal blow to LGBTQ2S+ equality: in the case 303 Creative v. Elenis, the court ruled 6–3 in favour of plaintiff Lorie Smith, a Christian website designer who sought to refuse business to LGBTQ2S+ couples. In the immediate aftermath of the decision, many feared it was a sweeping declaration that businesses have the right to discriminate against queer and trans customers, and one that would potentially erode decades of civil rights victories. In a 70-page ruling, conservative justice Neil Gorsuch, writing for the majority, opined that America is founded upon “tolerance, not coercion … The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands,” he argued.

But LGBTQ2S+ legal advocates say the ruling in 303 Creative is far more singular and idiosyncratic than some may have initially worried. An op-ed published in The Hill on Wednesday declared that the Supreme Court “just legalized LGBTQ2S+ discrimination,” and a similarly themed editorial in El Pais said the case marks the first time in history that the federal judiciary granted a “licence to discriminate.” After a week which also saw the Supreme Court overturn affirmative action and nix U.S. president Joe Biden’s student debt plan, Congresswoman Rashida Tlaib (D-Mich.) tweeted a call to expand the number of justices appointed to the court, institute ethics standards and introduce term limits for members of the bench. The intense blowback aimed at the court over the past week follows months of criticism aimed at far-right justice Clarence Thomas for accepting lavish gifts—and even tuition payments for Thomas’s grandnephew—from GOP megadonors. 

Those criticisms will continue to hound the Supreme Court for years, but when it comes specifically to 303 Creative, its immediate implications are likely to be far more muted. Although the decision could open the door to greater attacks on equality on behalf of the Supreme Court, many experts say the ruling is not a licence to discriminate. At the time of publication, non-discrimination laws remain fully legal and on the books in more than 20 states. “We saw this coming,” says Janson Wu, executive director of the legal advocacy group GLAD. “Our opponents have not hidden the fact that they want to reverse LGBTQ2S+ rights, and so it wasn’t a surprise. I was certainly concerned because of the really dangerous turn it reflects toward a future where equality and fairness in the marketplace is not the norm, but at the same time, I felt relieved that the decision was pretty narrowly focused on a business that provides very customized tailor services to clients that it chooses for very specific reasons.”

The ruling in 303 Creative is highly unprecedented, but its application could be severely limited by its own particularities, according to LGBTQ2S+ experts. Although the Supreme Court has previously ruled that non-profits have the ability to discriminate on the basis of their beliefs, this is the first time it has ever ruled that an individual business has the same ability. But according to Sarah Warbelow, legal director at the Human Rights Campaign, the ruling itself was tailored to the kinds of commercial services that Smith provides. “This decision really only applies in circumstances where there are original custom goods or services at issue,” she says. “Those goods or services have to be expressive in nature, so they have to be conveying an actual message or meaning. In addition, Lorie Smith was very much not presenting herself as fully open to the public. She was vetting clients and making choices about which clients she would take on, which is more akin to, say, a speech writer or an artist who takes commissions, as opposed to someone who is making themselves open and available to the public.”

These distinctions are critical, according to Wu, because businesses are typically designed with an “all comers” mentality. He noted that Gorsuch had the opportunity to expand the decision more broadly—to businesses like bakeries and floral shops—and explicitly chose not to do so. In fact, the justice argued in his decision that Colorado’s anti-discrimination laws apply to Smith differently because, unlike a florist, she does not service all customers who reach out to her. “It remains to be seen how broadly this opinion will be interpreted by lower courts,” Wu says. “But for now, we should take the Supreme Court at its word: that this is a very unique type of company that provides custom services to select clients and that does not include the vast majority of businesses.”

Of course, right-wing legal outfits are sure to attempt to exploit the Supreme Court’s ruling by expanding the decision to other kinds of businesses, arguing that the services they offer do fall under the purview of this decision. One way that could happen is by claiming that the services they offer are so inherently artistic that they likewise merit free speech protection under the First Amendment. But Camilla Taylor, deputy legal director for litigation at Lambda Legal, says 303 Creative may not give conservatives much of an opening to expand the scope on those grounds. She cites a moment during oral arguments where even the attorneys with Alliance Defending Freedom, the legal network that represented Smith in court, noted that they would not argue that makeup artists are entitled to constitutional protection from anti-discrimination laws. Rather than just art itself, Smith hoped to create individualized pages to tell the stories of each couple with whom she contracts as part of her website design. “I think the court relies on the fact that [Smith] is telling an elaborate narrative with words and that she’s creating a story about each couple’s loving relationship in a manner that expresses her own unique voice,” Taylor says. 

The standard established by 303 Creative may, thus, be a high bar for other cases to meet: an instance where a business owner engages in complex storytelling using their own words or pure artistic expression, while not offering their services to members of the general public. A T-shirt designer creating a book of various graphics for potential customers to choose from would, for instance, probably not fall under these definitions. While Taylor is troubled by the fact that the Supreme Court’s ruling will pave the way for other similar cases to be brought before the bench, the ruling is a landmark for LGBTQ2S+ civil rights in at least one aspect. “It actually makes explicit that non-discrimination laws should be enforced with respect to sexual orientation, in precisely the same way that they should be enforced with respect to race and sex, and that there’s a compelling justification for enforcement of non-discrimination laws,” she says. “That’s something that the court hasn’t said before, specifically in the context of sexual orientation.”

But LGBTQ2S+ critics say the 303 Creative case, nonetheless, sets a troubling precedent in future cases, especially considering that it was founded upon what appears to be a lie. 

While court documents in 303 Creative cited Stewart, a gay man who had allegedly reached out to Smith to inquire about services, a New Republic report suggests the incident was fabricated: when reached for comment, the individual claimed that he had never contacted Smith and that he is a straight man married to a woman. No same-sex couple had ever contacted Smith, who hadn’t yet even created her wedding website business. This situation contrasts starkly with the Supreme Court’s 2018 decision in Masterpiece Cakeshop, in which actual discrimination had occurred: Jack Phillips, a Christian baker, refused to provide a wedding cake for Charlie Craig and David Mullins in 2012 when they contacted his business. 303 Creative could open the door to more cases that are founded upon speculation or outright falsehoods.

If nothing else, Friday’s decision is yet another reminder of the continued importance of fighting for equality in the face of attacks on the community’s right to exist, according to queer and trans advocates. A record number of bills—more than 500—have been introduced this year that seek to strip away basic rights and protections for LGBTQ2S+ Americans, with the largest number of state legislative proposals targeting trans youth. And the decision isn’t the first in recent memory to trigger alarm bells that a devastating rollback of LGBTQ2S+ equality is on the horizon: Three years after the Supreme Court’s narrow ruling in favour of Phillips, justices ruled 9–0 in favour of a faith-based foster care agency that declines to place children in same-sex households. But even the June 2021 ruling was tailored to the specific facts of that case: In Fulton v. City of Philadelphia, the Supreme Court took issue with Philadelphia’s application of its non-discrimination laws, while affirming the constitutionality of civil rights protections more broadly.

And so while the outcome 303 Creative was undoubtedly a setback, many remain optimistic for the future of queer and trans equality. “Our movements make progress over decades and generations, not days, months or years,” Wu says. “There are LGBTQ2S+ people who never imagined in a lifetime that they would be able to marry the person that they love, and now LGBTQ2S+ youth take that for granted, which they shouldn’t. Ten years ago, there were only a handful of pockets in our country that even provided gender-affirming care for trans youth. These attacks on access are a response to the growing accessibility of necessary medical treatments. These attacks are a sign of our successes, not our failures. They reflect our strength and resilience, not our weakness.”

While the scope of the 303 Creative ruling may be limited, the posture and opinions of the six conservative justices on the Supreme Court point to trouble ahead for established LGBTQ2S+ rights. For more, check out Katelyn Burn’s op-ed.