The Supreme Court’s 303 Creative Case Would Undermine A Century Of Equal Access Laws

The United States Supreme Court heard oral arguments Monday in the case that could determine the future of Colorado’s anti-discrimination and public accommodation laws. Alexis Kenyon has more.

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In the 303 Creative v. Elenis case, plaintiff Lorie Smith, a Littleton-based graphic artist, is challenging Colorado’s Anti-Discrimination law, arguing it impedes her free expression.

Smith wants to be able to publicly refuse web design services to same-sex couples, which would be illegal under state law.

Colorado Attorney General Phil Weiser, representing Colorado’s team, argued the case specifically dismantles the public accommodations requirement that allows everyone access to a public marketplace, regardless of who they are. “We have, in Colorado, a number of protective classifications, including race, gender, gender identity, sexual orientation, and religion,” Weiser said. “In this case, someone would be denied access because they are a same-sex couple.”

If the Supreme Court sides with 303 Creative in its argument, the ruling would create a loophole in Colorado’s anti-discrimination law, which lawyers for 303 Creative call an “expressive interest” or moral objection. 

“I should underscore that this case is not a religious case,” Weiser said. “It is not about religious-based concerns or exemptions based on religion. It’s a broad free speech claim, which means anyone’s moral objections would be relevant.”

303 Creative v. Elenis is the second time in five years the Supreme Court has heard a case involving a Colorado business owner not wanting to provide services to same-sex couples. 

In 2017, the Supreme Court heard a case involving a Colorado baker who refused to make a wedding cake for a gay couple. The case resulted in a narrow ruling in favor of the plaintiff. 

The difference, says Weiser, is that in the 2017 case, the court had specific facts to rule on because it was dealing with a real dispute between a gay couple and a baker who didn’t want to make them a cake. In the case of 303 Creative, no one has sued about wanting a marriage website. The entire argument, Weiser said, is hypothetical. 

“This business, 303 Creative, has yet to refuse any couples as yet to make any wedding websites,” Weiser said. “So that complicates matters because if the court were to rule in their favor, it’s not as if we have a clear set of facts that the court is ruling based on. The court is having to rule for all sets of facts, which to our mind, raises a concern of an over-broad exemption.”

If Colorado loses the case, Weiser says it would undermine nearly a century of legal precedent for public accommodation. 

 “We believe this principle, ‘you open up your doors to the public, You serve all commerce,’ is an important one. It protects access to the marketplace and prevents people from the indignity of being told ‘we don’t serve Jews here. We don’t serve women here.’ That’s a pretty far-reaching implication that undermines our core civil rights commitment. We’ve not seen this in American law before. It is a real risk to see it in this case. And that’s why we’re fighting so hard to defend Colorado civil rights law.”

303 Creative v. Elenis comes at the heels of a series of cases in which the conservative majority of the Supreme Court has sided with plaintiffs professing religious views. In June, after overturning the federal right to abortion, Justice Clarence Thomas said that the court should reconsider “established gay rights and access to contraception.”

Weiser says, especially in light of the Club Q shooting, which left 5 dead and another 19 wounded at a gay nightclub in Colorado Springs just weeks ago, supporting an exemption like this one is a step backwards.

“If we start excluding people based on who they are,” Weiser said, “we are sending a message. We are forcing people to suffer an indignity that goes against a commitment that our nation had at our founding. E pluribus Unum. From many, we are one.”

The Supreme Court will likely deliver its decision on 303 Creative v. Elenis in June 2023. 

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