Evaluating 303 Creative: Implications for LGBTQIA+ Equality and First Amendment Challenges to Antidiscrimination Laws

Please join BU School of Law faculty in a discussion about the implications of the US Supreme Court’s decision in 303 Creative, LLC v. Elenis. The panel will be moderated by Victoria Shannon Sahani, Associate Provost for Community & Inclusion and Professor of Law. Panelists include Sean J. Kealy, Clinical Associate Professor of Law; Linda McClain, Robert Kent Professor of Law; Robert Tsai, Professor of Law & Law Alumni Scholar; and Michael Ulrich, Assistant Professor of Health Law, Ethics, & Human Rights.

Panelists will discuss what this decision means for LGBTQIA+ rights and the protections afforded more broadly by nondiscrimination laws, as well as the implications of defining goods and services offered in the marketplace as creative expression and speech protected by the First Amendment.

In June 2023, via a 6-3 decision, the Court ruled that a website designer operating a business open to the public may refuse to create wedding websites for LGBTQIA+ couples because they are “contrary to ‘her belief that marriage is a union between one man and one woman’” and may communicate her intention to refuse such service. Treating the designer’s websites as creative expression and as “pure speech,” the Court concluded that Colorado’s public accommodations law—which prohibits businesses from denying goods and services to customers based on their sexual orientation, gender identity, sex, race, nationality, disability, and other protected classes—conflicts with the First Amendment by compelling both her speech and silence and stifling the “marketplace of ideas.” A strenuous dissent by Justice Sotomayor (joined by Justices Jackson and Kagan) framed the issue very differently: the majority was departing from the Court’s long recognition of the constitutionality of antidiscrimination law and its defenses of such laws against constitutional challenges brought by business owners.

While Justice Gorsuch’s majority opinion offered little guidance about the scope of the Court’s ruling, 303 Creative has been perceived as a blow to LGBTQIA+ civil rights. In other states people have begun to refuse services on this basis, including a Texas judge who argues that she should be allowed to refuse to officiate same-sex weddings and a Michigan hair stylist who refuses services to trans and nonbinary customers. Similar to the 303 Creative dissenters, many are concerned that the majority’s First Amendment ruling may have far broader implications for antidiscrimination laws, which protect against many types of discrimination beyond sexual orientation.

Sponsored by the LGBTQIA+ Center for Faculty & Staff and BU School of Law