FACT CHECK: Does The 303 Creative Supreme Court Decision Allow Businesses To Refuse Service to LGBT+ Individuals?
Media outlets claimed that the Supreme Court’s decision in 303 Creative allows businesses to refuse service to LGBT+ customers.
— Axios (@axios) June 30, 2023
While the ruling gives leeway to individuals and businesses the ability to refuse to create custom messages, it does not grant businesses the ability to freely discriminate against LGBT customers, according to experts.
The Supreme Court ruled June 30 that a web designer could decline to create custom websites for same-sex weddings, according to SCOTUS Blog.
Media outlets have claimed that the decision allows businesses to refuse service to LGBT+ customers. For example, NPR reported that the Supreme Court “ruled that businesses could refuse LGBTQ customers.” An Axios article was headlined, “Supreme Court rules businesses can refuse service to LGBTQ+ customers.”
These claims are misleading. The 19th News, an outlet that describes itself as an “independent, nonprofit newsroom reporting on gender, politics and policy,” reported that “LGBTQ+ legal experts aid the ruling does not grant businesses a widespread license to turn away LGBTQ+ couples.”
“LGBTQ+ legal experts said the ruling does not grant businesses a widespread license to turn away LGBTQ+ couples. Instead, it creates a carve-out for business owners creating and selling art to reject specific commissions against their conscience,” the outlet reported.
Legal experts also said that the ruling is much narrower than a blanket license to discriminate against LGBT individuals.
Anthony Michael Kreis, an assistant law professor at Georgia State University, criticized the ruling but said that the decision “doesn’t give businesses license to discriminate against LGBTQ people (or anyone for that matter) as a general practice.”
This is the kind of stuff I’m urging caution against. It’s not that 303 Creative isn’t dangerous or bad, but it also doesn’t give businesses license to discriminate against LGBTQ people (or anyone for that matter) as a general practice. It is much more narrow; still disturbing. https://t.co/HxNnL3ehux
— Anthony Michael Kreis (@AnthonyMKreis) June 30, 2023
“This is the kind of stuff I’m urging caution against. It’s not that 303 Creative isn’t dangerous or bad, but it also doesn’t give businesses license to discriminate against LGBTQ people (or anyone for that matter) as a general practice. It is much more narrow; still disturbing,” Kreis tweeted.
Dale Carpenter, the Judge William Hawley Atwell Chair of Constitutional Law at Southern Methodist University, told Check Your Fact that NPR’s reporting was “not accurate.”
“The court specifically said that its decision was not permitting businesses to decline service altogether to any class of people,” Carpenter said. “Instead, businesses can only refuse messages that customers want them to create.”
Jonathan Adler, the Johan Verheij Memorial Professor of Law at the Case Western Reserve University School of Law, echoed Carpenter. (RELATED: Does Viral Video Show The Nova Kakhovka Dam Being Blown Up?)
“That is not what the Court held. It was stipulated that 303 Creative did not discriminate based on the identity or sexual orientation of customers. All that was at issue was the message conveyed, and whether 303 Creative could refuse to make websites promoting or celebrating a same-sex wedding,” Adler said to Check Your Fact.
Andy Grewal, the Orville L. and Ermina D. Dykstra Professor in Income Tax Law at the University of Iowa, said to Check Your Fact that Axios’ reporting that “Businesses can refuse to serve same-sex couples if doing so would violate the owners’ religious beliefs” was “wrong.”
“The issue in the case was whether the state could compel someone to express ideas that they disagree with. The Court said that Colorado could not. The Court expressly recognized the power of the state to protect gay customers generally. That is, ‘States may ‘protect gay persons, just as they can protect other classes of individuals, in acquiring whatever products and services they choose,'” Grewal said. “So, the state cannot force you to say ‘I respect gay marriage.’ But the state can force you to sell products and services to gay persons on the same basis that you sell to others.”
David Bernstein, a law professor at the Antonin School of Law at George Mason University, cautioned Check Your Fact that while the “holding could be expanded in future cases,” it was “for now it’s limited to granting businesses that aren’t traditional places of public accommodation a First Amendment defense to laws that would require them to engage in creative activity that contains elements counter to their beliefs.”
“There is nothing on the opinion that limits the scope of its holding to LGBTQ customers, nor can businesses generally refuse to serve LGBTQ when the law requires it. On the former point, an LGBTQ owned business could decline to create a website for a socially/theologically conservative Christian church despite laws banning discrimination based on religion,” Bernstein said.
Kate Sosin, a reporter for The 19th News, told PBS News that the courts “will now entertain this question of whether or not your religious freedom gives you the right to turn away an LGBTQ+ person because of your beliefs.” (RELATED: Did Drug Companies Spend $100 Million Lobbying Against The Inflation Reduction Act?)
“Theoretically, based on this decision alone, it shouldn’t. However, we have never had a decision where we say that your religious beliefs allow you to turn away LGBTQ+ people. And so cracking that door open, a lot of people feel like, could be the start of an avalanche,” Sosin said.
Check Your Fact reached out to NPR and Axios for comment and will update this article if a response is provided.