In February, the U.S. Supreme Court announced that it would hear an appeal of the case 303 Creative v. Elenis during its 2022-23 term. The case is a challenge to Colorado civil rights law, which prohibits businesses open to the public from discriminating against people because of their sexual orientation. According to the Movement Advancement Project, 32 states and the District of Columbia have similar laws on the books.
A Supreme Court decision against Colorado could undermine these laws and have repercussions for how LGBTQ people are treated across the country. Because of the legal theory at the heart of the case—which suggests that public accommodation laws may violate some companies’ right to free speech—a decision against Colorado would provide a novel loophole to the Supreme Court’s ruling in Bostock v. Clayton County, which otherwise prohibits private businesses from discriminating against customers on the basis of their sexual orientation or gender identity.
But is it actually possible that the Supreme Court will rule in favor of the conservative litigants in this case? And how might a conservative ruling in this case ultimately affect LGBTQ Americans?
The Supreme Court Was a Relatively Reliable Ally of LGBTQ Rights, but It Has Become Increasingly Conservative
Since Romer v. Evans in 1996, when the Supreme Court overturned a Colorado constitutional amendment that barred state and any local governments from prohibiting discrimination against gays and lesbians, the court has largely been supportive of LGBTQ rights. For the most part, the court has decided in favor of LGBTQ people when the government allowed discrimination against them.
Many legal observers have noted that former Justice Anthony Kennedy was the key to these legal victories. As the swing vote on LGBTQ rights, Justice Kennedy authored most of the court’s opinions when it decided such cases, including the case that legalized same-sex marriage, Obergefell v. Hodges.
But opposition to that case, Justice Kennedy’s retirement, the death of Justice Ruth Bader Ginsburg, and the arrival of Kennedy and Ginsburg’s more conservative replacements on the court have worried LGBTQ rights advocates. Even Justice Kennedy was wary of government actions that could be seen as compelling private groups to recognize the rights of LGBTQ people, and Justices Clarence Thomas and Samuel Alito opined in 2020 that Obergefell has “ruinous consequences for religious liberty.”
The case of 303 Creative elicits fear from LGBTQ rights advocates because the team of evangelical Christian lawyers who brought the suit is not arguing that Colorado’s civil rights law violates a business owner’s right to practice their religion but instead that it violates free speech rights. In short, the lawyers want the Supreme Court to rule that the owner of 303 Creative should be allowed to refuse to make websites for same-sex marriages, arguing that disallowing the owner’s refusal amounts to the government forcing her to endorse a message that goes against her religious beliefs. This conflation of the discriminatory denial of services with protected speech creates, in the words of opponents, “a license to discriminate.”
Because the Supreme Court is able to review cases such as these even when only four justices vote to hear them, it is still possible that five of the nine Supreme Court justices will be skeptical or dismissive of the claims in this case. Additionally, the court could issue a narrow, procedural decision in this case, as it did in its recent Masterpiece Cakeshop decision. But the new conservative voices on the Supreme Court could still very much win the day, leading to public backlash and immediate negative ramifications for LGBTQ people nationwide.
The Public Generally Opposes Religious Exemptions, but White Evangelical Christians Remain Supportive
In many ways, the Supreme Court’s view of LGBTQ rights in the past two decades followed a trend in growing support for LGBTQ rights across the United States. A majority of Americans, including a majority of those in most religious groups and half of Republicans, now support same-sex marriage.
Recent polling by PRRI also suggests that most Americans oppose laws that allow business owners to discriminate against LGBTQ people on the basis of their religious beliefs. Although roughly nine in ten Americans believe that people should be free to follow their religious beliefs provided that they do not cause harm to others, most Americans seem to believe that exemptions to nondiscrimination laws would indeed significantly harm a marginalized population.
Polling thus suggests that most Americans would not support an exemption to Colorado’s civil rights law prohibiting businesses from discriminating against same-sex couples. Indeed, a ruling in favor of 303 Creative could lead to more public backlash against the Supreme Court, which is already facing record low approval ratings.
Still, PRRI’s polling shows that 62% of white evangelical Christians support letting business owners turn away LGBTQ people for religious reasons. Additionally, roughly one-third of white evangelicals favor allowing publicly funded, religiously affiliated agencies to reject gay or lesbian adoptive parents, and nearly two-thirds favor allowing doctors, pharmacists, and health care workers to refuse to provide contraceptives or abortion services on religious grounds.
Because a majority of Supreme Court justices represent white evangelical Christians’ ideological views and have expressed their willingness to expand protections for faith-based groups, white evangelical Christians’ support for exemptions to nondiscrimination laws could provide the increasingly conservative Supreme Court with the cover it needs to issue a conservative ruling in this case.
Policy Curtailing LGBTQ Rights Will Proliferate in Republican-Led Legislatures
A Supreme Court decision allowing some businesses to turn away same-sex couples would undoubtedly have immediate negative effects on many LGBTQ Americans, making it harder for them to obtain services that can be classified as “speech.”
Some states have already passed laws allowing businesses to deny LGBTQ people services based on conservative religious beliefs. In 2016, for example, Republicans in Tennessee adopted a law allowing religious therapists to refuse treatment to LGBTQ people despite a majority of the population opposing the law. A conservative ruling in the 303 Creative case would not only strengthen the legal bases for such laws but also undermine nondiscrimination laws in more liberal states.
Republican-led state legislatures have recently been introducing bills targeting LGBTQ people at a record pace. So-called bathroom bills, “don’t say gay” bills, and bills to ban transgender athletes and eliminate gender-affirming health care for trans youth are proliferating. The court’s decision in 303 Creative could further embolden lawmakers to introduce more of these laws, and convince more governors to sign them into law if they think the court will sustain them—just as recent court decisions have emboldened state legislators to enact new abortion restrictions.
As the American Psychological Association has pointed out, policies that authorize discrimination against LGBTQ people have harmful effects on the physical and psychological health of LGBTQ people across the country. If the court allows businesses like 303 Creative to discriminate against same-sex couples, we can expect Republican-led state legislatures to expand their efforts across the American health care, foster care, and education systems, with severe consequences for the well-being of LGBTQ Americans.
R.G. Cravens III, Jonathan S. Coley, and SJ Crasnow are members of the 2021-2022 cohort of PRRI Public Fellows.