Legal experts have mixed opinions, but most of them say that the answer, at least for the majority of businesses, is no – at least for now.
Justice Neil Gorsuch, who wrote the majority opinion, noted repeatedly that the case, 303 Creative LLC v. Elenis, centered on a very specific type of speech. The website designer’s business provided “expressive,” individualized services and involved “pure speech,” meaning literal written words. However, many businesses provide expressive services, legal experts said.
And even though Friday’s decision was narrow, some experts said it could be expanded in coming years to slowly chip away at nondiscrimination laws that prevent businesses from discriminating against people based on their race, religion, sexual orientation, gender identity, age or any other protected class they might fall into.
The Supreme Court’s ruling Friday in favor of a Christian website designer who doesn’t want to make wedding websites for same-sex couples has raised a long list of legal questions
“A hairstylist is expressive, an architect provides an expressive service, a college application essay assistance service is expressive, a photography studio provides expressive services,” said David Cole, legal director of the American Civil Liberties Union, who argued a case before the Supreme Court involving a Christian baker in Colorado who refused to make a wedding cake for a same-sex couple.
“So does this mean that a corporate photography studio could refuse to take portraits of women because of the belief that women should not work outside the home? The majority, said Cole, “does not take on that core question, which is, what is the limit of their decision?”
Smith argued that she should be able to refuse to provide her creative services for same-sex weddings, which go against her religious beliefs. She never faced penalties for refusing a same-sex couple and sued on hypothetical grounds.
e-sex couples in Obergefell v. Hodges, the Supreme Court case that granted same-sex couples the right to marriage, called the court’s ruling “a mixed bag.”
Bonauto, who now serves as the civil rights project director at GLBTQ Legal Advocates & Defenders, or GLAD, said she interpreted the court ruling to protect only businesses that offer services as unique and specific as Smith’s.
Christian website designer Lorie Smith sued the state of Colorado in 2016, arguing that its anti-discrimination law – which prohibits discrimination in public accommodations based on one’s race RevisiГіn del sitio de citas de AmoLatina, creed, disability, sexual orientation or any other protected class – violates her right to free speech under the Constitution’s First Amendment
“The overwhelming majority of businesses out there do nothing like this, nothing like vetting and unique customization per person, per couple and creating unique artwork and designs and texts for each. The fact that this was all in writing was extremely influential to the court,” Bonauto added, referring to Smith’s website designs. “I want to be clear, however, that this does open the door to businesses that want to claim they provide customized services and therefore use that claim to discriminate against people they would prefer to exclude.”
Bonauto acknowledged that the way the public might interpret “expressive” services could differ from the court’s interpretation in Friday ruling.
“On the one hand, I think many people put a lot of heart into their work, and so they feel like it expresses them. On the other hand, the law is much more limited about what counts as expression,” she said. “And the fact that you, yourself, create original texts out of your own head, your own mind, your own creativity, and write that for someone else, and it’s very customized to the individual, is what the court says is on the side of the line of constituting expression.”
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