303 Creative Was Never About Websites

Courts Resources, Fighting Hate & Bias Resources 08.31,23

By Kylee Reynolds

This year has the dismal distinction of being the year when more anti-LGBTQ bills have been introduced than ever before (nearly 500 across 46 states). From stripping away the right to gender-affirming health care to criminalizing the art of drag and everything in between, all state and local legislators who introduce these bills send queer people the same message — “we don’t want your kind here.”

On the last day of Pride month this year, the U.S. Supreme Court echoed this message when the Court’s six ultra-conservative justices issued their ruling in 303 Creative v. Elenis, granting judicial permission to those who seek to deny queer people the same rights and protections in public accommodations afforded to the rest of the population.

The plaintiff in this case is Lorie Smith, a web designer who would like to begin creating wedding websites for couples — provided, of course, that the couple is a man and a woman. Because Colorado law prohibits discrimination in public accommodations based on sexual orientation, Ms. Smith asked the court for an injunction barring Colorado from enforcing their laws against her, thereby allowing her a license to discriminate and to turn away queer couples who might seek her wedding website services.

And — in case there was any ambiguity about the clientele Ms. Smith is willing to serve — she additionally asks the Court to allow her to publish a statement on her website informing queer couples that if they’re seeking wedding websites, they’d best look elsewhere.

Justice Gorsuch, writing for the majority, cited First Amendment protections and granted Ms. Smith’s requested relief. The conservative majority also found no issue with her request to publish a statement on her website informing potential clients that she refuses to create wedding websites for same-sex couples. In a mere 26 pages, our country’s highest court granted explicit protections to those wishing to hang a 21st century version of a “No Queers Allowed” sign on their business.

No matter how insistently some might classify this case as open and shut First Amendment jurisprudence, it’s anything but. This was a calculated attack against queer people. And for proof of this, we needn’t look further than the oral arguments from Ms. Smith’s attorney — Kristen Waggoner, the president and CEO of Alliance Defending Freedom.

For those keeping tabs on cases attacking the LGBTQ community, the work of Alliance Defending Freedom is well-known. In keeping with the anti-LGBTQ conduct that landed them a spot on the Southern Poverty Law Center’s list of designated hate groups, Ms. Waggoner took every chance she could to demean the marriages of queer people. By way of example, she brazenly used the term “false marriages” repeatedly to describe same-sex marriages, banging on the old conservative drumbeat that our queerness makes the marriages, families, and lives we create together somehow “less legitimate.”

Masterpiece Cakeshop was never about the cake, just like Plessy v. Ferguson was never about train rides. And make no mistake: 303 Creative was never about websites. 

How quickly the Court forgets that only eight years ago in Obergefell v. Hodges, they decisively held that queer people “…ask for equal dignity in the eyes of the law. The Constitution grants them that right.” Instead, the majority opinion in 303 Creative mentions dignity only one time, and it does so abstractly, as though the idea barely warranted a mention.

Only Justice Sotomayor’s fiery dissent — joined by Justices Kagan and Jackson — addressed the true heart of the matter. Calling the majority’s opinion “profoundly wrong” and “a grave error,” Justice Sotomayor explains that allowing this invidious discrimination will beget cruel consequences for queer people and their families.

“By issuing this new license to discriminate in a case brought by a company that seeks to deny same-sex couples the full and equal enjoyment of its services, the immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status. In this way, the decision itself inflicts a kind of stigmatic harm, on top of any harm caused by denials of service.”

It’s a painful reminder that who sits on all of our country’s courts matters tremendously to our civil and human rights — and that we still have a long way to go.

Public trust in the judiciary is strengthened when the composition of our courts reflects the diverse communities they serve, and our federal judiciary is lacking this crucial representation from judges with varied professional and lived experiences (which might help explain why more than half the population distrusts the judicial branch).

By way of example, more than 23 million people in the United States identify as LGBTQ, a number that has nearly doubled in the last decade and continues to grow. However, fewer than 25 openly LGBTQ people have ever been confirmed as Article III lifetime federal judges. Of these, only four have been confirmed to federal appellate courts and none have ever served on the U.S. Supreme Court. These numbers are just one reflection of how little our current judiciary looks like our country.

While it’s sometimes hard to remember how far we’ve come when the Supreme Court decides a case like 303 Creative, we have made strides. Although much more work remains, the Biden administration has shown more commitment to diversifying the federal bench than any previous administration. While our country has indeed only had fewer than 25 openly queer Article III lifetime federal judges in its history, nearly half of them have been confirmed during this administration. Among them are many notable civil rights lawyers, such as Beth Robinson, who became the first lesbian to ever serve on a federal circuit court, and Charlotte Sweeney, who became the first openly LGBTQ woman to serve on a federal district court west of the Mississippi River.

While the confirmation of judges like these is a great start, it’s not nearly enough. We need more judges who understand what’s really at stake in these kinds of cases — judges who can see that they’re not about websites or cake, but about the ability of queer people to live with dignity in a country that protects their rights to openly live their lives authentically and proudly. Our country needs more queer judges who understand the real consequences that these decisions carry, and we need to let our elected officials know that we want to see more of this change.

As much as legislators, hate groups, and yes, even occasionally our Supreme Court might try, they won’t force us back into the closet. We stand on the shoulders of all the LGBTQ pioneers who came before us and paved the way for us to live our lives freely and unapologetically, no matter who would rather we didn’t.

We’re here, we’re queer, and one way we need to demand change is ensuring that we’re represented on our federal judiciary.

Kylee Reynolds is policy counsel for the fair courts program at The Leadership Conference on Civil and Human Rights.