Can businesses refuse service to gay people
What the 303 Creative Choice Means for Anti-Discrimination and Public Accommodation Laws
David Cole, ACLU Legal Director
Can a bakery that objects to marriage equality refuse to sell a cake to a gay couple for their wedding? This ask, or some variant thereof, has occupied courts even before marriages for gay couples were legally commended. In June 2023, in 303 Creative v. Elenis, the Supreme Court addressed this question in a case asking whether a wedding website design business could refuse to style websites for weddings of same-sex couples. The court ruled for the business. But properly understood, the decision does not license discrimination; it merely recognizes that where a business will not provide a particular product or service to anyone, it has the right to deny it to a same-sex attracted couple. That exception should not apply to most applications of anti-discrimination laws, which require only equivalent treatment, and do not require businesses to provide any particular service or product. As I clarify in more detail in this Yale Law Journal article and as we argue in this model brief, 303 Creative does not create a First Amendment right to discriminate.
Can a b
"We Do No Such Thing": What the 303 Artistic Decision Means and Doesn't Mean for Anti-Discrimination and Universal Accommodation Laws
Businesses offering expressive services do not have a First Amendment right to refuse to assist customers based on their identity. The SCOTUS decision merely recognizes a business’s right to select not to market certain products to anyone.
David Cole,
Former ACLU Legal Director
Can a bakery that objects to marriage equality refuse to barter a cake to a gay couple for their wedding? This question, or some variant thereof, has occupied courts even before marriages for same-sex couples were legally acknowledged. In June 2023, in 303 Innovative v. Elenis, the Supreme Court addressed this question in a case asking whether a wedding website design business could refuse to design websites for weddings of gay couples. The court ruled for the business. But properly understood, the verdict does not license discrimination; it merely recognizes that where a business will not provide a particular product or service to anyone, it has the right to decline it to a gay couple. T
Can Businesses Turn LGBT People Away Because of Who They Are? That’s Up to the Supreme Court Now.
The Joined States Supreme Court just agreed to decide a case about whether a business can oppose to sell commercial goods to a gay couple because of the business owner’s religious convictions. A win for the business could gut the nation’s civil rights laws, licensing discrimination not just against lesbian, gay, bisexual person, and transgender people, but against anyone protected by our non-discrimination rules.
In July 2012, Debbie Munn accompanied her son, Charlie Craig, and his fiancé, Dave Mullins, to the Masterpiece Cakeshop just outside of Denver to pick out a cake for their wedding reception. When the bakery’s owner heard that the cake was for two men, he said he wouldn’t barter them a cake because of his religious beliefs.
Debbie was stunned and humiliated for Charlie and Dave. As she has said, “It was never about the cake.” She couldn’t think that a business would be allowed to turn people away because of who they are or whom they love. They might as well have posted a sign in the shop saying “No cakes for gays.”
The Colorado courts agreed with Debbie and ruled
Did the Supreme Court Say Businesses Can Now Discriminate Against LGBT Customers—and Employees Too?
The U.S. Supreme Court recently dominated that businesses can now legally deny service to LGBT people in specific circumstances. Its choice in 303 Innovative v. Elenis allowed a graphic architect to rely on her First Amendment right to free speech to oppose to make wedding websites for gay couples. This view single-handedly upended non-discrimination laws in the marketplace, but its effect is even more far-reaching: as early as the same day as the ruling, it was used to argue for the right to terminate LGBT employees.
LGBT People Have Been Under Attack
It was only 20 years ago that consensual queer sex was decriminalized in the Together States. Since then, marriage was opened to same-sex couples (2015), and non-discrimination protections in employment were applied to many LGBT people across the state (2020).
Oh, how things have changed. More than 400 anti-LGBT bills have been proposed in mention legislatures in just the past year. Hearkening back to the most virulent homophobia of the 70s, LGBT people are now casually being referred to as “child groom