by Noah Feldman
The Supreme Court’s decision in 303 Creative v. Elenis, in which the court created a free-speech based exemption from the civil rights laws, is intended to give permanent shape to the conservative majority’s gay rights jurisprudence. What does that mean for the future of LGBTQ equality?
On the one hand, the basic elements of the gay rights movement’s judicial victories will remain in place. Gay marriage will remain protected, and LGBTQ people will be covered by civil rights laws. On the other, anyone who can claim a conscientious objection to respecting gay rights is going to get a free pass to keep right on discriminating.
It’s significant that the 303 Creative majority opinion was written by Justice Neil Gorsuch, the conservative justice who wrote the 2020 Bostock decision protecting gay and trans people against workplace discrimination. Gorsuch isn’t so much contradicting himself as proposing what he must imagine is a cultural compromise. He is hoping that gay people will be satisfied with equality rights and that those who have opposed gay rights will be satisfied with the opt-out the court has given them.
But in practice, the “compromise” won’t be a stable equilibrium. It will keep fights about gay and trans rights in the courts — and in the news — for the foreseeable future.
To be sure, 303 Creative is not the first time the justices have used the First Amendment to permit otherwise unlawful discrimination against gay people. That distinction belongs to the 2000 case, Boy Scouts v. Dale, in which the court held the scouts had an expressive association right (under free speech principles) to exclude a gay scoutmaster.
But 303 Creative is the first time the justices have authorized anti-gay discrimination in a case where a for-profit business, open to the public, refused to serve customers because of the business’s disapproval of their decision to get married as a gay couple. The nonprofit Boy Scouts were effectively a club. 303 Creative is a web-design business. And businesses have been the main target of anti-segregation civil rights laws going back to the 1960s.
The ruling in 303 Creative is nominally limited to cases where a business owner invokes an activity protected by freedom of speech, like building a web site, as the reason to discriminate. It might or might not apply to situations where a conduct-based business, like a hotel or a restaurant, says it won’t serve gay or trans (or Black or Jewish) customers.
But there is little doubt that to Gorsuch, and several other conservatives on the court, the decision is a harbinger of more to come. While the court’s ruling in 303 Creative focused on speech rights, not religious freedom, the decision sets up the court to allow religious exemptions to civil rights laws in the future. Right now, a business has to invoke speech or expressive association rights to discriminate, which isn’t easy for many businesses. A free exercise ruling, in contrast, would allow essentially any business to assert a religious motive to refuse to serve Black people, gay people, trans people or interracial couples in the basis of a claim to religious liberty.
If the Supreme Court holds that religious liberty allows a business to refuse service to anyone its owners’ faith tells them to avoid, then there’s no stopping place. Religiously motivated racists can open segregated lunch counters and hotel chains. That would be much harder to do under a free-speech exemption theory, because they’d have to convince the courts that serving dinner or providing hotel rooms is free expression rather than just the conduct of business.
I seriously doubt Gorsuch wants to see Jim Crow reinstated under religious auspices. Instead, Gorsuch is seeking a middle ground in the culture war over gay and trans rights. As we know from the Bostock case, he is open to defending gay and trans rights when he reads the literal text of a statute as requiring it.
But as a staunch supporter of individual liberty, Gorsuch is making a bid to placate conservatives (mainly religious) who fear that gay and trans rights mean that they may be pressured to change their own practices and beliefs. Exemptions from civil rights laws are, I suspect, aimed to encourage those conservatives to stand down from attacking the gay and trans rights already affirmed by the courts.
But this approach isn’t going to end the culture war.
Advocates of equality know that exemptions can undermine civil rights, as happened in some religious circles after the civil rights movement of the 1960s, when Christian academies sprung up to avoid desegregation. Advocates for gay rights will keep fighting against a jurisprudence of exemptions.
For their part, while some conservatives may be satisfied with exemptions, others will view the court’s accommodation of their point of view as an invitation to keep trying to chip away at the landmark gay rights decisions of recent decades.
The upshot is likely to be more fighting, not less. And the risk is that, in their solicitude for Christians who can’t stomach equal rights for gay people, the court will undermine all civil rights laws.
