Interview: How the Supreme Court’s decision in 303 Creative could open the door to discrimination in Colorado

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22min 55sec
Denver PrideFest. June 24, 2023.
Kevin J. Beaty/Denverite
Denver PrideFest. June 24, 2023.

Colorado has outlawed discrimination in public places based on race or religion since the earliest years of its statehood. In 1957, Colorado passed a more comprehensive Anti-Discrimination Act, and in 2008, it was amended to outlaw discrimination based on a person’s sexual orientation or gender identity. 

However, in June 2023, the U.S. Supreme Court decided that under the law, a website designer, Lorie Smith, could not be forced to make wedding sites for gay couples through her company 303 Creative. Six justices on the court said that would not be discrimination, and instead, would preserve the designer’s right to freedom of speech and expression.

But some legal experts – and three justices on the Supreme Court – disagree. They warn that the decision opens the door to allow people to refuse goods and services not just based on sexual orientation, but also based on race, gender, or religious beliefs. 

Kyle Velte, who teaches at the University of Kansas School of Law and is a former president of the Colorado LGBTQ Bar Association, spoke with Colorado Matters host Ryan Warner about the history of Colorado’s anti-discrimination law and how the Supreme Court ruling in the 303 Creative case is unusual for creating an exemption to established civil rights protections.

This interview transcript has been edited for clarity and length.

Ryan Warner:  Does the Supreme Court's decision mean that LGBTQ protections from discrimination are now dismantled in Colorado? 

Kyle Velte: Not completely dismantled, but in important ways are significantly dismantled. The court did not strike down Colorado’s Anti-Discrimination Act in its entirety. Rather, it said it cannot be applied in this circumstance to this particular vendor of wedding websites. 

Warner: What is now not protected for LGBTQ people when they seek services?

Velte: Justice Neil Gorsuch expressly stated in his majority opinion that there would be some open questions after this decision in the 303 Creative case. He said, today we're just holding that a website designer engages in protected speech when she makes wedding websites for other people. 

So we know, for example, that custom websites that involve words by a website designer will be excluded from the Colorado Anti-Discrimination Act. What remains open, though, is what other kinds of expressive products or services will be covered by the court's ruling. For example, if you're a same-sex couple who hires a calligrapher to write the menu for your wedding, is that expressive speech in the same sense that the wedding website is? And if the answer to that by a court is yes, then calligraphers can turn away LGBTQ customers seeking wedding-related items. So those are the kinds of questions that are going to lead to, I think, a litany of different lawsuits while the courts try to figure out where the lines are that we're going to draw around expressive products and services. 

Warner: Does this ruling say that you have to have religious reasons to turn away a message from an LGBTQ person, or does it open it up for turning people away on other grounds? 

Velte: It's the latter. Justice Gorsuch notes that Lorie Smith’s objection to writing words about same-sex marriage was based on her faith and her belief that marriage is between one man and one woman. But the decision does not hinge on the fact that it was religiously-informed speech. Rather, it was just the fact that it was speech at all. 

So Justice Sotomayor, in her dissent, points that out, and says that this decision is not limited to faith-based kinds of speech, and it's not limited to LGBTQ customers, either. This could extend, for example — and this is drawn from Justice Sotomayor's dissent — to a situation where there is a photographer that sells headshots for professional purposes and has a belief, whether it's a traditionalist secular belief or a faith-based belief, that women should not work outside the home, is that expressive enough to say, ‘I am not going to take headshots of women?’

The same could be said for discrimination based on race. If there is a wedding cakemaker or a wedding site maker who thinks that interracial marriage between straight people is either against God's will or just has a white supremacist worldview not based in religion, both of those actors in the marketplace would, I think, under this Supreme Court decision, be able to say, ‘I simply don't want to serve opposite-sex interracial couples, and to make me do that with a website impinges on my free speech rights.’ 

It is very difficult to see where we might draw a line that says that you can only turn away LGBTQ customers. It naturally flows to race, sex, national origin, disability, and even religion, like interfaith marriages. So this might lead to an uptick in discrimination against minority religions, as well. 

Warner: The person at the center of this lawsuit, the website designer Lorie Smith, and her lawyers say this case is not about discrimination. Smith was represented by the Alliance Defending Freedom, founded by Christian community leaders. In a statement about the case, they say ‘The ruling makes clear that non-discrimination laws remain firmly in place and that the government has never needed to compel speech to ensure access to goods and services.’ What's your reaction? 

Velte: For many decades, since the beginning of anti-discrimination laws, people have attempted to get exemptions from complying with them. Over and over and over, the U.S. Supreme Court has said that when a vendor is told that they have to sell their product or serve everyone, that regulates conduct; it does not regulate speech. 

Anti-discrimination laws are content neutral: Everyone who hangs a shingle in the public marketplace gets to decide what they sell and what they write on their websites (or whatever their expressive medium is). But once they decide to make those speech statements in their goods or services, they have to sell them to everyone. 

So there's a disconnect between how the Alliance Defending Freedom and Justice Gorsuch are framing what this is about, and how Justice Sotomayor and — I would say — the law up until now frames what's going on here. The conservative majority won out, but this is a major shift in how anti-discrimination law is viewed and applied, in ways that will have consequences that I think we might not even foresee right now. 

Warner: What is the brief history of why states, including Colorado, have established anti-discrimination laws, and how they've developed to include sexual orientation and gender identity? 

Velte: They’re known as public accommodations laws. Public accommodations are things you'd see in the public square, like restaurants, hotels, barbershops, doctors and service providers like photographers or website designers. These laws started in the common law, back in the very early days of our republic, with the right to purchase goods and services. They started to be codified into statutes and the constitution after the Civil War. 

The origin of public accommodation laws is in race and in the history of slavery and Jim Crow white supremacy. In the 1960s, there were vendors who were seeking exemptions from the Civil Rights Act, who did not want to serve Black people in the South. As more groups got political power, like women in the 1970s, they started to say, ‘We want to be included in public accommodations laws. We don't want to walk up to a bar where it says, ‘men only.’’ Many states then added sex to their public accommodations laws. In the 2000s, many states added sexual orientation and then gender identity. 

The reason that we have a lot of state law around this is because the federal law, the Civil Rights Act, only applies to race and color and national origin. It doesn't even have sex in it right now. So under federal law, a woman can be turned away from a transaction in the public square simply because she's a woman. Thankfully, most states prohibit that now. And at my last count, there were about 28 states in the country that include in their public accommodations law, sexual orientation and gender identity, or some combination thereof. 

Warner: I think it's salient to mention the religious underpinnings of racism. Obviously many Christians were on the side of expanding civil rights — look no further than the Southern Christian Leadership Conference. But in anti-miscegenation laws, for instance, that were struck down in Loving vs. Virginia, people held as an article of faith their racist views, and cited Christ.

Velte: Yes, they did, and in fact, when the Civil Rights Act of 1964 was being debated in the well of the Senate and the House of Representatives, senators and representatives were taking the floor during the legislative debate to say, ‘I am for segregation, because that's what the Bible teaches.’ I think that back in the 1960s when these conversations were happening, those faith-based positions about segregation were not considered to be fringe. Of course, there were others who deeply disagreed, but it was a legitimate conversation to be having back then. 

The reason we look back at that now and say, ‘Well, that's kind of crazy,’ is because the Civil Rights Act did pass, and it has been applied without exemption since 1964. Because we haven't had those exemptions, our norms have changed, and our social contract with each other has changed to the extent that no vendor would ever actually turn away an interracial couple who is straight.

Warner: Is there any push to get sexual orientation and gender identity added to a federal anti-discrimination law? 

Velte: Yes. The Equality Act was first introduced in Congress soon after the Obergefell decision, and that was in 2015. It has made it out of the House in the past, but never out of the Senate. The Equality Act would amend portions of the Civil Rights Act of 1964, including the employment discrimination provision and the public accommodations provision. It would add  sexual orientation, gender identity and sex to the public accommodations provision. It would also add additional protections beyond public accommodation and employment, such as forbidding credit discrimination, for example, and jury service discrimination. 

Warner: What do you think is the next challenge to anti-discrimination laws? 

Velte: The biggest unanswered question now, beyond the specific scope and reach of what constitutes expressive products and services, is still the question that was presented to the court in the Masterpiece Cakeshop case, about whether one's religious exercise rights are trodden on when they have to sell a cake to a gay couple. The court still hasn't answered that question. There is a case percolating in lower courts on that very question.

Warner: Why do you think Colorado has been at the center of these national legal fights between free speech and anti-discrimination laws?

Velte: Colorado has robust anti-discrimination protections and has had them for many years with very few exemptions written into the law itself. So, when you start with a strong protection of consumers and then you have a regime like the Colorado Civil Rights Division that actually enforces, with teeth, these protections, you're ultimately going to end up with these kinds of disputes and tensions between equality for consumers and liberty and speech rights for some vendors.