This Supreme Court LGBTQ+ Rights Case Could Lead Us Back To Jim Crow


Zack Ford


LGBTQ+ Americans

Segregated movie theater for African Americans in Leland, Mississippi, Nov. 1939. CREDIT: Shutterstock/Everett Collection

“No Blacks Allowed.” 

Signs like this have been illegal for decades for an obvious reason: They are discriminatory and thus violate our laws prohibiting discrimination on the basis of race and other protected categories. The sign itself might be speech, but displaying it has the same effect as if a Black person entered the business and was denied service. These kinds of signs might soon be allowed again, however, if the Supreme Court decides to let a Colorado website designer advertise her intent to refuse service to same-sex couples. 

Lorie Smith, owner of 303 Creative LLC, is a website designer based in Colorado. Currently, she does not design websites for weddings, but she wants to expand her business to do so. However, she only wants to create wedding websites for different-sex couples, opposing same-sex marriage because of her religious beliefs. She knows that Colorado law prohibits such discrimination, and she believes that law should be overturned — or at least carved out — to allow the discrimination she wants to practice against same-sex customers. If her argument prevails, it will inevitably deteriorate the protections for all groups covered by the law, not just same-sex couples. 

It’s important to note that Smith has not yet taken a discriminatory act that she is defending from accountability. Instead, 303 Creative LLC v. Elenis is a case that was constructed and brought by the Alliance Defending Freedom (ADF) — an organization the Southern Poverty Law Center identifies as an anti-LGBTQ+ hate group — specifically to challenge Colorado’s protections. ADF has filed a myriad of “pre-enforcement” cases like this, working with business owners who want to discriminate in order to weaken (if not overturn) nondiscrimination laws. For example, they manufactured similar attacks on LGBTQ+ protections in Minnesota with a wedding video production company and in Arizona with a calligraphy company. In both cases, like 303 Creative, the business owners wanted to profit off selling a wedding-related service but only to different-sex couples in violation of local laws. 

The inherent argument in all these cases is that because the product is an “expressive” work (a custom website, video, invitation, etc.), then it should be considered speech. If the law requires the artist to create that speech to “celebrate” a wedding they oppose, then it’s compelled speech, they argue, that violates their right to free speech and thus the law is unconstitutional. 

Smith (like ADF’s other clients) also wants to publish her equivalent of a “No Blacks Allowed” sign on her own website — a statement ADF helped her craft for the purposes of this case.  It would read as follows: 

These same religious convictions that motivate me also prevent me from creating websites promoting and celebrating ideas or messages that violate my beliefs. So I will not be able to create websites for same-sex marriages or any other marriage that is not between one man and one woman. Doing that would compromise my Christian witness and tell a story about marriage that contradicts God’s true story of marriage — the very story He is calling me to promote. 

ADF and Smith contend that the law’s prohibition on such statements also violates Smith’s free speech rights. 

There’s a question that undermines ADF’s entire argument — and that speaks to why this case is so dangerous: Why wouldn’t the same reasoning protect a wedding vendor who wants to refuse service to interracial couples? Or interfaith couples? It’s easy to see how quickly nondiscrimination protections for all vulnerable groups could quickly deteriorate if everyone who wanted to refuse service were permitted to do so on speech grounds. 

This is a question ADF has faced before, and their answer was alarming. In 2016, ADF attorney Kristen Waggoner, who is now president and CEO of the organization and also arguing the 303 Creative case, was defending a florist who had refused service to a same-sex couple before the Washington Supreme Court. The Court asked why the anti-gay discrimination she was advocating for was any different than the racial discrimination of Jim Crow (1:03:35 in the clip below). Waggoner’s response was essentially that society doesn’t tolerate white supremacy, but it does tolerate objections to same-sex marriage.

This subjective interpretation, one that weighs the societal “tolerability” of certain kinds of discrimination, cannot be the basis for laws that protect our rights. Indeed, the Washington Supreme Court did not agree with Waggoner’s argument. Colorado’s law likewise lists “race” right alongside “sexual orientation” as protected classes with no distinction between how much protection each class receives. There can be no meaningful way of carving out an exception to allow anti-gay discrimination without allowing all of the other forms of discrimination as well. 

Nevertheless, there’s reason to worry that this Supreme Court’s conservative supermajority plans to take such an approach. This is the third case in five years in which the Court has considered challenges to LGBTQ+ protections. In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, a Colorado baker — also represented by ADF — was challenging the same Colorado nondiscrimination law, arguing he should not be punished for refusing to sell a wedding cake to a same-sex couple. The Court punted in 2018, concluding that his case had not fairly been considered and essentially granting a one-time get-out-of-jail-free card. That baker, Jack Phillips, is still facing another violation of anti-LGBTQ+ discrimination that is still working its way through the courts. 

Then, in Fulton v. City of Philadelphia, Catholic Social Services argued that it should be permitted to violate Philadelphia’s LGBTQ+ protections and refuse foster case service to same-sex families.  The agency won in 2021, but again the Supreme Court based its unanimous ruling on a technicality regarding how Philadelphia enforced its law. Philadelphia ultimately agreed to pay a $2 million dollar settlement, ending further proceedings in the case. Fulton, like Masterpiece Cakeshop, did not directly implicate the nondiscrimination laws in question. 

If the Court’s conservatives want to carve out a form of anti-gay discrimination, 303 Creative doesn’t allow for the same kinds of punts. Smith wants to violate Colorado’s law, but she hasn’t yet, so there has been no enforcement in which the Court could look for technicalities. Moreover, in Dobbs (the Court’s recent decision overturning Roe v. Wade) Justice Clarence Thomas even indicated his enthusiasm for overturning other civil rights precedents like Obergefell, the Court’s 2015 marriage equality decision. This emboldened Court may be ready to not only open the door to anti-gay discrimination, but all other kinds as well, making this one of the most alarming cases the Court is hearing this term. 

Indeed, if conservative extremists have their way, their decision could mean we haven’t seen the last of “No Blacks Allowed” signs in this country. We cannot go back to that era of blatant, wanton discrimination. We must draw a clear line and establish that discrimination is discrimination and we do not tolerate it. That is the choice the Court faces in this case. 

Oral arguments in 303 Creative are scheduled for December 5 and audio will be livestreamed on the Court’s website.

Zack Ford is the Press Secretary at Alliance for Justice.