The civil rights movement’s lunch counter sit-ins led to a federal law passed in 1964 prohibiting discrimination based on race in public accommodations, including the sale of goods and services by private businesses to the general public.

Today, for gay and lesbian people, there are still no federal laws prohibiting discrimination based on sexual orientation in public accommodations, but in recent years 28 states, including Massachusetts, have passed laws prohibiting discrimination based on sexual orientation and in public accommodations or interpreted existing prohibitions on sex discrimination to do so.

On June 30, 2023, the Republican majority of the U.S. Supreme Court in 303 Creative v. Elenis tore a gaping hole in these laws by creating a new First Amendment right for businesses to discriminate against people based on sexual orientation.

303 Creative is a graphic design business owned by a Colorado woman named Lorie Smith, who challenged the Colorado Anti-Discrimination Law (CADA), which prohibits any place of public accommodation from withholding services from people on account of sexual orientation. Smith alleged the law violated her First Amendment right to free speech.

Smith claimed she wanted to expand her business to include designing wedding websites, but feared that the Colorado law would require her to provide this service to same-sex couples, which she did not want to do because of her religious beliefs. She wanted to post a notice on her website saying she would not serve gay and lesbian couples seeking a wedding website.

The lower courts both ruled against Smith, but the Supreme Court ruled in her favor. The court’s conservative majority ruled that her website designs were “expressive” speech protected by the First Amendment.

While the Supreme Court’s Republican majority acknowledged the “deprivation of personal dignity that surely accompanies denials of equal access to public establishments,” they nonetheless issued a ruling allowing just such deprivations.

The court’s majority, including the five men on the court plus Amy Coney Barrett, held that the company has a right to post a notice that says, “no [wedding websites] will be sold if they will be used for gay marriages.”

Three women on the court dissented: Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson.

“Time and again, businesses and other commercial entities have claimed constitutional rights to discriminate. And time and again, this Court has courageously stood up to those claims—until today,” wrote Sotomayor. “Today, the Court shrinks.”

Justice Sotomayor explained: “The law in question targets conduct, not speech, for regulation, and the act of discrimination has never constituted protected expression under the First Amendment. Our Constitution contains no right to refuse service to a disfavored group.”

Sotomayor described how the case could lead to a photographer refusing to photograph mixed-race students on picture day based on opposition to interracial marriage, refusing to photograph women for corporate headshots because it opposes women in the workplace, or refusing to photograph immigrants’ passport photos because it opposes immigration.

“The Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class,” said Justice Sotomayor, who said the decision marks LGBTQ+ people as “second-class” citizens. “It sends the message that we live in a society with social castes.”

Discrimination in public accommodations remains legal in over 20 states that do not have laws protecting LGBTQ+ people. Those states are largely in the South and Midwest, and include 31% of the LGBTQ+ population in the United States. But now, even in states with protective laws, LGBTQ+ people can no longer count on being treated with respect.

The right-wing extremist Christian legal organization Alliance Defending Freedom (ADF) represented Smith. This is the same organization behind Dobbs v. Jackson Women’s Health Organization, which overturned the constitutional right to abortion. ADF also filed the Texas lawsuit trying to remove the abortion pill mifepristone from the market nationwide. Designated an anti-LGBTQ+ hate group by the Southern Poverty Law Center, ADF supports the recriminalization of sexual acts between consenting LGBTQ+ adults in the U.S. and criminalization abroad. In their filings before the Court, ADF alleged that a gay man requested that Smith make a wedding site for him — a claim later revealed to be false. The man named in the request says he never made it, and that he is married to a woman.

With the assistance of right-wing hate groups, the MAGA members of the Supreme Court are weaponizing the First Amendment against civil rights. In addition to allowing discrimination against gay and lesbian people, 303 Creative has created an opening wedge for discrimination against many other groups, including people of color, women and immigrants. Six unelected and unaccountable judges on the Supreme Court are gutting the rights of millions of gay and lesbian people across the nation.

Carrie N. Baker is a professor in the Program for the Study of Women and Gender at Smith College and a regular contributor to Ms. Magazine. Emmaline Kenny is a rising senior at Smith College, double majoring in the study of women and gender and studio art.

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