WASHINGTON — The American Civil Liberties Union and the American Civil Liberties Union of Colorado filed an amicus brief with the U.S. Supreme Court today urging the court to reject a First Amendment challenge to a Colorado civil rights law requiring businesses open to the public to treat customers equally. In 303 Creative, Inc. v. Elenis, the court is asked whether an artist who has chosen to open a business to the public at large can constitutionally be prohibited from discriminating against customers on the basis of a protected characteristic — such as race, age, religion, sexual orientation, or gender identity. The case is a replay of a dispute involving Masterpiece Cakeshop from 2018, in which the ACLU represented a same-sex couple refused service by a bakery.
303 Creative, Inc. v. Elenis concerns a Colorado website designer that seeks to provide wedding website design services to the public while turning away same-sex couples. Such conduct violates the Colorado Anti-Discrimination Act (CADA). The website design company says it has a First Amendment right not to comply with the law because its service is “expressive,” “artistic,” and “customized.”
“Colorado’s nondiscrimination law follows in a long line of state and federal laws aimed at ensuring equal access to the public marketplace,” said Mark Silverstein, legal director of the ACLU of Colorado. “When 303 Creative chooses to offer its services to the general public, it cannot evade the nondiscrimination law on the grounds that its service is ‘artistic’ or ‘expressive.’”
“There is no First Amendment right to discriminate,” said David Cole, national legal director of the ACLU. “If there were, bookstores could put up signs saying ‘We Don’t Serve Women,’ portrait photography studios that take student portraits could refuse to take pictures of Asian students, and bakeries could refuse to sell a birthday cake to a Black family. Businesses have asserted First Amendment defenses to such laws since the civil rights era, and the Supreme Court has never recognized a First Amendment right to discriminate. It should not start now.”
In their brief, the ACLU and the ACLU of Colorado argue:
- Colorado’s anti-discrimination law does not regulate artists as such, but rather businesses that choose to sell to the public.
- Colorado’s anti-discrimination law is a content-neutral regulation directed at commercial sales conduct and satisfies intermediate scrutiny.
- Under Colorado’s law, artists are free to choose whether to sell their products or services to the public, and businesses that do serve the public are entirely free to choose what goods or services they provide. The law merely requires businesses open to the public not to deny service to some based on their identity.
- Granting businesses that choose to sell to the public a free speech right to discriminate if their product is expressive would either swallow the rule against discrimination or require judges to make impossible assessments about whether a good or service is sufficiently expressive to have a right to discriminate.
303 Creative, Inc. v. Elenis is a part of the ACLU's Joan and Irwin Jacobs Supreme Court Docket.
The ACLU’s amicus brief is available here