On December 5, the U.S. Supreme Court heard arguments in 303 Creative LLC vs. Aubrey Elenis, in which the company 303 Creative preemptively seeks the right to refuse to sell wedding websites to same-sex couples. The company argues that the Colorado law prohibiting discrimination by public accommodations does not apply to it because the law violates the First Amendment free speech rights of the company and its owner, who opposes same-sex marriages.
The precise scope of this case’s impact will depend on how the court decision is written, but its impact will not be limited to same-sex weddings, or even to the LGBTQ community.
In August, my colleagues at Rosen Bien Galvan & Grunfeld and I filed an amicus brief in the U.S. Supreme Court on behalf of former Democratic California congressmember Tony Coelho, a principal author of the Americans with Disabilities Act, and a coalition of 10 disability rights organizations. The brief, which is available online here, asks the nine justices to decide that application of Colorado’s antidiscrimination law does not violate the website designer’s First Amendment free speech right. The brief argues that endorsing the company’s proposed First Amendment defense to anti-discrimination laws would not only open the floodgates to discrimination against LGBTQ people, it would allow companies that contend they offer expressive goods and services and whose proprietors harbor ableist views — for any reason, not just religious — to refuse to serve people with disabilities. The case poses the same threat to people of color.
California has some of the nation’s strongest laws protecting the civil rights of LGBTQ people and people with disabilities. However, these laws would not, and cannot, shield Californians from the harm that would flow from a Supreme Court ruling endorsing the 303 Creative’s proposed First Amendment defense. Because the company seeks an exemption to civil rights laws based on the U.S. Constitution, adopting the company’s proposed carve out would erode civil rights protections for LGBTQ people and people with disabilities across the country, including here in California.
As both a member of the LGBTQ community and the disability community — I am both gay and blind — this case is very important to me. First, I strongly believe that I and other members of the LGBTQ community should have full and equal access to the goods and services of all public accommodations, just like everyone else, without needing to first pass business proprietors’ litmus tests. Allowing photographers, bakers, and website makers to turn away members of our community would undermine years of hard-won progress in legislatures and at the ballot box.
In addition, the implications for people with disabilities cannot be understated. Most obviously, as Justice Sonia Sotomayor and Justice Ketanji Brown Jackson’s questioning at oral argument made clear, endorsing the company’s First Amendment defense would empower some business proprietors to refuse to provide an as-of-yet undefined set of expressive goods and services for weddings involving people with disabilities or to otherwise serve people with disabilities. However, the harm could go much further than that.
Although many businesses are committed to disability inclusion, the First Amendment exception that this Supreme Court case may create would allow others to exclude people with disabilities. For example, architects could claim that wheelchair ramps interfere with their artistic message. Websites and mobile apps that now offer accessibility options for the blind, deaf, and hard of hearing could refuse to provide these legally required accommodations because they compel speech. Even movie theater owners could argue that providing something as basic as closed captions for the deaf, or audio description for the blind, impermissibly changes their message.
These are not merely theoretical possibilities. Members of the business community have already expressed an interest in using the First Amendment as a shield to block disability access requirements. Some have testified before Congress that their First Amendment free speech rights should shield them from requirements to make websites accessible to people with disabilities.
In response to a lawsuit challenging inadequate captions on CNN.com, Cable News Network argued that the First Amendment shielded it from closed captioning requirements. The Motion Picture Association of America brought a legal challenge to federal audio description regulations intended to provide the blind with access to television content.
The harm from enabling such discrimination could be significant. Like many other blind people, I use screen reading software, a computer program that translates on-screen text and controls into audio output and refreshable Braille, to use apps and browse the internet on my computer, tablet and mobile phone. A ruling in favor of the 303 Creative could embolden businesses disinterested in making their websites or mobile apps accessible to refuse to do so.
Increased web inaccessibility would make it more difficult for blind people to obtain and perform jobs, complete school assignments, pay bills, and manage their affairs. Similarly, without closed captions and audio description, people who are blind or deaf would be unable to access movies, television, live theater, and educational content.
Our courts have a long tradition of upholding our civil rights laws, including protecting people’s access to public accommodations, against similar attacks. We no longer condone discriminatory conduct, even when cloaked in the guise of free speech. The Supreme Court should uphold Colorado’s law and reaffirm that open markets should be open to all Americans, and that public accommodations are for all of the public to enjoy.
Michael Nunez is an attorney with Rosen Bien Galvan & Grunfeld in San Francisco.
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