Hypothetical Argument, Real-life Harm

Hypothetical Argument, Real-life Harm

Unitarian Universalists have worked consistently toward equality for all LGBTQIA+ people and, more recently, UUs are defending against escalating attempts to nullify civil rights advances.

Jeff Milchen
U.S. Supreme Court building - a neoclassical building with front facade, with pillars and steps
Jesse Collins/Wikimedia Commons


Despite overwhelming public support for ensuring that businesses are open to all, Unitarian Universalists and other justice advocates must actively defend against plots to undermine public accommodations laws. One pending attack will be decided by the U.S. Supreme Court within weeks. 303 Creative LLC v. Elenis is a case brought on behalf of a Colorado web designer by the Alliance Defending Freedom (ADF), a right-wing advocacy group pushing to strip rights from LGBTQIA+ people and even criminalize consensual sexual activity.

Some history: the 1964 Civil Rights Act forbade businesses from denying service to people based on their race, color, religion, or national origin, and provides an essential safeguard against those forms of discrimination. Yet the act neglected many other forms of discrimination, provoking citizen organizing to close those gaps. In dozens of states and localities, residents have succeeded in driving the passage of laws ensuring access to services by people of all genders, sexual preferences, levels of physical ability,and more.

In Colorado, ADF’s client is web designer Lorie Smith, who claims that her Christian religious beliefs motivated her to post a notice on her website proclaiming she will not create wedding websites for same-sex couples. In 2016, ADF challenged Colorado’s Anti-Discrimination Act (CADA) in federal court to preempt the Colorado Civil Rights Division from enforcing the law (its director, Aubrey Elenis, is the named defendant). Though 303 Creative has never built a wedding website, nor has anyone requested one of the company, the lawsuit claims CADA violates Smith’s right to reject a client for services requested in the future.

The Civil Rights Act of 1965 offered no protection against discrimination based on factors such as age, sexual preference, gender identity, or level of physical ability. It took another twenty-six years before the Americans With Disabilities Act corrected just one of those glaring omissions at the federal level.

The federal trial court in Colorado and an appeals court both rejected the argument that CADA infringed upon the plaintiff’s free speech rights. But the highest court in the land seized the chance to hear a case crafted by the ADF specifically to invite justices to dismantle an essential civil rights protection of the LGBTQIA+ community. The resulting oral argument at the high court last December was dominated by hypothetical arguments and virtually no factual record.

Unitarian Universalists have worked consistently toward equality for all LGBTQIA+ people and, more recently, UUs are defending against escalating attempts to nullify civil rights advances. A 2021 Action of Immediate Witness supported human rights and dignity for the LGBTQIA+ community, including defense of public accommodations laws. Allowing a professed religious belief to justify discrimination would not only harm the LGBTQIA+ community but endanger hard-won civil rights of people with disabilities, BIPOC people, and others.

For instance, in a similar lawsuit against CADA for its protection of the rights of LGBTQIA+ people (Masterpiece Cakeshop v. Colorado Civil Rights Commission) just five years ago, several disability rights groups united to file an amicus brief to the Supreme Court warning, “many faiths have at least some citable, scriptural basis for shunning people with disabilities.” And as Justice Ketanji Brown Jackson referenced during oral argument in 303 Creative, people seeking to ban interracial couples or otherwise discriminate based on race often invoke religious belief to justify their bigotry.

Like most small business owners, Lorie Smith avails herself of a bundle of government-created privileges by doing business as a limited liability corporation (LLC). Those privileges include tax advantages and immunity from losing personal assets in civil lawsuits. So Smith shamelessly takes benefits from the state of Colorado while rejecting the minimal responsibility of being open to all customers without discriminating.

Should SCOTUS undermine public accommodations laws, we should prepare to push laws in our respective states that make enjoying the benefits of incorporation dependent on voluntary compliance with all non-discrimination laws.

While a couple seeking a web designer has many options, many people living in or visiting rural areas rely on a single provider for essential goods and services. A Supreme Court ruling that weakens public accommodations laws would weaponize the First Amendment and empower bigots to revive hateful practices that those laws made rare, such as motel managers refusing shelter to an interracial couple and doctors refusing care to a child of a same-sex couple. All that bigots would need to legalize otherwise illicit discrimination is to claim that a religious belief underlies their hate, as white enslavers did for generations.

Rev. Ashley Horan, Organizing Strategy director with the UUA’s Side With Love campaign, believes the ADF lawsuit and other attempts to claim faith as a justification for bigotry warp the concept of religious freedom. “The radical right is trying to engineer the reversal of decades of progressive civil rights wins,” says Horan. “Sadly, given the ill-gotten dominance of a reactionary supermajority, this strategy may succeed, harming already-targeted communities.”

Recognizing that the regressive Supreme Court majority is likely to issue a ruling that weakens public accommodations laws, Horan issued a call to action for UUs: “We must be prepared as people of faith to create alternative systems of safety, protection, and access for one another when the law—and those who wield its power—come for our people.”

The Unitarian Universalist Association’s UPLIFT Action campaign is a great venue to find tools to facilitate action and connect with others to defend and advance civil rights.

UUA Justice Communications Associate Jeff Milchen welcomes your comments or questions. Tweet  @JMilchen. He covered the Masterpiece Cakeshop v Coloradocase in his previous work directing the American Independent Business Alliance and led its Business Against Bigotrycampaign in 2014.

For more perspectives on this case and links to all briefs, see the SCOTUS Blog.