(Al Drago/Getty Images).
The U.S. Supreme Court’s recent ruling that freedom of expression trumps a state law barring discrimination on the basis of sexual orientation or gender identity highlights the need to redouble efforts to pass anti-discrimination protections for LGBTQ+ people in Pennsylvania, advocates said.
The decision, saying that a graphic designer could refuse to make websites for same-sex weddings without facing sanctions under Colorado’s anti-discrimination law, is narrowly focused on the First Amendment rights of business owners.
For that reason, it is unlikely to have extensive or immediate impacts on existing or future anti-discrimination laws, legal experts said.
“At the moment, just on the face of that case it does not create broad exemptions from non-discrimination laws,” Mary Catherine Roper, a civil rights attorney at Langer Grogan & Diver in Philadelphia, said.
But the majority opinion, written by Justice Neil Gorsuch, doesn’t define what could be considered a “creative and expressive” service that falls under the First Amendment protection of free expression. That is likely to invite more challenges to anti-discrimination laws, Roper said.
“If I want you to cater my marriage to another woman, it doesn’t necessarily get you out of that,” Roper said. “But people are going to try.”
In its 6-3 ruling handed down on June 30, the court found that Colorado could not compel the owner of a graphic design business, 303 Creative, to make a website for a man who she said contacted her seeking design work for his and his male partner’s upcoming wedding.
The designer argued that because her work was “expressive,” “artistic,” and “customized,” it was protected by the First Amendment and the state could not require her to provide services for a wedding she ideologically opposed.
“States may ‘protect gay persons, just as [they] can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public. And there are no doubt innumerable goods and services that no one could argue implicate the First Amendment,’” Gorsuch wrote, quoting the court’s decision in an earlier challenge to Colorado’s anti-discrimination law.
“At the same time, this Court has also long recognized that no public accommodations law is immune from the demands of the Constitution. In particular, this Court has held, public accommodations statutes can sweep too broadly when deployed to compel speech,” Gorsuch wrote.
In her dissenting opinion, Justice Sonia Sotomayor called the majority’s ruling “profoundly wrong.”
“Today, 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,” Sotomayor wrote.
In Harrisburg, members of the LGBTQ+ Equality Caucus swiftly denounced the court’s decision, calling it a “threat to the freedoms of LGBTQ+ individuals.”
“Whether it’s a bakery or a media production company, no business should possess the right to refuse services to individuals based on sexual identity,” the caucus said in a statement. “Simultaneously, requiring a business that serves the public to offer services equally to members of the public does not violate their first amendment rights.”
In May, state lawmakers such as state Rep. Malcolm Kenyatta, D-Philadelphia, celebrated the House’s passage of House Bill 300, a statewide LGBTQ+ anti-discrimination bill known as “The Fairness Act.”
The legislation would explicitly extend the protections of the Pennsylvania Human Relations Act to prohibit discrimination in housing, employment and public accommodations on the basis of sexual orientation or gender identity or expression.
It passed with a bipartisan 102-98 vote more than 20 years after the legislation was first introduced. The bill was referred to the Senate State Government Committee in early May but has yet to see a vote.
In an emotional news conference, Kenyatta expressed gratitude for the work of colleagues who shepherded the bill through the legislative process, and for the support of lawmakers, including two Republicans who broke from their party.
“They too believe that Pennsylvania should be a fair place, no matter who you love, or who you are, they shouldn’t be fired from your job, that you shouldn’t have to be kicked out of public accommodations, and you shouldn’t lose your housing. That is what we did today,” Kenyatta said.
'The passage of this act of the House is yet another step to ensuring that every Pennsylvanian is treated with dignity and respect,' @RepBenham, D-Allegheny, said.
— Pennsylvania Capital-Star (@PennCapitalStar) May 3, 2023
About two months later, at a press conference in the state Capitol following the court’s decision, Kenyatta’s tone was noticeably somber.
“There are a lot of folks who have never had to wait around to see if the Supreme Court is going to allow you to keep basic fundamental rights and I’m happy that you’ve never had that experience,” Kenyatta, who co-sponsored The Fairness Act, said.
“My heart breaks today, in part, for our kids,” Kenyatta said through tears. “So many people don’t know what it means to grow up and to be told every day that there is something wrong with you, to be told every day that if you choose to live openly, as you are, you are going to walk into a buzzsaw every single day.”
For several years, the Pennsylvania Human Relations Commission has recognized protections from discrimination on the basis of gender identity or sexual orientation under the state’s Human Relations Act. That stems from the U.S. Supreme Court’s 2020 decision in which it interpreted protections from discrimination on the basis of sex to include discrimination against LGBTQ+ people.
Seventy Pennsylvania municipalities have adopted ordinances that explicitly prohibit discrimination on the basis of sexual orientation or gender identity. The laws bar discrimination in housing, employment and places of public accommodation that include any business that is open to the public.
“That doesn’t mean we don’t need the fairness act because interpretations change,” Roper said.
Martin Cunningham, assistant chief counsel to the Human Relations Commission, said the agency has not issued guidance with regard to the 303 Creative decision. The commissioners and staff will watch any cases that invoke the Supreme Court’s holding, but because the decision was so fact-specific it would require the commission to hypothetically decide on a question that is not before it, Cunningham said.
Mark Aronchick, who was part of the legal team that won a challenge to Pennsylvania’s same-sex marriage ban in 2014, said the 303 Creative ruling should serve as a wake-up call for human relations lawyers and commissioners around the country.
Colorado’s agency responsible for enforcing the state’s anti-discrimination law did not vigorously litigate the graphic designer’s claim underlying the Supreme Court decision, Aronchick said, noting the agency did not challenge a number of facts asserted by the designer.
“I envision much more vigorous and precise defenses than what I think Colorado put up in connection with this case,” he said.
The decision makes it possible for businesses that want to discriminate against protected individuals to claim they cannot be forced to produce something that is not within their creative sensibilities, Aronchick said.
That could be stretched to include any number of creative services, such as photography or landscaping, Vic Walczak, legal director for the ACLU of Pennsylvania, said.
“I think one thing is pretty clear that this is going to unleash a lot more litigation to see just how far this exception to anti-discrimination laws goes,” Walczak said.
The first round of attempts to expand the exception will present an important opportunity for defenders of anti-discrimination laws to significantly narrow the impact of 303 Creative, Aronchick said.
“What I’m hoping to see is that when these challenges come up — the first wave of them — is that the people who run the Human Relations Commissions and the lawyers make the objectors really prove their point,” he said.
Ryan Matthews, Pennsylvania director for the Human Rights Campaign, said meetings between LGBTQ+ rights advocates and state senators give him hope that the Fairness Act will pass during this legislative session.
“When they are telling their senators, Republican or Democrats, about their lived experiences and the discrimination they face in their daily lives they recognize the need to do something,” Matthews said.
Passing the fairness act would send the message that LGBTQ+ people are a “full and enabled” part of the community and serves as a response to the movements targeting LGBTQ+ people, Walczak said.
“That could be pared back when and if 303 Creative expands, but it doesn’t diminish the importance of passing it now,” Walczak said.
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