Today, the Supreme Court heard argument in 303 Creative LLC vs. Aubrey Elenis, in which 303 Creative refused an LGBTQ+ couple’s request that the Company design a website for their wedding. 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.
In August 2022, RBGG filed an amicus brief in the U.S. Supreme Court on behalf of former U.S. Representative Tony Coelho, a principal author of the ADA, and a coalition of ten disability rights organizations. The brief, which is available here, asks the U.S. Supreme Court to decide that Colorado’s Antidiscrimination law does not violate the First Amendment right to free speech of a website designer who refused to design a wedding website because she disapproves of same sex marriages.
As argued in the amicus brief, the First Amendment’s Free Speech Clause protects discriminatory speech, but it should not protect discriminatory conduct. Today, that is exactly what a website design company has asked the Supreme Court to do – give the company the right to deny some customers equal service because of their sexual orientation.
People with disabilities are all-too familiar with discrimination and the unnecessary challenge of accessing services. The Americans with Disabilities Act was passed to end such discrimination including in public accommodations. The exception to our civil rights laws proposed by the Company in the Supreme Court today would weaken the ADA and have terrible consequences for people with disabilities. Exemptions based on “custom” or “expressive” services, like the ones proposed by 303 Creative, would create a patchwork of standards that would undermine the ADA’s clear antidiscrimination mandate. Although many businesses are committed to disability inclusion, exceptions would allow others to exclude people with disabilities and deny their right to full participation in the market.
For example, architects could claim that wheelchair ramps interfere with their artistic message. Websites 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 theaters could argue that providing something as basic asaudio description changes their message.
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 beopen to all Americans, and that public accommodations are for all of the public to enjoy.
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Sanford Jay Rosen
Rosen Bien Galvan & Grunfeld