CHICAGO, Aug. 19, 2022 — The American Bar Association filed an amicus brief today, asking the U.S. Supreme Court to affirm lower court decisions that private businesses cannot rely on the First Amendment to claim a right to be exempt from state public-accommodation laws barring discrimination against would-be customers based on their sexual orientation.
The case involves a Colorado marketing and graphics firm, which contends that a public-accommodation law compelling it and its employees to provide service to gay clients violates the free speech clause of the First Amendment. Both the federal district court and the U.S. Court of Appeals for the 10th Circuit ruled against the marketing firm, citing a long line of statutes and Supreme Court cases dating to the 1964 Civil Rights Act.
The case addresses free speech questions left unresolved by the Supreme Court’s 2018 decision in the Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, in which the court ruled on narrow grounds that the Colorado agency did not employ religious neutrality in its handling of the case, violating the owner’s rights.
In the current case, the ABA brief outlines numerous ABA policies against discrimination based on sexual orientation adopted since 1973, when the ABA House of Delegates enacted a policy urging the repeal of laws criminalizing private sexual relations between consenting adults. It also traces a half century of Supreme Court decisions rejecting challenges to public-accommodation laws on the basis of personal beliefs that conflict with those laws.
The brief, for instance, cites the high court’s Heart of Atlanta Motel decision in 1964 that required private businesses to abide by the Civil Rights Act of 1964, and notes that the court in the past rejected opposition to the act based on religious rights and freedom of association grounds.
The ABA brief also notes that the Supreme Court’s decision in Masterpiece “warned that if exemptions from public-accommodations laws ‘were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services and public accommodations.’”
“If commercial entities may assert a First Amendment right to discriminate among classes of customers, then there is no reason that commercial entities should not be able to assert a concomitant right to discriminate among classes of potential employees,” the ABA brief says. “To accept petitioners’ novel theories would vitiate antidiscrimination laws and would have profoundly destabilizing consequences. This court should not take that step.”
The U.S. Supreme Court will hear the case in its new term that begins Oct. 3, but oral arguments have not been set. The ABA brief in 303 Creative LLC v. Elenis can be found here. The law firm of Munger, Tolles & Olson LLP filed the brief pro bono on behalf of the ABA.
The ABA is the largest voluntary association of lawyers in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.