FAQ: Washington and the 303 Creative v. Elenis Case

A photo of the supreme court of the United States by Photo by Ian Hutchinson from Unsplash
In June 2023, the U.S. Supreme Court ruled in favor of a Colorado graphic design company that wanted to create wedding websites as a business, but not for same-sex couples. The ruling in 303 Creative, Inc. v. Elenis has implications for civil rights law throughout the nation, as it held for the first time that a business open to the public can legally discriminate in some instances under the First Amendment. While it will take some time to determine exactly how this decision will impact Washington State, we offer some preliminary guidance below.

What is the case about?

In 303 Creative, Inc. v. Elenis, a graphic design company in Colorado sought to offer custom wedding websites as a business, but not provide those services for same-sex couples, which would violate the Colorado Anti-Discrimination Act’s prohibition on discrimination based on sexual orientation. The key question in the case was whether a business could raise a First Amendment free speech defense to state anti-discrimination law, which requires businesses that are open to the public to serve customers equally and prohibits discrimination based on characteristics such as race, religion, sexual orientation, or gender identity. The graphic design company argued that because its services are “expressive,” “artistic,” and “customized,” it could not be forced to comply with the law.

The American Civil Liberties Union and the ACLU of Colorado filed an amicus brief in 2022 urging the Supreme Court to reject this defense, arguing there is no First Amendment right to discriminate. The organizations argued that, under Colorado law, artists are free to determine which products to create and sell. But when acting as a business that serves the public, these businesses must comply with the law and cannot refuse service to someone because of their identity.

Ultimately, the Supreme Court sided with 303 Creative, ruling the business had a First Amendment free speech defense to state law. (Although the business also initially asserted a religious liberty claim, the Court addressed only the free speech claim.)

What are the implications of the decision?
While the Supreme Court’s ruling weakens civil rights law, it is in some important ways a narrow decision.  The holding is that businesses that provide customized expressive services can raise a First Amendment defense.
How that will be applied in real cases is not clear, however. The ruling leaves interpretation open for judges who will now have to decide if a business’s services are sufficiently expressive, artistic, and customized to qualify for this defense.

The overwhelming majority of businesses, however, would have no claim under 303 Creative because they are not creating “expressive designs speaking messages,” nor are they providing original and customized services. The Supreme Court confirmed that “there are no doubt innumerable goods and services that no one could argue implicate the First Amendment.”

The decision is also only about businesses selling products or services to the public (“public accommodations”). It should not impact state laws protecting people from discrimination in employment, housing or other areas.

How will this decision apply in Washington state?

Washington State has had laws protecting people from discrimination based on sexual orientation since 2006. While it’s not yet entirely clear what implications this decision will have on nondiscrimination protections nationwide, we know that the vast majority of businesses do not offer original, custom expressive services, and remain obligated to follow the Washington Law Against Discrimination (WLAD).

However, it’s possible the ruling could lead to similar First Amendment challenges to our anti-discrimination laws. The 303 Creative decision may be an issue if a business sells custom expressive messages, and works with the customer to create an end product that expresses the provider’s ideas. Some businesses may provide expressive “pure speech” on terms similar enough to 303 Creative that they are allowed to discriminate. Such businesses could then proclaim their legal permission to discriminate. But that is simply not how most businesses operate. Most products are not expressive of the provider’s or creator’s own message even if making them involved some creativity.

And, as noted, the decision does not impact existing WLAD protections from discrimination in other contexts like employment, housing or credit.

What is the Washington Law Against Discrimination (WLAD)?

The Washington Law Against Discrimination (WLAD) prohibits discrimination based on characteristics such as race, nationality, sexual orientation, or gender identity. The law applies to employment as well as places of public resort, accommodation, or amusement. It also applies to real estate and credit and insurance transactions.

How does the WLAD protect against discrimination, and who does it cover?

The Washington State Human Rights Commission, established in 1949, enforces the WLAD. The commission investigates complaints of discrimination allegations in employment, public accommodation, housing and real estate, and credit and insurance, and helps in providing remedies.

Recently, the commission investigated and resolved an ACLU case involving a nonbinary flight attendant. Justin Wetherell, a flight attendant for Alaska Airlines, was forced to wear a uniform inconsistent with their gender identity. The commission determined the airline’s dress code was discriminatory, and the airline entered a consent decree to change it.

What actions should Washington residents take if they are discriminated against?

LGBTQIA2S+ people in Washington still have robust protections under the WLAD. The state’s Human Rights Commission is tasked with investigating discrimination claims. The ruling in 303 Creative does not change the ability of Washingtonians who feel they’ve been discriminated against to file complaints with the commission to investigate these claims and seek remedy.

Additionally, the ACLU of Washington will continue to defend the WLAD and other anti-discrimination laws. If you experience discrimination based on your sexual orientation or gender identity, please contact us at intake.aclu-wa.org.
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