303 Creative LLC v. Elenis is Incredibly Problematic

Before I get into this, let me start with this preface: I am not a legal expert by any means. I never even watched Law & Order. That said, I am keenly interested in the law and how it relates to bias and discrimination, particularly if that intersects with technology, especially the web.

Which brings me to the subject at hand: 303 Creative LLC v. Elenis. I tweeted about this case, which is currently before the Supreme Court of the United States, the other day, but felt like I owed it a lengthier—and perhaps more enduring—discussion. So here goes…

# The case, in a nutshell

Lorie Smith, a web designer operating as 303 Creative LLC, is interested in getting into the wedding announcement website game. She does not believe same-sex couples should be able to marry, so she wanted to put a notice on her website to that effect, stating that she would not create wedding announcements for same-sex weddings. This violates Colorado’s anti-discrimination law (some of you may recall it from Masterpiece Cakeshop v. Colorado Civil Rights Commission) which prevents public businesses from discriminating against gay people, who are a “protected class” in legal speak.

Smith contests that her web design work is her “expression” as an “artist” and that the First Amendment protects her right to that expression. What a lot of the coverage fails to include, however, is

1. She does not currently offer wedding announcement website services, and
2. No same-sex couples have requested her services in creating a wedding announcement website.

In other words, this case is not based on fact, but rather on hypotheticals. Additionally, there has been no injury on either side, just the potential for one. Anyway, if you’re interested in learning more about the case, you can check out the following:

• 303 Creative LLC v Elenis on Wikipedia
• Court Docket at the Supreme Court
• Oral Arguments before the Supreme Court
• Strict Scrutiny podcast episode following oral arguments
• Boom! Lawyered podcast episode following oral arguments

In particular, I highly recommend listening to Justices Ketanji Brown Jackson’s and Sonia Sotomayor’s contributions during oral arguments as they really cut through the bullshit and get to the heart of the case and its implications.

# Fact: Design ≠ Art

This is something I talked about way back in my 2013 talk “Designing With Empathy”: Design is not art. Art is self-expression and serves the artist; design serves someone else (typically the client or their audience). If you don’t work in the industry, however, this distinction isn’t always clear. To quote Jeff Veen:

I’ve been amazed at how often those outside the discipline of design assume that what designers do is decoration. Good design is problem solving.

Design is not the creation of pretty pictures and decoration. Design serves a purpose. In fact, the term “design” originated in Medieval Latin as designare which meant “to mark out” (hence the related term designate). To design is “to devise for a specific function or end.” To practice “web design” is to use the tools of graphic design to achieve the purpose of the project.

In the context 303 Creative LLC seeks to operate, the purpose of each project would be to announce and provide the details about a wedding. 303 Creative LLC seeks to provide these services in exchange for money, at the behest of a client. It is not artistic expression any way you slice it.

# Fact: This Case is About Advertising Bigotry

If you’ve run any sort of service business, you’ve likely come across clients and projects you had to turn away. Sometimes you don’t have the bandwidth to take on the project. Other times you may not be interested in the kind of work it entails. Still others, you might not have the right expertise to do the project justice. And sometimes you just get a sense that the potential client is not someone you’d work well with (perhaps based on the tone of their inquiry). Regardless of the reason, however, you can gently explain to them that you cannot do the project for them and either leave it at that or recommend someone who might be able to help them.

In the case of 303 Creative LLC, Smith could have easily used this approach to turn away same-sex couples without making it a thing. She could even have a form email prepared for this very purpose! And unless several couples approached her at roughly the same time and got wildly different responses with respect to her ability to create them a wedding website—which, to reiterate, is not a service she currently offers—no one would be any the wiser when it came to her belief that same-sex marriage doesn’t (or shouldn’t) exist.

But no, that’s not the route that Ms. Smith and 303 Creative LLC seeks to go. Instead, she would like to be able to express her “firmly held religious belief” that same-sex marriages should not happen and to put a notice on her website explicitly saying she refuses to create a website for a same-sex wedding. She wants to put her bigotry on full display and she doesn’t think she should suffer any legal consequences for doing so.

# Clarification: Who qualifies as “Protected”?

Over on Mastodon, I was asked to clarify whether the law allows you to refuse to work for a particular individual or corporation. For example, could a web designer refuse to do work for Chick-fil-a on account of their anti-LGBTQIA+ positions (a stance which I think they’ve reversed, but I don’t eat there so I’m not sure). A similar question was asked in Oral Arguments, framed as a speech writer’s ability to refuse to write a speech for a political candidate they disagree with. Public accommodations law, which is what is being considered in this case, would not require you to work on any project for anyone as long as the reason you are refusing your service is not on account of their membership in a protected class.

Corporations are not a protected class. Neither are politicians. Same-sex couples are protected from discrimination under both the Equal Pay Act of 1963 and the Civil Rights Act of 1964.

# Potential Fallout

If the conservative majority on the Court decides to ignore all of the facts in this case an rule in favor of 303 Creative LLC, that decision will open the floodgates for discrimination against people based on their protected status by anyone who claims to have a religious objection to treating that person respectfully.

For example, people with disabilities are a protected class under the Americans with Disabilities Act. If this ruling goes in 303 Creative LLC’s favor, a business owner could claim eugenics as a “firmly held religious view” and refuse to provide accommodations for them. From the web side of things, that could mean they could intentionally make their site inaccessible to people who use screen readers. In the physical world, it could mean they could make entry to their business impossible for anyone using a wheelchair.

It might take a little time, but we’d likely end up in another “Jim Crow”-like era where restaurants are once again free to adorn their windows with “Whites Only” signs. Where the grocery store hangs a “Christians Only” sign on its door. Where the local bank proudly announces that only “Heterosexual Evangelical Christian Women” can apply for an open teller position. Where only women under 25 can date Leonardo DiCaprio… wait.

Instead of embracing our differences as a complement to one another and for the betterment of our society, condoning this would further drive us apart and foster a world of exclusion. People could use their religion to mask their bigotry and claim exemption from having to provide equal access to people based on their disabilities, gender (or gender expression), sexual orientation, racial characteristics, religion, age, or any other protected category. That’s not a world I want to live in nor is it a future I want for my kid.

If it comes to pass, I suppose the one silver lining is that we’ll learn what companies deserve our business, but that hardly outweighs the potential harms for people who need access to food, clothing, shelter, information, and other necessities for existence both online and off that are supposed to be guaranteed by anti-discrimination laws.

It’s all in the Supreme Court’s hands at this point, but I am more than a little concerned with what this could mean for the future here in the United States.