303 Creative Channels LGBTQ Rights Debate to Health and Education

The US Supreme Court decides cases, but rarely settles debates. Its ruling in 303 Creative v. Elenis is no exception. The decision ostensibly resolves a long-raging battle that has pitted Christian business owners against public accommodation laws. In resolving one question, the court opened the door to many more.

Siding with the business owner, the court ruled that the First Amendment protects a Christian graphic designer who refuses to sell wedding websites to gay and lesbian couples.

Requiring her to follow Colorado’s public accommodation law would “force [her] to speak in ways that align with its views but defy her conscience about a matter of major significance,” according to the court.

Its opinion offers no limiting principle that defines an “expressive” business and curbs the metastasis of bigotry in the public marketplace. And by destabilizing the long-settled rules of civil rights law, 303 Creative could disrupt more than the equal access to the public marketplace.

The court’s capacious language on “conscience”—along with its blurring of the First Amendment distinction between speech and conduct—gives powerful ammunition to groups fighting to erode other protections for LGBTQ people. Start with public health.

In recent years, Christian doctors, nurses, pharmacists, and other medical professionals have flooded state and federal courts with lawsuits alleging they have a free speech right to deny certain types of health care to gay and transgender people, as well as to women seeking contraception and abortion.

303 Creative supercharges these once-fringe arguments. In Michigan, for example, a physician assistant is currently suing a state hospital that fired her after she refused to refer transgender patients for gender-affirming care. The physician assistant—a devout Christian—argues the hospital’s insistence that she abide by medical standards of care “compel[s]” her to speak “against her sincerely held religious convictions and her medical conscience.”

Like the Christian graphic designer in 303 Creative, the physician assistant doesn’t categorically refuse to serve LGBTQ people. She says she will serve transgender people in some ways—just not if doing so conflicts with her amorphously-defined conscience. If they need help with a “respiratory issue,” her complaint states, she will treat them.

This is the exact playbook used by the Christian graphic designer, who said she would make a website for a person “who identifies as gay” if their request “align[ed] with her beliefs.” Before 303 Creative, the physician assistant’s claims would be easy to dismiss. Her refusal to refer for medically necessary treatment would be professional conduct subject to employer regulation, not speech protected by the First Amendment.

After 303 Creative, her claims are more cognizable. The plaintiff can now argue that the hospital is seeking “to coerce [her] to speak contrary to her beliefs on a significant issue of personal conviction,” to quote the 303 Creative majority opinion. The logic of 303 Creative also casts a constitutional pall on bans on conversion therapy, which prohibit state-licensed therapists from trying to change the sexual orientation or gender identity of minors.

In a series of undisciplined statements that seemingly enunciate general principles of constitutional law, the 303 Creative majority held that Colorado cannot “coopt an individual’s voice for its own purposes” and force “creative professionals” to “choose between remaining silent, producing speech that violates their beliefs, or speaking their minds and incurring sanctions for doing so.”

This language will be familiar to veterans of the culture war. For years, proponents of conversion therapy argued that these restrictions violate the First Amendment by forcing professionals—who are depicted as “creative” in the sense they offer individualized care that draws on a therapist’s values, background, religion, and training—to remain silent on a matter of major significance.

One such group is the Alliance Defending Freedom, a conservative Christian legal behemoth that represented the website designer in 303 Creative. The Alliance Defending Freedom, which has amassed an extraordinary winning streak before the conservative Supreme Court, recently petitioned the Supreme Court to strike down Washington state’s ban on conversion therapy on free speech grounds.

ADF’s case has remarkable similarities to 303 Creative. The plaintiffs are Christian professionals who say their work is an outgrowth of their faith. The cases are pre-enforcement challenges, or suits against laws that haven’t yet been applied to the plaintiff and thus hinge on hypotheticals instead of well-developed factual records.

Both suits contend laws protecting LGBTQ people “threaten livelihoods” by disrespecting speech grounded in religious conscience. 303 Creative is also set to roil education. ADF and aligned groups have deluged courts with lawsuits from teachers who claim they have a right to intentionally misgender students in the classroom, in defiance of rules designed to ensure transgender students’ equal educational opportunities.

These suits allege that these antidiscrimination protections infringe on a free speech right to teach according to their “conscience”—even if doing so harms transgender students.

303 Creative bolsters their argument. The Supreme Court held Colorado sought “to force an individual to utter what is not in [her] mind about a question of political and religious significance.” ADF has argued that these antidiscrimination protections force teachers to speak what is not in their mind about the ontology of gender identity, a question of obvious religious and political significance.

ADF’s argument has already resonated with conservative judges on lower federal courts. The Supreme Court once recognized that communication made by individuals in certain regulated professions was distinct from the speech in the “marketplace of ideas” that fosters democratic deliberation. That’s no longer the case.

Writing for a 5-4 court in 2018, Justice Clarence Thomas held that “professional speech” was not a “separate category of speech” meriting less rigorous First Amendment protection.

This precedent gives professionals in medicine and education a potent tool to argue they are entitled to the same protections bestowed on the Christian graphic designer. This court delivered its 303 Creative opinion in a moment of revanchist backlash to sexual and gender minorities.

While some state and local governments like Colorado have moved to protect LGBTQ people, others have moved in the opposite direction, often in ways that trample the First Amendment: banning drag shows in public, revoking permits for Pride celebrations, and restricting access to queer books and discussions of LGBTQ identity in schools.

The First Amendment was meant to be a shield against these forms of censorship. In 303 Creative, the Supreme Court wielded it as a sword against those facing a rising wave of prejudice. And the court has only begun to plot its lunges and thrusts.

The case is 303 Creative LLC v. Elenis, US, No. 21-476, 6/30/23.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Duncan Hosie is an appellate lawyer and writer who was one of the authors of the ACLU’s amicus brief in 303 Creative.

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