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US Supreme Court Weakens Anti-discriminatory Laws

Updated: Jul 12, 2023

The United States Supreme Court has issued a ruling that has significant implications for nondiscrimination laws and the protection of various marginalized groups, including LGBT individuals. In the case of 303 Creative v. Elenis, a web designer faced a dilemma regarding creating wedding websites for same-sex couples due to a law prohibiting discrimination based on sexual orientation. The Court concluded that because the designer's work involved expressive content, it qualified as protected speech, thereby exempting her from the nondiscrimination law.

This decision raises concerns about its broader implications. The Court did not provide clear guidance on the definition of "expressive goods," leaving lower courts to interpret this aspect independently. Numerous businesses that serve the public, such as florists, hairstylists, nail salons, print shops, photographers, and caterers, rely on artistic or creative elements. Consequently, this ruling opens the door for these businesses to argue against compliance with nondiscrimination laws.

Moreover, the impact of this ruling extends beyond sexual orientation.

Nondiscrimination laws typically protect against bias based on race, sex, nationality, disability, age, gender identity, and other protected classes. The Court did not indicate any differentiation in how these provisions would be treated. Thus, the decision disrupts a longstanding consensus that businesses open to the public should be obligated to adhere to nondiscrimination laws.

What makes this ruling particularly concerning is that existing nondiscrimination protections in the United States are already incomplete. The failure to pass the Equality Act, a federal bill designed to prevent discrimination based on sexual orientation and gender identity across various contexts, is a notable example. Additionally, less than half of the states in the US have enacted laws prohibiting discrimination based on sexual orientation and gender identity in public accommodations.

In light of this decision, it is crucial for US lawmakers to intensify their efforts in eradicating discriminatory practices and defending existing nondiscrimination laws in court. By doing so, they can ensure that these laws remain robust and comprehensive, providing equal protection to all individuals regardless of their backgrounds or identities.


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