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Stateside Podcast: What the SCOTUS 303 creative decision means for Michigan

 Person holding pride flag in front of government building

The United States Supreme Court recently published their decision on a Colorado lawsuit that implicates LGBTQ+ anti-discrimination protections and other civil rights laws in the US. In 303 Creative LLC v. Elenis, a graphic designer asserted her First Amendment right to refuse providing creative services to same-sex couples. A 6-3 majority of the court found that the state cannot force creative businesses to produce work that doesn't align with religious beliefs.

What the 303 Creative decision says

Stateside spoke with Jay Kaplan, a staff attorney for the ACLU of Michigan's LGBTQ+ Project about this decision and what it means for Michigan.

“I think it's important to note that this is the first time in the history … of the United States Supreme Court that they have ever held that there is a constitutional right to discriminate against customers using the First Amendment,” said Kaplan.

This ruling does not grant businesses a license to turn away customers based on sexual orientation. Rather, it allows business owners who create and sell art to reject specific commissions that go against their beliefs.

“This is a very narrow group of businesses based on the facts of this decision that would qualify for that exemption,” Kaplan said.

What this means for Michigan

The decision would only be limited to custom original expressive services. Kaplan said that this would include movie directors, mural painters, and speechwriters.

“But let's not kid ourselves, too. We know that there's going to be businesses that are going to argue that they shouldn't have to serve members of the LGBTQ community or members of other communities that are protected under civil rights laws,” said Kaplan. “And no doubt we will see that in Michigan.”

Michigan has established that it's illegal to discriminate against people based on their gender identity and sexual orientation. The Elliott-Larsen Civil Rights Act amendment passed in March 2023 states that you cannot discriminate in public accommodations based on sexual orientation, gender identity, and gender expression. This includes businesses.

“I think it's important to note that it's content-neutral,” said Kaplan “It is basically saying … if you're open to the public, you have to serve the public.”

This decision upended this and caused a setback in achieving equal rights.

“The fear is that individuals will find that businesses will be turning them away for who they are,” said Kaplan “And that goes totally against … our principles of … treating people fairly and providing equal opportunity.”

A larger trend in the U.S. Supreme Courts

Unlike previous similar cases such as the Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the case was based on a false premise: there was no legitimate gay couple turned away from the graphic designers' services. The graphic designer sued the state as she wanted to advertise that she wouldn’t make wedding websites for same-sex couples.

Kaplan said that there is a recent “disturbing trend…with the U.S. Supreme Court, where they're deciding cases based on hypothetical situations.”

“This court majority is so out of step with public opinion,” said Kaplan. “The court majority seems bent on expanding this idea of so-called religious liberty at the expense of enforcing civil rights laws. … I think it's understandable that people are upset.”

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Tessa is a senior student studying Broadcast Journalism and Theatre at Michigan State University and she joined the Stateside team as a production intern in June 2023.
Rachel Ishikawa joined Michigan Public in 2020 as a podcast producer. She produced Kids These Days, a limited-run series that launched in the summer of 2020.