Tip Sheets

Denying service in the name of free-speech—Cornell expert weighs in

Media Contact

Damien Sharp

The Supreme Court is slated to hear oral arguments on Dec. 5 concerning a free-speech claim by a website designer who opposes same-sex marriage. In Creative LLC v Elenis, Justices will decide whether a Colorado law that requires an artist to speak or stay silent violates the First Amendment. The state law in question in this matter is the same law Colorado baker Jack Phillips questioned in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) wherein Phillips argued he had the right to decline making wedding cakes for same-sex marriages.  

Nelson Tebbe

Professor of Law

Nelson Tebbe, professor of constitutional law and expert in freedom of speech, is a member Cornell Law School’s First Amendment Clinic.

“The Supreme Court is likely to rule that a religious business is exempt from civil rights laws. 303 Creative is a for-profit corporation that designs websites for customers. It would like to expand into the wedding website market, but it objects to serving same-sex couples because of its commitment to traditional Christianity. Yet the state of Colorado has a civil rights law that requires all businesses open to the public to serve customers without respect to protected characteristics, including race, religion, sex, and LGBTQ status.  

“A majority of justices seem posed to rule that the First Amendment’s protection of free speech requires the state to exempt 303 Creative from its civil rights law. Yet such a ruling will raise important questions about whether speech is involved at all in selling services to the public, and if so, how far a rule protecting it will extend to other businesses beyond the wedding industry and to other types of discrimination beyond the exclusion of same-sex couples.” 

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