303 Creative LLC v. Elenis Supreme Court Decision

The Supreme Court’s recent decision in 303 Creative LLC v. Elenis has raised serious concerns about the legal protections offered to LGBTQ+ Americans against discrimination. Though the full implications of this decision are still not fully understood, it is important the public understand what the decision means in its immediate aftermath. In Nevada, the Supreme Court’s decision will not invalidate any specific provision of the state’s public accommodations law, though it will disallow certain applications of the law.

Nevada’s public accommodations law provides that “[a]ll persons are entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages and accommodations of any place of public accommodation, without discrimination or segregation on the ground of race, color, religion, national origin, disability, sexual orientation, sex, or gender identity or expression.”

Under Nevada statute, gender identity constitutes “a gender-related identity, appearance, expression or behavior of a person, regardless of the person’s assigned sex at birth.” Sexual orientation under Nevada statute means either having or being perceived as having an orientation toward heterosexuality, homosexuality or bisexuality.

A “place of public accommodation” is defined broadly to include a wide range of businesses, including restaurants, casinos, movie theaters, gas station and online establishments. A person who deprives someone of equal enjoyment of a public accommodation faces civil and criminal penalties. The Nevada Equal Rights Commission maintains an online complaint form for those who feel that they have been a victim of public accommodation discrimination.

In 303 Creative, the plaintiff alleged that she wanted to create wedding websites for engaged couples, though she argued that her religious beliefs would not allow her to create wedding websites for LGBTQ+ couples. At the core of the plaintiff’s argument was that wedding websites are a form of expression, and she was concerned that the public accommodations law in Colorado, her home state, would require her to design such a website anyway.

The Supreme Court held that a state public-accommodations law cannot compel expressive speech, even if that speech is connected to a commercial transaction. The Court distinguished this application of Colorado law, which would (according to the Court) compel “pure speech,” from applications affecting only “ordinary commercial good[s].”

Some applications of 303 Creative will be straightforward in Nevada. Nevada businesses are still prohibited from denying their services based on a person’s race, religion, sexual orientation or other protected characteristic. However, Nevada cannot sanction a business under the public accommodations law for declining to undertake some kind of expressive activity with which the business disagrees. Nevada can compel a bar to serve a member of the LGBTQ community; it cannot compel a movie director to create a pro-LGBTQ+ rights film.

The Office of the Attorney General anticipates that there will be more litigation in the future on what qualifies as expressive activity covered by 303 Creative, and will continue defending the public accommodations law against any effort to weaken it or limit its scope. The OAG will protect the rights of anyone in Nevada to live their lives free of discrimination and segregation. LGBTQ+ Americans deserve to live their lives without concern of judgment and without anxiety that they may be turned away from businesses that serve the public.

“We cannot allow members of the LGBTQ+ community to be made into political targets for simply living their lives authentically,” said AG Ford. “No one should feel forced to hide who they are or who they love. Discrimination is never acceptable and has no place in our country – we must fight back against any efforts to turn our fellow Americans into the ‘other.’ The Office of the Attorney General will always protect the rights of Nevadans to live their true lives.”