Originally published in CU �鶹ӰԺ Today on July 3, 2023

Among the high-profile decisions the U.S. Supreme Court handed down last week was the 303 Creative case, in which the court ruled in favor of a web designer in Colorado who refuses to create messages that celebrate same-sex weddings out of religious objections.

The court’s 6-3 decision marks a significant blow to LGBTQ+ protections. Justices grounded the ruling in protections for free speech. The ruling will affect businesses that trade in so-called “expressive” goods. 

CU �鶹ӰԺ Today interviewed CU �鶹ӰԺ Law Professor Scott Skinner-Thompson, who focuses on LGBTQ+ and HIV legal issues, on the application of the First Amendment and the ruling’s legal implications for LGBTQ+ rights. 

What can businesses do or not do under this ruling? 

Even the majority opinion authored by Justice Neil Gorsuch says that generally speaking, these kinds of public accommodation nondiscrimination laws are unexceptional. And they're part of a long, proud history of protecting people in the marketplace. On the other hand, the majority also suggests that if you can prove that your business is expressive in some way, then you're more likely to be able to fall into this newly created exception to anti-discrimination law and say, ‘Well, I'm exempt because what I do is expressive.’ Going forward we're going to see lots of businesses try to say that they are expressive and therefore don't have to comply with nondiscrimination.

How does that affect the LGBTQ+ community?

Justice Sonia Sotomayor summarized it really powerfully. These (non-discrimination) laws do two things: They guarantee equal access to a product and they communicate and prevent dignitary harms to minoritized groups. There are going to be instances where people in conservative, smaller markets are going to be denied access to services. But even if you are a queer person living in metro Denver and can find a business that will serve you, knowing that a business does not have an obligation to and can openly signal their unwillingness to do so inflicts a dignitary harm on you separate and apart from any unequal access.  

How does the definition of ‘expressive’ change with this ruling?

It's a really critical question and there's going to be more and more incentive to cast what a business is doing as expressive. While generally speaking queer people benefit from a broad definition of what counts as expressive because that in turn can protect our expressive identities, in this case the court focused too much on whether the underlying activity was expressive rather than whether the law targeted that expression. As Justice Sotomayor noted, the law didn’t target expression–it was a neutral, generally applicable law that incidentally burdened expression.  

People are comparing this to the Masterpiece Cake Shop decision from a few years ago. Do you see similarities?

They're very similar. Five years ago, Masterpiece dealt with cake baking for a wedding as opposed to a wedding website. But the court in that case in large part punted and said that the application in that instance was unconstitutional because of some rhetoric they glommed onto from the state commission that they perceived as anti-religious. But we're dealing with the same statute and similar principles of freedom of expression and/or religion. However, in that instance, a majority of the court seemed to suggest that these kinds of laws generally were unremarkable. And you see both the dissent and the majority from 303 Creative trumpeting that language from Masterpiece in this case.

How can people who want to be LGBTQ+ allies push for change at this point?

This is a time when, despite some measure of progress for some within the queer community, there are incredible attacks on the lives of queer people, in particular trans people, going on. On an individual level, reaching out to those in your orbit who are queer to express solidarity is a great place to start. Also, engagement with civil society to try to change these laws and judicial interpretations is going to be critical.

Could this ruling apply to other groups? 

This decision is not limited to queer people. If you think the application of anti-discrimination law is going to force you to express something you don't believe in, like, for instance, interracial marriage, that becomes a possible exception, right? So we're going to see greater segregation within the marketplace. I do think this is a step back. I also think it's really important to affirm that it is still illegal in Colorado for businesses to discriminate against gay people. 

CU �鶹ӰԺ Today regularly publishes Q&As with our faculty members weighing in on news topics through the lens of their scholarly expertise and research/creative work. The responses here reflect the knowledge and interpretations of the expert and should not be considered the university position on the issue. All publication content is subject to edits for clarity, brevity and university style guidelines.

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By Evan Mahon

On January 26, 2023, over 100 Colorado Law students, staff, and faculty members flooded a classroom in the Wolf Law building to discuss one of the most prominent topics in today’s legal world: LGBTQ+ rights. The event was co-sponsored by OUTlaw and the Byron R. White Center for American Constitutional Law.

The conversation centered around Professor , who serves as special counsel as part of the Colorado Attorney General’s team in . Professor Norton is a University Distinguished Professor and the Rothgerber Chair in Constitutional Law. Her scholarly and teaching interests include constitutional law and civil rights law. Professor and 2L Evan Mahon moderated the discussion and student Q&A. Professor Skinner-Thompson is an Associate Professor whose research and teaching interests center around constitutional law, civil rights, and privacy law, with a particular focus on LGBTQ+ and HIV issues. Mahon currently serves as President of the LGBTQ+ student group, OUTlaw.

303 Creative is a case centered around a Colorado-based website design company claiming that state antidiscrimination law would violate its free speech rights if it were required to make wedding websites for same-sex marriages if it makes wedding websites for opposite-sex marriages. The website designer challenged Colorado anti-discrimination state laws which prevent public businesses from discriminating against gay people, as well as making statements in that same realm. The State of Colorado argued for the constitutionality of the Colorado Anti-Discrimination Act and prevailed at both the U.S. District Court for the District of Colorado and the Tenth Circuit. were held at the U.S. Supreme Court on December 5, 2022 with a decision expected around mid-June 2023. 

Over 100 individuals took part in the discussion with Professor Norton, Professor Scott Skinner-Thompson, and Mahon about the far-reaching implications of a ruling in favor of the website designer. When asked about what impact this decision could have on anti-discrimination laws, Professor Norton replied, “Well, the title of this event, LGBTQ Rights at the Supreme Court, is almost too narrow. The outer limits of this decision are unknown. It can potentially impact other matters covered under anti-discrimination laws.” In response to the attendants’ great interest, Professor Norton also shared about her experience litigating and sitting at the counsel table in the highest court in the United States.

During the Q&A, students asked how this decision intersects with privacy laws, about SCOTUS precedent established prior to the case, the Colorado law in question, and the implications of this decision on a local and national level.

When asked about the importance of events such as these, Mahon responded that,

“It is through educating one another about crucial social issues and finding unity in fighting these fights that we can build community and camaraderie. We must be conscious of the footprints we leave behind, as well as the steps that have been paved by those before us.”

OUTlaw provides professional, social, and academic support for LGBTQ+ (lesbian, gay, bisexual, transgender, and queer) law students and their straight/cisgender allies.

The work of the Byron R. White Center is premised on the belief that an informed and engaged community is essential to Constitutional democracy. The mission of the Byron R. White Center is to: support excellence in Constitutional legal scholarship; offer opportunities for Colorado Law students to promote justice; and expand public knowledge and informed discussion about the Constitution. The Byron R. White Center is ran under the guidance of Professor Suzette Malveaux (Moses Lasky Professor of Law and Director of the Byron R. White Center for the Study of American Constitutional Law at the University of Colorado Law School)

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Widely recognized for its intellectual diversity and originality, the faculty at Colorado Law encompasses an array of prominent legal scholars who are widely cited, both in academia and throughout the national media landscape. We invite you to catch up on the latest faculty publications and media mentions with this weekly round up, provided by the extraordinary .

Faculty Publications:

Rabea Benhalim, , 94 U. COLO. L. REV. 149 (2023).

Markus Funk [Colorado Law adjunct],  (Hart/Bloomsbury, 2021).

, 58 Am. Crim. L. Rev. 331 (2022).

100 Neb. L. Rev. (2022).

, 73 S. C. L. Rev. 195 (2022).

Scott Skinner-Thompson, , 57 HARV. C.R.-C.L. L. REV. 657 (2022). 

Notable Mentions:

[Samuelson-Glushko Technology Law and Policy Clinic student Xelef Botan], Colo. AG Office Fields Concerns on Draft Privacy Rules, Communications Daily, Feb. 2, 2023 (see highlighted text in attached PDF titled Communications Daily).

Violeta Chapin, Nicole C. Brambila, , Denver Gazette, Jan. 31, 2023.

Markus Funk, , The Volokh Conspiracy, Jan. 11, 2023.

Markus Funk, , Bloomberg Law (October 27, 2022).

Markus Funk, US District Judge Virginia M. Kendall, & Andrew S. Boutros, ,  Washington Post, Bloomberg Law & ABA Criminal Justice Newsletter (May 2022).

Dean Buckner Inniss,  (Feb. 2, 2023).

Douglas Kenney, GWC, Robyn White, , Newsweek, Feb. 1, 2023.

Amanda Parsons, Cryptocurrency and the Law, Mini-Law School (Feb. 1, 2023).

Blake Reid, Silicon Flatirons Center, Nicole Mueksch, 7 things to know about the internet’s midlife crisis, CU �鶹ӰԺ Today, Jan. 31, 2023 (SFC conference Feb. 5-6).

Scott Skinner-Thompson, Grace Mayer,  The Chronicle of Higher Education, Jan. 31, 2023.

Mark Squillace, , Denver Post, Feb. 1, 2023.

Ahmed White’s Under the Iron Heel: The Wobblies and the Capitalist War on Radical Workers (University of California Press, 2022) announced co-winner of the International Labor History Association’s 2022 “Book of the Year Award,” Jan. 30, 2023 (see attached PDF titled ILHA Book Awards 2022).

Ahmed White & Tom Mackaman, , World Socialist Web Site, Feb. 1, 2023.

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Privacy isn’t in the Constitution – but it’s everywhere in constitutional law

By , on June 15, 2022 8.26am EDT

Privacy is not specifically mentioned in the . But for half a century, the Supreme Court has recognized it as an outgrowth of protections for individual liberty. As I have studied in my  on , this implied right to privacy is the source of many of the nation’s most cherished, contentious and commonly used rights – including the right to have an abortion.

A key component of liberty

The Supreme Court first formally identified what is called “” – the right to independently control the most personal aspects of our lives and our bodies – in 1965, saying it was .

For instance, the  rights of speech and assembly allow people to privately decide what they’ll say, and with whom they’ll associate. The  limits government intrusion into people’s private property, documents and belongings.

Relying on these explicit provisions, the court concluded in  that people have privacy rights preventing the government from forbidding married couples from using contraception.

In short order, the court clarified its understanding of the constitutional origins of privacy. In the 1973 Roe v. Wade decision protecting the right to have an , the court held that the right of decisional privacy is based in the Constitution’s assurance that people cannot be “deprived of life, liberty or property, without due process of law.” That phrase, called the due process clause,  – in the  and .

Decisional privacy also provided the basis for other decisions protecting many crucial, and everyday, activities.

The right to privacy protects the ability to have consensual sex . And privacy buttresses the  regardless of race or gender.

The right to privacy is also key to a person’s ability to keep their family together without undue government interference. For example, in 1977, the court relied on the right to private family life to rule that a  even though it violated a local zoning ordinance.

Under a combination of privacy and liberty rights, the Supreme Court has also protected a person’s freedom in medical decision-making. For example, in 1990, the court concluded “that a competent person has a  in refusing unwanted medical treatment.”

Limiting government disclosure

The right to decisional privacy is not the only constitutionally protected form of privacy. As then-Supreme Court Justice William Rehnquist , the “concept of ‘privacy’ can be a coat of many colors, and quite differing kinds of rights to ‘privacy’ have been recognized in the law.”

This includes what is called a right to “informational privacy” – letting a person limit government disclosure of information about them.

According to some authority, the right extends even to prominent public and political figures. In one key decision, in 1977, Chief Justice Warren Burger and Rehnquist – both conservative justices –  in dissenting opinions that former President Richard Nixon had a privacy interest in documents made during his presidency that touched on his personal life.  have relied on the right of informational privacy to limit the government’s ability to disclose someone’s sexual orientation or HIV status.

All told, though the word isn’t in the Constitution, privacy is the foundation of many constitutional protections for our most important, sensitive and intimate activities. If the right to privacy is eroded – such as in a future Supreme Court decision – many of the rights it’s connected with may also be in danger.

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