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Freedom of expression clashes with equal access in 303 Creative SCOTUS, experts decode the decision

scotus event

University of Houston Law Center Dean Leonard M. Baynes moderated the 2023 Supreme Court Update discussion with panelists Emily Berman, Seth J. Chandler, D. Theodore Rave, Ryan Marquez and Daniel I. Morales.

Aug. 30, 2023 — In an annual U.S. Supreme Court update presentation hosted by the University of Houston Law Center, legal academic experts discussed key cases from the latest term including 303 Creative LLC v. Elenis and its interplay between First Amendment freedom of expression and LGBTQ+ access to services offered by businesses.

Professor Daniel Morales, Associate Professor of Law and George A. Butler Research Professor at the University of Houston Law Center, provided insights on the Supreme Court’s 6-3 decision in 303 Creative, which found the First Amendment protected a Colorado web designer from being compelled by state public accommodations law to create designs against her beliefs.

“It’s a fairly radical outcome. The decision was a real departure for the Court,” said Morales.

He explained public accommodations law helps a diverse set of U.S. citizens interact in the public commercial sphere.

“One's personal beliefs about one's customers are simply irrelevant. That's the world that a public accommodations law created. What the Court has done here is create a First Amendment carve out for certain forms of discrimination to be deemed okay under the First Amendment,” Morales said.

D. Theodore Rave, Professor of Law at the University of Texas at Austin, commented on the crux issues at hand and the scope of public accommodations law.

“This case really teases out two important values — freedom of speech and equality. They are not easy values to balance against each other,” said Rave. “Public accommodations laws are emphatically not enforcement of the equal protection guarantee under the Fourteenth Amendment. These are enacted under the Commerce Clause. The Fourteenth Amendment doesn't reach private conduct.”

Emily Berman, Professor of Law and the Royce R. Till Professorship at the University of Houston Law Center, offered context on the Court’s decision.

“Historically with this Court, their solicitude for free speech, constitutional rights and religious liberty often seems to come out more strongly when the disadvantaged individual is part of some majority group,” said Berman.

On the federal level, public accommodations law prohibits discrimination on the basis of race, color, religion, or national origin. It does not protect against age, sex, sexual orientation, and gender identity discrimination. While some states such as Colorado do protect additional classes, the legal landscape is changing.

“Inevitably the losers from these carveouts will be already disfavored groups like LGBTQ people who are already under siege by legislators in states across the country,” said Morales. “This

matters because we know from various studies that public accommodations law actually does work to lessen bias against people.”

The panelists also presented on Color Blind Jurisprudence considering the recent Supreme Court cases on affirmation action and voting rights, Biden v. Nebraska and the Biden administration’s attempt to cancel student loan debt and the Future Direction of the Court.

The full list of speakers were:

  • Leonard M. Baynes, Dean and Professor of Law, University of Houston Law Center
  • Emily Berman, Professor of Law and Royce R. Till Professorship, University of Houston Law Center
  • Seth J. Chandler, Law Foundation Professor of Law, University of Houston Law Center
  • Ryan Marquez Clinical Associate Professor and Director of the Civil Justice Clinic, University of Houston Law Center
  • Daniel I. Morales, Associate Professor of Law and George A. Butler Research Professor, University of Houston Law Center
  • D. Theodore Rave, Professor of Law, University of Texas at Austin School of Law

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