Could a business owner potentially be able to deny gay people a service that she provides for straight people?
One of the most talked-about and likely consequential Supreme Court cases on the docket this term is whether a Colorado web designer can legally refuse to provide a service to potential customers because of their sexual orientation — something Colorado state law currently prohibits — under the First Amendment.
The case, involving web designer Lorie Smith, focuses on the issue of speech, and specifically the compelled speech doctrine, a principle that the government can’t force a person to say something they don’t want to.
So, for this case, a question is whether requiring Smith to create a website for a same-sex couple under the state’s nondiscrimination law is also compelling her to speak — if making a wedding website is considered to be a form of speech by its creator.
Under Colorado state law, a business that offers services to the public, like a web design business, cannot discriminate based on sexual orientation and gender identity when offering those services. Smith, who opposes same-sex marriage, does not want to make wedding websites for gay couples, potentially violating this law.
A business like Smith’s is one of many spaces, from hotels to restaurants to healthcare providers to schools, that are classified under law as “public accommodations.”
Notably, there is still no full protection against discrimination for LGBTQ people on the national level. The Equality Act, which the House passed in February 2021, would federally protect people from “discrimination based on sex, sexual orientation, and gender identity,” including in public accommodations. President Joe Biden called on Congress to pass the act in his State of the Union address earlier this year, but it still hasn’t moved in the Senate.
Looking at the public accommodation nondiscrimination laws at the state level, the picture is surprisingly different — and complicated — depending on where you live in the U.S. Some states have broad protections in place, some have protections in some areas but not others, and some have no explicit prohibitions against discrimination at all.
But the majority of states — 29, plus the District of Columbia — do recognize sexual orientation and/or gender identity as protected classes in public accommodations in some form, according to data from the independent nonprofit Movement Advancement Project (MAP).
For example, 22 states and D.C. forbid discrimination based on sexual orientation and gender identity. (Colorado is one of these states.) Wisconsin protects only against sexual orientation discrimination. Six other states interpret their existing laws “against sex discrimination to include protections for both sexual orientation and gender identity” explicitly, the MAP notes.
There are, however, 21 states — found mainly in the South, Midwest and West — where discrimination in public accommodations based on sexual orientation or gender identity is technically legal. That means that a business owner in one of those states would be able to refuse to provide a service to a gay couple or even deny them entry to a space because they’re gay. Almost a third of the estimated U.S. LGBTQ population lives in states where this kind of discrimination isn’t against the law, according to MAP data.
In states that don’t have state-level protections, there may be nondiscrimination protections at a local level, but these depend on the specific state and its laws. Although, two states, Tennessee and Arkansas, have laws in place that stop local nondiscrimination ordinances from being passed or enforced.
While the court deliberates, there will be a lot of talk about protections under the law, whether for speech or for protected classes. But as the data shows, even in 2022, the protection from discrimination LGBTQ Americans have under the law is very much dependent on where they live.
Thanks to Lillian Barkley for copy editing this article.