In the 1990s, a landlord turned away my then-partner and me when we sought to rent a one-bedroom apartment. Three decades later, the U.S. Supreme Court has definitively slammed that door shut for members of the LGBTQ community and millions of others — including interracial couples and unmarried couples — all of whom are now left exposed to discrimination.
In the wake of the recent 303 Creative LLC v. Elenis decision, civil rights organizations such as GLAD and the ACLU have emphasized the narrowness of the court’s ruling, which for the first time authorizes discrimination against a protected class in contravention of state public accommodation laws. In that case, the court allowed a website designer to refuse to create same-sex wedding websites because doing so would be inconsistent with her opposition to same-sex marriage.
Through their responses, these civil rights organizations downplay the threat that this Supreme Court decision poses to the LGBTQ community when they — and others — should instead be ringing the alarm bells loudly and clearly.
Arguing in favor of a narrow scope for the decision, these organizations point to the Supreme Court’s focus on the purportedly customized nature of the services provided by the website designer and her intent to express her own personal views regarding marriage through the websites that she creates for couples, however dubious this might sound.
Yet, the expression of personal beliefs is in no way confined to providing customized services. State nondiscrimination laws typically cover not only public accommodations like the website design business in 303 Creative but also employment and housing too.
Housing accommodations are a consequential and ready example of a cookie-cutter service that might implicate not only constitutionally protected freedom of expression, which formed the basis for the decision in 303 Creative, but also freedom of association and freedom of religion that are likewise protected by the First Amendment.
Following 303 Creative, it will take little time before landlords claim the right to discriminate against same-sex couples and their families on the ground that providing them shelter would require the landlord to condone same-sex relationships and facilitate same-sex sexual behavior in violation of their beliefs. Far from the hypothetical and contrived facts on which the Supreme Court based its decision in 303 Creative, this is a real-world scenario. I know because I lived it.
When my then-partner and I were looking for an apartment after I graduated from law school in the 1990s, we were turned away by a landlord who said that she could not conceive of why two men would want or need a one-bedroom apartment. She then flatly stated that she would never rent a one-bedroom apartment to two men living together. At a time when anti-gay attitudes were far more prevalent and socially acceptable, we chose to look for a landlord in a section of town that would not be so openly hostile to us and our relationship. But the harm had already been done.
The Supreme Court now appears to have opened the door to sanctioning this very sort of discrimination, threatening to wipe out a large swath of hard-won state nondiscrimination protections for the LGBTQ community and decades of apparent gains. It would not take much for property owners to walk through this door by creating a sympathetic set of facts like those in 303 Creative.
For instance, a landlord might assert that they have no problem renting to a single person who happened to be a member of the LGBTQ community. They might even go so far as to state that they would rent to someone in a relationship so long as the couple maintained separate residences — even though such a condition would inflict both dignitary and financial harm on the same-sex couple while redounding to the landlord’s obvious financial, not to mention legal, benefit.
And there is no reason to believe that discrimination would be limited to permanent forms of housing such as rentals or home sales. Similar claims could be made by innkeepers, Airbnb hosts and others operating more temporary forms of lodging. What’s more, the LGBTQ community is not the only segment of the population potentially affected by this decision, as unmarried different-sex couples, interracial couples and others could find themselves the targets of discriminatory treatment as well.
Although trying to limit 303 Creative to its facts will certainly be an appropriate lawyerly tactic when future challenges to the application of state nondiscrimination laws surface, as they certainly will, now is not the time to play down the harm that the Supreme Court has already wrought. Rather, the LGBTQ community and its allies — both in civil rights organizations and in Congress and the White House — should be identifying similar potential lines of attack and preparing now for these future attempts to chip away at the civil rights gains we have made.
The LGBTQ community cannot afford to let down its guard when faced with increasingly brazen attempts to relegate us to second-class status in American society.
Anthony C. Infanti is the Christopher C. Walthour, Sr. Professor of Law at the University of Pittsburgh School of Law. His work focuses on tax law and critical tax theory. He also is an affiliate faculty member of Pitt’s Gender, Sexuality and Women’s Studies Program and the author of the book “Everyday Law for Gays and Lesbians (And Those Who Care About Them).” He is currently working on “Taxation and Slavery in Colonial America,” scheduled to be published by NYU Press in late 2024.