New York State Bar Association Argues in U.S. Supreme Court Amicus Brief That No One Should Be Discriminated Against in Public Accommodations

By Susan DeSantis

New York State Bar Association Argues in U.S. Supreme Court Amicus Brief That No One Should Be Discriminated Against in Public Accommodations

8.22.2022

By Susan DeSantis

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The New York State Bar Association has filed an amicus curie brief in 303 Creative v. Elenis, arguing that the history and tradition of statutory and common law prohibit discrimination in public accommodations.

Nearly four years after the Supreme Court in Masterpiece Cakeshop v. Colorado Civil Rights Commission declined to decide on procedural grounds whether compelling a Colorado baker to prepare a cake for same-sex couples would violate his right to freedom of speech, the court has taken up a similar question in another case from Colorado, this time involving a website designer. The justices’ decision to grant review in 303 Creative sets up yet another major ruling on the intersection between LGBTQ rights and the First Amendment.

“The New York State Bar Association has and will continue to be a strong voice in support of the elimination of discrimination in interstate commerce based upon race, ethnicity, sex, sexual orientation, gender identity, or differences in physical ability or medical status,” said Sherry Levin Wallach, the association’s president. “Discrimination against any protected class on such basis is fundamentally unjust and un-American.”

Petitioner Lorie Smith owns a graphic design firm and wants to expand her business to include wedding websites but does not plan to serve same-sex clients. She intends to post a message on her website explaining that she won’t handle same-sex marriages because of her religious beliefs. However, the Colorado Anti-Discrimination Act prohibits businesses that are open to the public from discriminating or announcing their intent to do so.

By arguing that the First Amendment to the United States Constitution does not abrogate the long history of requirements that businesses that offer services to the public must do so in a non-discriminatory manner, the New York State Bar Association remains at the forefront of protecting long-held American history and tradition.

“I am proud to lead an association where we strongly stand behind the ability of states to enact and enforce anti-discrimination statutes, just like Colorado is doing here,” Levin Wallach said.

“When you open your business to the public, you have to make sure that your services are available to all,” said Christopher R. Riano, chair of the LGBTQ Section of the New York State Bar Association. “The history and tradition of both statutory and common law mandate that those who provide services to the public must do so free from discrimination, and we are very proud to support that position on behalf of the state bar association before the United States Supreme Court.”

The bar association’s LGBTQ Law Section researched and wrote the brief on behalf of the association. Riano and section members Jackie Drohan and Robert Rosborough spearheaded the effort.

About the New York State Bar Association
The New York State Bar Association is the largest voluntary state bar association in the nation. Since 1876, NYSBA has helped shape the development of law, educated and informed the legal profession and the public, and championed the rights of New Yorkers through advocacy and guidance in our communities.

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