Response from Schulte Roth & Zabel and Tanenbaum on 303 Creative v. Elenis Decision

NEW YORK, June 30, 2023 /PRNewswire/ — In a 6-3 decision, the United States Supreme Court ruled in favor of a website designer that wanted to use her religious beliefs to deny her commercial services to same-sex couples.  The Court held that the First Amendment Free Speech Clause permits providers of commercial services to deny their “expressive designs” if it promotes a message with which the designer disagrees. 

Very plainly, this ruling puts religious liberty in jeopardy and opens the door to discrimination against people because of their religious beliefs, practices and expressions, when different from our own.  In her dissenting opinion, Justice Sonia Sotomayor acknowledges as much, stating that the majority decision “threatens to balkanize the market and to allow the exclusion of other groups from many services.” 

On August 19, 2022, on behalf of the Tanenbaum Center for Interreligious Understanding (Tanenbaum), a pro bono team from Schulte Roth & Zabel (Schulte) filed an amicus brief with the Supreme Court of the United States in support of the respondent Colorado Civil Rights Division and in defense of the Colorado Anti-Discrimination Act (CADA), the public accommodations law that formerly ensured that LGBTQ+ individuals and other protected classes had equal access to publicly available commercial goods and services in Colorado.

While the Court concluded that CADA infringes on the petitioner’s First Amendment right to freedom of speech, claiming that her websites are artistic expression and that by prohibiting discrimination on the basis of sexual orientation, CADA burdens that expression, we remain in disagreement.

As an organization dedicated to building respect for religious difference, Tanenbaum’s work involves creating a world which allows for the maximum amount of freedom of expression possible for all parties involved, regardless of religious affiliation.  Tanenbaum argued in its amicus brief and continues to believe that by finding CADA unconstitutional, the Court is permitting discrimination against individuals based on either their religious beliefs or lack thereof.

“The best way to ensure robust and lasting protection for religious freedom is to preserve the government’s ability to implement anti-discrimination laws,” said Tanenbaum CEO Rev. Mark Fowler. “The Supreme Court’s unprecedented decision to permit businesses to refuse services to members of a protected class opens the door to unchecked discrimination and harm for years to come for people of all religious backgrounds and beliefs.”  Further, Rev. Fowler says, “This decision of the Court also opens the door for business owners to decide not to provide public services to people based on any of their immutable characteristics.  This decision moves us backward in the pursuit of an equitable society for all.”

“The Court’s decision stands for the dangerous proposition that the principles of freedom and equality guaranteed by the Constitution do not apply to the LGBTQ+ community,” said Erika Simonson, litigation associate at Schulte.  “The Court is unraveling our understanding of equality in this unprecedented ruling by granting businesses a license to discriminate against not only members of LGBTQ+ community, but against people of any protected class, including people of all religious backgrounds and beliefs.  Schulte is proud to work with Tanenbaum, who understands that protecting LGBTQ+ people’s equal access to goods and services is not only compatible with, but in furtherance of, religious liberty.” 

As part of the firm’s extensive pro bono initiatives, Schulte has served as long-time counsel to Tanenbaum, which advances mutual respect through practical programs that promote justice and build respect for religious differences by transforming individuals and institutions to reduce prejudice, violence and hatred. Schulte previously filed an amicus brief on behalf of Tanenbaum in connection with the Masterpiece Cake Shop case, which also argued in favor of CADA when a bakery refused service to same-sex couples.

The Schulte team behind the amicus brief was led by Partner Robert Ward, and includes Partner Randall Adams, Special Counsel for Pro Bono Initiatives Sara Solfanelli and Associates John Schneider and Erika Simonson.

A copy of the Amicus Brief is available here.

About the Tanenbaum Center for Interreligious Understanding
Tanenbaum promotes justice and builds respect for religious difference, by transforming individuals and institutions to reduce prejudice, hatred, and violence. As a secular and non-sectarian non-profit, Tanenbaum works to promote religious peacebuilders who help counter extremism and violence in armed conflicts, and tackles religious bullying of students, harassment in workplaces, and disparate health treatment for people based on their beliefs.

About Schulte Roth & Zabel
Schulte Roth & Zabel LLP ( is a market-leading law firm serving the financial services industry from offices in New York, Washington, DC and London. Schulte has a long history as a leader in pro bono services, and the firm’s Litigation Group has extensive trial experience and a proven track record of success in complex civil and criminal matters.

Learn more about Schulte Roth & Zabel’s Pro Bono heritage here.

Mike Goodwin
[email protected]

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SOURCE Schulte Roth & Zabel LLP

Response from Schulte Roth & Zabel and Tanenbaum on 303 Creative v. Elenis Decision WeeklyReviewer

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