Guidance on the New Jersey Law Against Discrimination Following the U.S. Supreme Court’s Decision in 303 Creative LLC v. Elenis

TRENTON – Attorney General Matthew J. Platkin announced today that the Division on Civil Rights (DCR) has issued guidance that explains how DCR will enforce the New Jersey Law Against Discrimination (LAD) in light of the U.S. Supreme Court’s recent ruling in 303 Creative LLC v. Elenis.

In 303 Creative, the U.S. Supreme Court considered whether the First Amendment barred the application of a Colorado anti-discrimination statute to a web designer who intended to make customized websites for weddings but not to do so for same-sex weddings.  The parties agreed that the web designer’s websites were “original” and were “customized and tailored” for each customer, and that the websites the business designed were “expressive” and expressed the designer’s own speech and message regarding her clients’ weddings. Based on those specific facts, the Supreme Court held that the web designer had a First Amendment right not to make her customized website designs for same-sex weddings.

The enforcement guidance released today explains that the ruling in 303 Creative will not affect how the LAD applies to the vast majority of businesses and vendors open to the public. As the guidance notes, the Supreme Court’s ruling exempts only a narrow set of services offered by some places of public accommodation from anti-discrimination laws like the LAD.  Specifically, in order to assert an exemption from the LAD, a public accommodation must establish that (1) its creative services are “original” and “customized and tailored” for each customer; (2) the creation is “expressive” and expresses the creator’s own First Amendment-protected speech; and (3) the public accommodation’s refusal to provide the creative service to a customer is based on the message it conveys, not the customer’s identity or protected characteristic standing alone.

“The Supreme Court’s misguided decision in 303 Creative does not change a simple fact:  New Jersey’s laws remain among the strongest in the nation for protecting people, including members of the LGBTQ+ community, against bias and discrimination,” said Attorney General Matthew J. Platkin. “Our commitment to enforcing those laws and ensuring our residents’ rights to fair treatment remains unwavering.”

“The New Jersey Law Against Discrimination is one of the nation’s strongest anti-discrimination statutes, and we remain committed to enforcing the robust protections it provides,” said Sundeep Iyer, Director of the Division on Civil Rights.  “We strongly encourage anyone who believes that have experienced discrimination to file a complaint with the Division on Civil Rights.”

The LAD prohibits employers, housing providers, and places of public accommodation from unlawfully discriminating on the basis of actual or perceived sexual orientation, gender, gender identity, gender expression, race, color, national origin, ancestry, religion, disability, and other protected characteristics.  It also prohibits employers, housing providers, and places of public accommodation from publishing, circulating, or displaying any communication or advertisement stating that the entity will discriminate or refuse to serve patrons based on a protected characteristic.

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The New Jersey Division on Civil Rights enforces the LAD, the New Jersey Family Leave Act, and the Fair Chance in Housing Act, and works to prevent, eliminate, and remedy discrimination and bias-based harassment in employment, housing, and places of public accommodation throughout New Jersey.

To find out more information, go to www.njcivilrights.gov.

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