The U.S. Supreme Court sometimes makes significant moves long before it hears arguments in a case. Such is true in a blockbuster LGBTQ case pending before the court in its newly opened 2022-23 session that will see the first Black female justice, Ketanji Brown Jackson, joining her colleagues on the bench.
A ceremonial investiture ceremony for Jackson was held September 30, with President Joe Biden and Vice President Kamala Harris in attendance.
On the court's docket for this term is an appeal in the case 303 Creative v. Elenis. The anti-LGBTQ group Alliance Defending Freedom asked the court to decide whether a business could claim a religious exemption to a state law prohibiting discrimination based on sexual orientation in public accommodations. The court declined to answer that question but, instead, accepted the appeal to answer a different question: whether a business could claim a free speech right to discriminate.
"This is a case about commercial conduct, not speech," said Mary Bonauto, GLAD civil rights project director and lead author of a brief urging the court to rule that the free speech clause does not exempt businesses from complying with public accommodation laws.
By examining the free speech claim, the court is setting up its eventual decision to have "far broader implications" than a religious exemption to civil rights laws, said American Civil Liberties Union attorney Amanda Shanor at a Federalist Society preview September 21. And as Kelsi Corkran, Supreme Court director at the Institute for Constitutional Advocacy and Protection, said at a Georgetown Law preview, the narrowing of the question will enable the court to decide whether any business can simply articulate "any reason" to refuse serving customers because of their sexual orientation, race, gender, or other protected status.
"If there is a free speech right to selectively choose her customers based on the messages [the web designer] wants to endorse," said Corkran, "I assume that would apply to any protected characteristic. I think it would apply to a white supremacist who doesn't want to provide services to people of color."
That was the assessment of several legal experts on a number of different panels examining the 2022-23 Supreme Court docket. The new session began October 3, and most panels identified the LGBTQ public accommodations case as one of the session's four major conflicts. Others include voting rights, gerrymandering, and affirmative action.
So far, 303 Creative is also among several LGBTQ-related cases the Supreme Court might take up this session. The case, which has been accepted for argument (probably in December), could allow any business in the public marketplace (hotels, restaurants, bakeries, web designers, etc.) to refuse service to a customer by claiming to have some personal objection to treating that customer the same as all others.
While this case is based on a desire by a web designer, Lorie Smith, to refuse services to same-sex couples, it could undermine civil rights for the wide range of people protected by anti-discrimination laws. It pits a one-person web design company against Colorado laws (represented by state Attorney General Aubrey Elenis). The appeal seems a strange one for the court to have accepted, in that no same-sex couple has sought the web designer's services. As gay longtime marriage equality attorney Evan Wolfson put it, the case "doesn't even present a true case or controversy and ought not to be before the court." The fact that the court has taken the appeal suggests the 6-3 conservative majority has decided to aggressively pursue the right-wing agenda.
Shannon Minter, legal director for the National Center for Lesbian Rights, said he finds the court's question limit to free speech "extremely troubling."
"The court framed the question to presuppose that designing a website for money in a business open to the general public is 'artistic expression' rather than an ordinary commercial service," said Minter. "That is a radical departure from existing law. It's one thing for the court to change the law. It's another for the court to do so surreptitiously by framing the question in such a highly loaded and novel way."
Boston College Law School Professor Kent Greenwood, at an American Constitution Society preview, said he believes the court will rule for the web artist.
"I have no doubt which way the court will decide. The court is expanding both its understanding of what speech is and its protection of it," said Greenwood. "Though facially a speech case and not a religion clause case, the case fits comfortably in the court's broadening effort to expand religious protections for religious people ... especially those religions that are evangelical and mainstream. The court is increasingly solicitous of religion claims."
Other possible cases
Klein v. Oregon: This is a copycat case on a repeat appeal, and the Supreme Court has not yet indicated whether it will take it up. In Klein v. Oregon, the Oregon Court of Appeals ruled that a baker could not cite her religious beliefs in order to violate a state law that prohibits discrimination based on sexual orientation in public accommodations.
The Supreme Court vacated that state decision in 2019 and asked the lower court to reconsider the case "in light of" Masterpiece Cakeshop v. Colorado. Oregon did and came back with the same decision: A baker could not claim a free exercise of religion right to violate a state law against discrimination in public accommodations.
In 2018's Masterpiece Cakeshop v. Colorado case, the Supreme Court ruled that two members of a seven-member Colorado Civil Rights Commission made statements that "might be seen as inappropriate and dismissive" of a Colorado baker's religious beliefs against marriage for same-sex couples. No matter how meritorious the state law prohibiting discrimination based on sexual orientation might be, the court majority felt the two commission members' comments crossed a line that made the panel appear less than neutral in its deliberation.
Florida v. NetChoice: In this case, Florida appeals to defend its newly passed law that stops social media from "censoring users based on viewpoint." LGBTQ groups say that social media groups should be able to ban hate speech because, "Without adequate content moderation policies, digital forums and apps can become breeding grounds for homophobia, bullying (cyber and otherwise), harassment, and misinformation." The 11th U.S. Circuit Court of Appeals ruled the Florida law violated the First Amendment rights of the social media companies. It cited such Supreme Court precedents as Hurley v. Irish-American Gay, establishing the right of a St. Patrick's Day parade organizer to ban participation by LGBTQ groups. The Supreme Court has not yet indicated whether it will hear the appeal, but several panelists at preview conferences said they believe there's a good likelihood it will.
NetChoice v. Texas: Texas and Florida are often dancing together these days and have done so here, with Texas also passing a law to stop social media from banning certain "viewpoints." This case is still in procedural motions in lower courts, with the latest — a 5th Circuit order — that allows the law to take effect while the legal challenge winds its way through the courts.
NetChoice asked the Supreme Court to vacate the 5th Circuit's order and, in an apparent 6-3 vote, the court granted that request, keeping the Texas law null for now. Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch dissented. The case on the merits of the legal challenge will now proceed.
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