US Supreme Court delivers blow to LGBTQ protections

  • by Lisa Keen
  • Friday June 30, 2023
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The U.S. Supreme Court ruled June 30 that a wedding website designed has a First Amendment right to refuse to provide services to same-sex couples. Credit: Fred Schilling, Collection of the Supreme Court of the United States
The U.S. Supreme Court ruled June 30 that a wedding website designed has a First Amendment right to refuse to provide services to same-sex couples. Credit: Fred Schilling, Collection of the Supreme Court of the United States

On the last day of Pride Month, the U.S. Supreme Court delivered a blow to LGBTQ rights when it ruled a Christian web designer has free speech rights to refuse to provide services to same-sex couples.

The 6-3 decision that a business owner does not have to comply with a state law against discrimination in public accommodations if the business owner claims their services or product expresses their "beliefs" was not a surprise, given the conservative makeup of the court.

The June 30 ruling arose out of a case in which a wedding website designer asked federal courts to declare she did not have to create wedding websites for same-sex couples. Many legal observers believe the decision will have consequences for LGBTQ people and other minorities beyond beliefs about marriage.

Justice Neil Gorsuch (a Donald Trump appointee) wrote the majority opinion. He was joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett, all Republican appointees.

Justice Sonia Sotomayor (a Barack Obama nominee) wrote for the minority, which included Elena Kagan and Ketanji Jackson, all Democratic appointees.

In the opening sentence of her dissent, Sotomayor quoted a conservative majority's opinion in Masterpiece Cakeshop v. Colorado: "Five years ago, this Court recognized the 'general rule' that religious and philosophical objections to gay marriage do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law."

In the Masterpiece Cakeshop case, also out of Colorado, the court ruled for a baker who refused to sell wedding cakes to same-sex couples. The decision, however, was narrow, as Justice Anthony Kennedy, who wrote the majority opinion, placed emphasis on the Colorado Civil Rights Commission that he said was hostile to baker Jack Phillips.

"...Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class," wrote Sotomayor. "... This is heartbreaking. Sadly, it is also familiar. When the civil rights and women's rights movements sought equality in public life, some public establishments refused. Some even claimed, based on sincere religious beliefs, constitutional rights to discriminate. The brave Justices who once sat on this Court decisively rejected those claims. ... [T]he law in question targets conduct, not speech, for regulation, and the act of discrimination has never constituted protected expression under the First Amendment. Our Constitution contains no right to refuse service to a disfavored group."

The court's decision came in 303 Creative v. Elenis, a case involving website designer Lorie Smith in Colorado who asked federal courts to declare that she had a right to refuse to design wedding websites for same-sex couples. The conservative Alliance Defending Freedom represented the Smith in seeking a pre-emptive ruling. Attorney General Aubrey Elenis defended the state law of Colorado, whose governor, Jared Polis, is the first openly gay man to be elected governor of any state.

The Alliance Defending Freedom, which has led numerous lawsuits seeking to undermine state laws that protect LGBTQ citizens, lost this case in federal district court and in the 10th U.S. Circuit Court of Appeals. The 10th Circuit said Colorado's public accommodations law was a neutral law of general applicability and that it was not unconstitutionally vague or overbroad, as the alliance had argued.

The Supreme Court majority decision reversed the 10th Circuit decision yet spent much of its time trying to illustrate ways in which the appeals court and the majority agreed. Gorsuch also spent an inordinate amount of ink defending the majority opinion from Sotomayor's stinging dissent — which characterized the majority decision as "embarrassing."

Gorsuch noted that the dissent accused the majority "is akin to endorsing a 'separate but equal' regime that would allow law firms to refuse women admission into partnership, restaurants to deny service to Black Americans, or businesses seeking employees to post something like a 'White Applicants Only' sign."

"But those cases are not this case," wrote Gorsuch. "Doubtless, determining what qualifies as expressive activity protected by the First Amendment can sometimes raise difficult questions. But this case presents no complication of that kind."

The alliance claimed that Smith sought only the First Amendment right to express herself "in a manner consistent with [her] religious beliefs; [she] does not seek to impose those beliefs on anyone else." The designer claimed she would serve LGBTQ people as long as the message of the website they sought did not conflict with her religious views, opposing marriage for same-sex couples.

The alliance and other extreme right-wing groups have been trying for years to win from the courts a broad exemption from various laws that prohibit discrimination based on sexual orientation and gender identity.

The alliance's argument was that the graphic artist had "the right to choose what messages her works convey" and that she chose to convey messages to "express what she believes is the beauty of God's design for marriage." The alliance said the Colorado law prohibiting discrimination in public accommodation (including the marketplace) violates the graphic artist's First Amendment right to freedom of expression by "forcing" her and other artists "to speak messages that violate their deeply held beliefs."

LGBTQ groups argued that the alliance was trying to create an "unbounded exemption" to non-discrimination laws, including the federal Civil Rights Act of 1964, and would be a "dangerous change to longstanding law.


President Joe Biden criticized the decision.

"In America, no person should face discrimination simply because of who they are or who they love," Biden stated. "The Supreme Court's disappointing decision in 303 Creative LLC v. Elenis undermines that basic truth, and painfully it comes during Pride Month when millions of Americans across the country join together to celebrate the contributions, resilience, and strength of the LGBTQI+ community."

Biden mentioned the narrowness of the ruling.

"While the court's decision only addresses expressive original designs, I'm deeply concerned that the decision could invite more discrimination against LGBTQI+ Americans. More broadly, today's decision weakens long-standing laws that protect all Americans against discrimination in public accommodations — including people of color, people with disabilities, people of faith, and women."

The president said he and his administration will continue to support non-discrimination laws.

"My administration remains committed to working with our federal enforcement agencies to rigorously enforce federal laws that protect Americans from discrimination based on gender identity or sexual orientation," Biden stated. "We will also work with states across the country to fight back against attempts to roll back civil rights protections that could follow this ruling. And we will accelerate our march toward full equality for every American."

Reaction to the ruling was swift and some LGBTQ organizations also pointed out the decision was a narrow one.

"While the court's holding is narrow and will apply only to a very small number of businesses, the dissenting justices rightly stress that the decision creates an unprecedented exception to nondiscrimination laws," stated Imani Rupert-Gordon, executive director of San Francisco-based National Center for Lesbian Rights. "This decision is out of step with the values held by the great majority of people in this country, who understand that discrimination has no more place in the public marketplace than it has in workplaces, government, or schools."

Rupert-Gordon encouraged businesses to be welcoming to all.

"We join the dissenting justices in calling on business owners to live out the values of equality and fairness and to affirm their commitment to serving all, without regard to race, age, nationality, religion, disability, sexual orientation, or gender," she stated. "We are stronger together and we are confident that this disappointing decision will be no more than an unfortunate footnote in our nation's ongoing commitment to realizing the ideals of freedom and equality for all."

Gay state Senator Scott Wiener (D-San Francisco) called the decision "horrifying."

"The Supreme Court today ruled bigoted business owners can exempt themselves from civil rights laws by refusing to sell to LGBTQ people. This ruling is dangerous and horrifying," he stated. "It has massive implications for LGBTQ anti-discrimination laws in employment, housing, and other contexts. The court is taking us down a road where discrimination against LGBTQ people is constitutionally protected. This attack isn't happening in a vacuum. It's part of a well-funded, concerted legal strategy by right wing extremists to hijack the First Amendment and use it as a tool to validate and constitutionally protect anti-LGBTQ discrimination."

San Francisco City Attorney David Chiu, a straight ally, pointed out the city joined with 19 mayors and 53 cities and counties across the country in submitting an amicus brief urging the U.S. Supreme Court to affirm the lower court decisions upholding Colorado's anti-discrimination law.

"This Supreme Court is yet again on the wrong side of history. The court's decision is heartbreaking and bigoted," Chiu stated.

"It is incredibly disturbing to think that a business should be able to refuse service to a person based on their sexual orientation or any other protected characteristic," he added. "This will rob people of their sense of safety and create a chilling effect, decreasing participation in public life and our local economies."

Equality California, the statewide LGBTQ rights group, said that the case was "fake" and "imaginary."

"Today, six Justices of the U.S. Supreme Court decided to once again ignore years of precedent and public norms and allow businesses a license to discriminate against LGBTQ+ people — a license this case was specifically engineered to create," stated EQCA Executive Director Tony Hoang.

"This was, in essence, a fake case concerning an imaginary conflict that was specifically engineered to usher in today's radical, reckless ruling that is out of touch with the majority of the country," he added. "We must remain vigilant not to succumb to this manufactured division."

EQCA added that recent polling "shows that more than two-thirds of Americans oppose permitting businesses to refuse service to LGBTQ+ people on religious grounds, and 8 in 10 support federal nondiscrimination protections for the LGBTQ+ community."

"We also know the vast majority of business owners believe in treating all their customers with dignity and respect," Hoang stated. "This radical Supreme Court has again proven itself to be wildly out of step with the American people."

Hoang pointed out that the decision comes at a time when LGBTQ+ people are under attack across the country, with more than 500 pieces of anti-LGBTQ+ legislation introduced and over 75 of those signed into law.

"Amid this legislative onslaught we are also seeing rising anti-LGBTQ+ sentiment and increasing incidents of violence, intimidation, and harassment — leading the Human Rights Campaign to declare a state of emergency for LGBTQ+ Americans."

HRC, the country's largest LGBTQ rights organization, issued its declaration in early June, in response to the numerous anti-LGBTQ pieces of legislation that have been signed into law this year.

Updated, 6/30/23: This article has been updated with comments from President Biden, state Senator Scott Wiener, and SF City Attorney David Chiu.

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