There were times during the U.S. Supreme Court's oral argument in this session's highly significant LGBTQ case when some listeners might have thought they were hearing a modern day dramatic interpretation of the Mad Hatter's Tea Party. Consider one exchange between Justice Neil Gorsuch and U.S. Deputy Solicitor General Brian Fletcher during the December 5 oral arguments. Keep in mind that Gorsuch, just two years ago, led a majority to say that the federal civil rights act protects employees from discrimination based on sexual orientation and gender identity.
He was drinking a different tea December 5, when discussing whether a business could discriminate based on sexual orientation. The case, 303 Creative LLC v. Elenis, challenges Colorado's public accommodations law by seeking to allow web designer Lorie Smith to refuse to create wedding sites for same-sex couples. Here's how the discussion went:
Gorsuch: We also have stipulations from Colorado that the [web designer] is willing to work with all people, regardless of classifications such as race, creed, sexual orientation, and gender, right? ["Stipulations" are facts that both sides have agreed to be true.]
Fletcher: In some respects, yes but not —
Gorsuch: No, that is the [stipulation] — I just read it. Do you disagree with that? It's a stipulated fact in this case.
Fletcher: That is stipulated, but it's also clear that [the web designer] will not provide any wedding website for a same-sex couple.
Gorsuch: Well, for a same-sex wedding —
Fletcher: For a same-sex wedding, yes.
Gorsuch: And she wouldn't provide it to a heterosexual couple either, right?
The contorted supposition — that a heterosexual couple might want to buy a same-sex marriage wedding website — was probably concocted by Gorsuch to illustrate his position. That is, he thinks the discrimination in this controversy is based on message (Smith's religious beliefs) versus status (the sexual orientation of the couples whom the web designer excludes). He later stated, "What would be impermissible is discrimination on the basis of status, but what would be permissible is refusing service because of a disagreement about views."
Setting aside for the moment that there has never been a clamor by heterosexual couples to buy same-sex wedding websites, one has to wonder: What happened to the Gorsuch who wrote, in the 2020 Title VII case Bostock v. Clayton County: "Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations"?
Gorsuch was not the only guest at the tea party.
Consider the claims made by Alliance Defending Freedom attorney Kristen Waggoner, representing Smith: Waggoner claimed that the U.S. Supreme Court has already "held" that views opposing same-sex marriages are "honorable and decent" (it has not said that as a matter of law) and that the court made "promises" in Obergefell v. Hodges "to protect those who would believe marriage is between a man and a woman from having to express a view that violates their conscience."
Waggoner, the head of ADF, which organized Smith's initial lawsuit, was referring to the 2015 landmark Supreme Court decision in Obergefell v. Hodges. Written by then-Justice Anthony Kennedy, Obergefell struck down state bans on same-sex marriage. In his majority opinion, Kennedy included a sentence that said he thought there could be "decent and honorable religious or philosophical" reasons for opposing same-sex marriage. When Waggoner and others quote Kennedy to support discrimination against same-sex couples, they omit significant context and characterize the nonbinding observation as a "promise." It is worth revisiting what Kennedy actually wrote:
"Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied. Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right."
Taken in full, Kennedy's statement does not seem to support the idea that a web designer in the public marketplace can treat same-sex couples differently than male-female couples. In fact, the text of the recently passed federal Respect for Marriage Act, which says no state may deny recognition of a same-sex or interracial marriage licensed in another state, echoes Kennedy's "decent and honorable" statement, too. It states that diverse beliefs about marriage are held by "sincere people based on decent and honorable religious or philosophical premises" and that "Congress affirms that such people and their diverse beliefs are due proper respect."
But right-wing groups have clipped out Kennedy's "decent and honorable" quote to imply that the majority in Obergefell was suggesting there was a legal basis on which to discriminate against LGBTQ people. Justices Clarence Thomas and Samuel Alito gave prominence to the clip in 2020 when they issued a dissent to the court's declining to take up an appeal from a Kentucky county clerk who refused to issue marriage licenses to same-sex couples. In their dissent, Thomas and Alito misquoted the majority in Obergefell, saying it "briefly acknowledged that those with sincerely held religious objections to same-sex marriage are often 'decent and honorable.'" [The Obergefell majority said that people who oppose same-sex marriage often due so "based on decent and honorable religious or philosophical premises."]
In her remarks before the Supreme Court during the 303 Creative oral arguments, ADF leader Waggoner repeatedly asserted that web designer Smith "believes that same-sex weddings contradict scripture" and that creating a wedding website for a same-sex couple would be "announcing a concept of marriage that she believes to be false." The assertion reflected the fact that the court was not considering whether the web designer could refuse same-sex wedding sites on religious grounds but on any free speech grounds.
"I think what's important is that the [web designer's] objection is to the message she's being asked to create," said Waggoner. "And so, if she believes she's being asked to create a message that violates her convictions, whether those convictions are based on a moral reason or a religious reason, it would be protected."
If Waggoner's reasoning were accepted by the Supreme Court, then most public accommodations laws would be gutted: A business could simply claim that it "believes" it is being asked to violate its "convictions" in order to refuse service to a customer for any reason.
Because public accommodations laws typically prohibit discrimination based on race, religion, national origin, sex, disability, and other categories, it seems unlikely all six conservatives on this court are ready to eviscerate all such laws that dramatically. But the dialogue and Supreme Court math do not look good for LGBTQ citizens who rely on public accommodations laws.
Comments, questions, and the records of the six conservative justices suggest they are not looking for a way to strengthen public accommodations laws to protect LGBTQ people. Chief Justice John Roberts indicated he saw this case as "not simply just restricting speech but actually compelling an individual to engage in speech contrary to her beliefs." Justice Brett Kavanaugh suggested that if the Colorado law prevails, states could expand the reach of such laws to force speech writers to produce messages with which they disagree. Justice Amy Coney Barrett posed a hypothetical, asking Waggoner whether the web designer would refuse a wedding website to a male-female couple who were getting married after divorcing their previous spouses. Waggoner said no.
Justice Sonia Sotomayor warned during oral argument, "This would be the first time in the court's history that it would say that ... a commercial business open to the public, serving the public, that it could refuse to serve a customer based on race, sex, religion, or sexual orientation. ..."
Elections case
Despite the enormity of the case's eventual outcome, news reports on 303 Creative were fewer than usual for an LGBTQ-related argument. That may be because the court heard arguments two days later in what has been described as "the most important case for American democracy" in U.S. history. That case, Moore v. Harper, was argued December 7 and is set to determine whether state legislatures can create district maps and organize federal elections in each state in a way that gives a lopsided advantage to the political party in the majority — and do so without review by state courts to determine whether the maps and rules violate the state constitution.
The outcome of the Moore case out of North Carolina could have profound impact on the outcomes of presidential and congressional elections. It could determine whether a legislature could choose a state's presidential electors, and it could undermine the U.S. democratic system of checks and balances on the wielding of power in government. Most reporting and analysis on the Moore argument said the court seemed split into three groups: one against, one for, and one seeking a moderate compromise. As with the 303 Creative decision, the ruling in Moore is not likely to be released until June.
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