LGBTQ rights on the line in case before US Supreme Court

  • by Lisa Keen
  • Wednesday November 30, 2022
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The U.S. Supreme Court will hear oral arguments December 5 on a case that affects LGBTQ rights. Photo: Fred Schilling, Collection of the Supreme Court of the United States
The U.S. Supreme Court will hear oral arguments December 5 on a case that affects LGBTQ rights. Photo: Fred Schilling, Collection of the Supreme Court of the United States

The ordinary rights of LGBTQ people are on the line again at the U.S. Supreme Court — this time on Monday, December 5, with a case seeking to allow any business to deny service to a customer by claiming a personal objection to treating that customer the same as others.

Oral arguments will begin at 7 a.m. Pacific time and 70 minutes have been allotted. Some members of the public will be allowed to attend the oral argument in person but on a first come, first served basis, which generally requires camping outside in a designated line overnight. People can listen to the argument live or read the transcripts or listen to the audio from the session shortly after it concludes.

The case

The case is 303 Creative v. Aubrey Elenis, the Colorado attorney general. The Alliance Defending Freedom, a legal group that has focused largely on anti-LGBTQ projects, initiated this case. In the case, ADF sought to restage an earlier case that fell short — 2018's Masterpiece Cakeshop v. Colorado — where the group won only a procedural victory. In this case, ADF has asked web designer Lorie Smith to press a preemptive case against the state public accommodations law protecting LGBTQ people, saying that if she did offer wedding page services, she would not want to offer them to same-sex couples because of her religious beliefs.

Graphic artist Smith was recruited by ADF to file this lawsuit even though no same-sex couple had yet come to her seeking a design for their wedding plans. In fact, Smith had not yet even offered to provide wedding site designs for any potential customers. Although Smith said she has had LGBTQ clients, she said she could not do wedding website designs for same-sex couples because of her belief that the Bible prohibits same-sex marriage.

The state of Colorado, and Elenis, its attorney general, are defending the state law that prohibits in public accommodations discrimination based on "disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry."

Previous rulings

Both a U.S. district court and the 10th U.S. Circuit Court of Appeals upheld the Colorado Anti-Discrimination Act, or CADA, in this challenge. The 10th Circuit ruled CADA to be a "neutral law of general applicability" and said it is neither unconstitutionally vague nor overbroad and did not violate the free speech or free exercise rights of the plaintiff.

But the Supreme Court has dramatically reframed the question posed by attorneys for the web designer. ADF attorneys asked: "Whether applying a public accommodation law to compel an artist to speak or stay silent, contrary to the artist's sincerely held religious beliefs, violates the free speech or free exercise clauses of the First Amendment." The Supreme Court, in accepting the ADF appeal, posed a much larger question, one that does not require a religious objection but any objection: "Whether applying a public accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment."

For that reason, LGBTQ legal experts are concerned about the case.

"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," explained Shannon Minter, a trans man who is legal director for the San Francisco-based National Center for Lesbian Rights. "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."

Kristen Waggoner, head of ADF, will argue Smith's side of the case, while Colorado Solicitor General Eric Olson and U.S. Deputy Solicitor General Brian Fletcher will argue for the state.

The prospects

The current composition of the court, with its supermajority of six conservative justices, has been aggressively pursuing decisions that square with Catholic and evangelical doctrine. Most notably, the six issued a decision in June (Dobbs v. Jackson Women's Health Organization) overturning two long-standing precedents on reproductive freedom and, in doing so, gave the green light for states to enact laws prohibiting abortion. One of the six, Justice Clarence Thomas, wrote a concurring opinion urging his colleagues to "reconsider all of this court's substantive due process precedents, including Griswold, Lawrence, and Obergefell." Lawrence v. Texas struck down state bans against same-sex sexual relations; Obergefell v. Hodges struck state bans against marriage for same-sex couples; and Griswold v. Connecticut struck bans against couples using contraceptives. The fact that the court accepted the 303 Creative appeal, even though the plaintiff never had a same-sex couple seeking a wedding web design, suggests an eagerness to fulfill Thomas' wishes.

A worst-case scenario decision in 303 Creative 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.

A much better outcome for LGBTQ people would be for the court to rule that laws prohibiting discrimination in public accommodations protect people with religious beliefs, as well as others, from discrimination and only incidentally implicate free speech concerns. And, as a friend of the court brief from the NAACP stated: "Public accommodations laws are vital to ensuring free and full access to society and its benefits on an equal basis to all. When merchants exclude individuals from commercial transactions based on their identity — as Petitioner wishes to do here — the excluded individuals suffer a stigma that the law is meant to guard against."

The oral argument comes just two weeks after the New York Times reported that Justice Samuel Alito has for years been carrying on cozy relationships with religious conservative groups. The Times obtained a June 7 letter from a former anti-abortion activist to Chief Justice John Roberts in which the activist claims that Alito leaked the outcome of a 2014 religious exemptions case to a personal gathering of anti-abortion leaders at his home. The leak enabled anti-abortion groups to move swiftly to capitalize on the decision in Burwell v. Hobby Lobby. Alito, who wrote the 5-4 majority decision, denied leaking the opinion that held that a federal law may not require a closely held commercial employer to provide health insurance coverage for contraception if that employer claims that to do so violates his or her personal religious beliefs. LGBTQ legal activists said the decision was a "dangerous and radical departure from existing law" with repercussions for LGBTQ employees. Alito told an audience in Italy this summer that attacks on religious liberty grow out of "a tendency to distrust and dislike people who are not like ourselves."

Earlier this year, a draft opinion of Dobbs v. Jackson Women's Health Organization that overturned the right to abortion, which was also written by Alito, was leaked several weeks before the decision was announced in late June. An investigation by the court has so far yielded no public announcements.

In an interesting aside, 10 transgender lawyers are scheduled to be sworn into the U.S. Supreme Court Bar just days before the 303 Creative argument. The plan to swear in transgender attorneys as a group was initiated two years ago but delayed because of the COVID pandemic. To be sworn into the Supreme Court bar, an applicant "must appear to the court to be of good moral and professional character," according to the Supreme Court's application instructions. The application asks applicants to indicate if they have ever "changed your name or been known by any name or surname other than those appearing on this application." The 10 transgender attorneys include Rook Ringer from Florida, Jesse McGrath from California, Ames Simmons from Georgia, and Zsea Ofure Bowmani from Illinois.

People can listen to the 303 Creative argument live by clicking here and then going to the Quick Links bar to access the live audio or click on the case name (303 Creative) on the court's homepage that day. People can also read the written transcripts and hear the audio recording of the argument that should be available on the court's website 90 minutes after the argument or soon thereafter.

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