The highest court in the land was coming in hot at the end of the term. They issued groundbreaking (not in a good way) decisions regarding gay rights, affirmative action, and voting rights. Even more broadly, they issued decisions that continue to suggest they will not be bound by precedent or common sense. Any bright spots? The absolutely boss women on this Court (not you, ACB). I had initially planned to write one post covering three key decisions. But as it turns out, I have a lot to say (and a lot of feelings) on each one. Let's start with 303 Creative.
303 Creative LLC v. Elenis. The final decision issued by the Court this term was also one of the most painful (thank you, Neil Gorsuch). The plaintiff in this case, Lorie Smith, runs a graphic design business in Colorado. Colorado has an Anti-Discrimination statute that prevents “public accommodations” from discriminating against people. What are public accommodations? They are public-facing businesses. This makes sense, right? If you have a business that wants to offer its services up to the public, you aren’t allowed to deny services to say, Black people, women, people with disabilities, or LGBTQ+ people. Okay, good.
So what’s the problem? Ms. Smith decided she wanted to expand her business to include creating wedding websites, but she was concerned the Colorado law would force her to create websites for same-sex couples. That’s right, Lorie, it would. Let’s put aside for a moment the fact that Ms. Smith had not yet suffered any harm. She had not been asked to create a website for a same-sex couple (that was alleged but later turned out to be false), nor had she been inflicted with any penalty by the State of Colorado. For all you lawyers out there, you see where this is going. Standing! You need to have suffered a harm to bring a claim to redress that harm. But whatever.
This all seems pretty straightforward. In the U.S., LGBTQ+ individuals are a protected class. You cannot discriminate on the basis of sexual orientation. So we’re done here, right? Wrong. The Court actually decided in favor of Lorie Smith, finding that she was fully entitled to discriminate against same-sex couples and refuse to create wedding websites for them (just in case anyone ever asked).
How did they reach this conclusion? That most righteous of provisions: the First Amendment! Designing a website is a creative pursuit and involves Ms. Smith’s “speech.” So, voilà, protected. This is actually not how the First Amendment works. It does not automatically strike down any law that might result in some limitation on a person's speech. In general, it only invalidates laws that are directed at limiting that speech or expression or unnecessarily limit speech. No one could with a straight face (although the majority does, and presumably with a straight face because they are a dour lot—except when Justice Alito is making jokes from the bench about Black Santas or suggesting Justice Elena Kagan trolls infidelity websites . . . because that’s appropriate and oh so funny), say Colorado's law was directed at speech. It was directed at ensuring all people would be treated equally when going about their business.
But what about Equal Protection? That's still a thing, right? Not here! Ms. Smith isn’t discriminating against gay people—she would gladly create a wedding website for a gay man . . . as long as he was purchasing that wedding website to celebrate a heterosexual union. It’s the act of marriage—not their status as gay people. Sigh. Dear Neil et al, Discriminating against people who want to enter into a same-sex marriage is the same thing(!) as discriminating against people who, if they got married, would want it to be with someone of the same sex. Refusing to acknowledge this is, as Justice Sotomayor points out, embarrassing and shameful.
If this case sounds familiar, it is! Didn’t we just go through this already a few years ago with the baker? We did! Just five short years ago the same Court (different Justices) issued a decision rejecting this argument regarding the exact same Colorado statute from a baker who didn’t want to make cakes for same-sex weddings. The difference? Well, this is speech after all, not a stupid cake. Sure, but so what? The Colorado law isn’t restricting what Lorie puts on her wedding websites, it’s just requiring that, whatever websites she creates, she has to offer to everyone. She can’t create a Save The Date website for a straight couple and refuse to create the exact same website for same-sex couple, right?!? No, wrong, according to Justices Gorsuch, Barrett, Thomas, Alito, and Kavanaugh, and Chief Justice Roberts. We’re a religious bunch, so precedent be damned (see what I did there).
Justice Sotomayor writes a blistering dissent, joined by Justices Jackson and Kagan. She points out, with great detail, legal support, and humanity, the obvious problems with the majority’s decision. She gives a lengthy account of the history behind public accommodations laws and why they are so vital. These laws were prompted by discrimination against Black Americans, but were later used to prevent ongoing and previously accepted discrimination against women, people with disabilities, and LGBTQ+ people. She also sets out just some of the obvious implications of this decision. If Lorie Smith can refuse service to gay couples because her “speech” is protected, she can just as well refuse service to interracial couples. Why not? They are protected classes but this is her right! And not just Lorie Smith. Anyone who publicly sells services that are “expressive” is free to discriminate. A photographer could put up a sign saying it will not photograph interracial families or the child of a same-sex couple. The majority did not base its decision in religious freedom, so all of this is legitimately on the table. The Barretts and Thomases better hope their family photographers aren’t secret bigots. But if they are, hey, that’s okay, speech speech speech!
I’ll come clean. Putting law aside, I’ve always had a really hard time with anyone arguing against same-sex marriage on religious grounds. Marriage as we think about it under the Constitution is a civil act. It is a union that provides certain rights under state and federal laws. Period. No one has ever argued that individual churches have to marry anyone that comes through the door. That’s not it. People have conflated the concept of “marriage” in a religious sense (completely not at issue here) with “marriage” as a civil right. Same word, two different meanings. Also, you know, people should all be treated the same and if they are consenting adults that want to be married, go for it. Even with this bias of mine, they were wrong on the law. Wrong wrong wrong wrong wrong.
I tried to put myself in the shoes of this business owner (not in hating gays, but in wanting to be able to choose who we take on as clients). For example, if Lorie Smith came to us and wanted us to represent her business could we say no? Absolutely! Why? Because people who are opposed to same-sex marriage are not part of a protected class. They have not historically been enslaved or denied equal economic or social rights. Also, we have a no a**holes policy (also not a protected class). And in case you’re thinking that we discriminate against men, think again! We work with companies that are aligned with our mission of creating greater capital equity, whether they are led by women or men. Shoutout to all our male clients who are out there fighting the good fight.
Lead Villain: Neil Gorsuch
Lead Heroine: Sonia Sotomayor
Winners: People who don’t like gays, people of color, people with disabilities, women, or immigrants.
Favorite Quote: “Time and again, businesses and other commercial entities have claimed constitutional rights to discriminate. And time and again, this Court has courageously stood up to those claims—until today. Today, the Court shrinks.” (Sotomayor, J., dissenting)
If you want to hear more on this from much more qualified constitutional scholars than myself, check out the relevant episodes from Strict Scrutiny (Student Debt Relief Bad, Bigotry Good) and Amicus (MAGA SCOTUS Is Back).