The Last Day of Pride
On June 30, 2023—the final day of this year’s Pride month, the Supreme Court issued one of its most brutal findings. The ruling in 303 Creative LLC v. Elenis was ironically decided for the plaintiff on free speech grounds—saying that Lori Smith had the first amendment right NOT to accommodate a gay couple in producing their website because same sex unions were against her religion and she should not be compelled to provide a “customized” and “expressive” product that went against her religious beliefs.
Ariane de Vogue and Devan Cole wrote on CNN.com, “The ruling—rooted in free speech grounds–will pierce state public accommodation laws for those businesses who sell so-called “expressive” goods. It is the latest victory for religious conservatives at the high court and will alarm critics who fear the current court is setting its sights on overturning the 2015 marriage case.
“[Justice Neil] Gorsuch wrote that ‘the First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands.’ He said Colorado sought to “deny that promise.’
‘All manner of speech – from ‘pictures, films, paintings, drawings, and engravings,’ to ‘oral utterance and the printed word’ – qualify for the First Amendment’s protections; no less can hold true when it comes to speech like Ms. Smith’s conveyed over the Internet,’ Gorsuch said.
However, CNN also cites the dissent of Justice Sonia Sotomayor who said “the decision will undermine the government’s compelling interest in ensuring that all Americans have equal access to the public marketplace.
“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.”
This is deeply ironic as LGBTQ individuals have been arguing for generations on the basis of freedom of expression that they should be allowed to be who they are without fear of discrimination or penalty from the state. Now, this Supreme Court has flipped the switch in favor of…wait for it…the religious beliefs of evangelical Christians who seek to deny such expression.
What is even more galling is that there was no website, and basically not even a request to create one. Both the Associated Press and the New York Times report that 303 Creative’s Lori Smith, the plaintiff, was never actually asked to create a website by a gay couple (and that no evidence of said “gay couple” even exists) and no website was created. This raises a serious question about standing to bring the case before the Court and what harm was done by a hypothetical situation.
This is scary. But not surprising. One year ago, this partisan Court ruled against the reproductive rights of women in Dobbs v Jackson Women’s Health Organization. Justice Clarence Thomas foretold a host of rights that could also be rolled back based on the Court’s thinking in Dobbs. Don Lefevre, writing for the Lancaster (PA) News, reminds us that Justice Clarence Thomas, in a concurring opinion on Dobbs, invited the court to reconsider other topics, “including the Obergefell decision establishing the right of same-sex marriage, along with Griswold (the right to contraceptives) and Lawrence (which declared sodomy laws unconstitutional).” Is this decision a first step in those fundamental rights being threatened?
It is truly ironic that this decision was handed down on the final day of the court’s term which coincided with the last day of the month of Pride. It is just one more insult for the LGBTQ community as an out-of-control Supreme Court continues to chip, chip, chip away at the rich, vibrant, colorful fabric that represents America at its very best.
The Court can’t imagine how anonymous dark money can be political bribery yet can imagine how a theoretical future request for a business service could violate the web designer’s freedom of religious expression! Further, it can justify white men killing black kids because they fear for their possible safety. Hopefully, the Court will see that Trump’s coded mafia words to the Jan. 6 thugs are indeed directives to overthrow the election…..Someone needs to give them a lesson in communication reality. Will the corrupt Thomas overturn the Loving decision and have to get divorced or become an expat?
If I understand Kierra correctly, it sounds like she might share my view that any dispute of this nature should simply be viewed and weighed – as I believe it was in the past (?) – on a case-by-case basis. This is all so unnecessarily divisive and, as usual, originated in fear. 😔
Thank you Bob for summarizing the essence of the problem so well — these are scary times — never imagined they would rule on a hypothetical case!!!\
Nancy
I’m going to launch an unpopular opinion here but hear me out. Whenever I hear a story like this I ask myself, what if the speech being “discriminated against” was speech I didn’t like. Would I feel the same way? As a small business owner in the realm of creative services, or what, I guess might be called “expressive goods,” I would have no problem creating a wedding website for a gay couple. However, if someone wanted to hire me to create something that went against my ideological or political beliefs/alignment, I would like to have the power to turn them down. This is very different than running a restaurant or a hospital and refusing to serve or care for people based on their beliefs. Those are not “expressive services.” I would not create campaign ads for candidates I don’t support (like Trump). Nor would I want to design a website with merchandise that says “Kill All TERFs.” Both of those things exist. Both are protected. But I don’t want to have to be involved in the making of them. Therefore, I can’t say that I totally disagree with this ruling, even if I disagree personally with the plaintiff. What I disagree with is spending the courts time on a hypothetical case, which as you pointed out seems to not have standing, if there was no actual gay couple customer to be turned down in the first place. There have already been lots of cases of people having Tshirt and sticker orders rejected or cancelled because the print shop didn’t like the words they were being asked to print. Paid billboards have been taken down because someone didn’t like the message. This happens all the time and often it happens to people on the opposite ideological aisle. So, to me, this is a case of it’s okay when you do it to my enemy but not when you do it to me. In terms of Sotomayor, who I have the deepest respect for, her comment seems strange to me. Americans already don’t have “equal access to the marketplace,” due to financial status, location, internet access, etc. And a personal website design company is not “a business open to the public.” I feel like this creates a lot of fodder for the media. But in the end is really just a status quo ruling. Like I said, probably an unpopular opinion, but there you go!