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In a major setback for LGBTQ+ rights, the US Supreme Court’s (SCOTUS) conservative majority ruled on Friday (June 30) that a Christian graphic artist from Colorado, who designs wedding websites, can refuse to work with same-sex couples, AP reported.
The court ruled 6-3 for designer Lorie Smith, saying she can refuse to design websites for same-sex weddings despite a Colorado law that bars discrimination based on sexual orientation, race, gender and other characteristics. The court said forcing her to create the websites would violate her free speech rights under the Constitution’s First Amendment.
The ruling in the case, 303 Creative LLC vs Elenis, has far reaching ramifications, as per some experts, possibly undoing years of civil rights jurisprudence in the United States.
President Joe Biden said in a statement that the ruling was “disappointing”, adding that it “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.”
We take a look at the details of the case and its implications.
The case: a cake maker, a graphic designer, and gay weddings
A decade ago, baker Jack Phillips refused to bake a wedding cake for a gay couple, citing his faith as the reason. That dispute made it to the SCOTUS, which sided with Phillips in 2018. It said members of the Colorado Civil Rights Commission, who had earlier ruled in favour of the gay couple, showed prejudice toward Phillips specifically when they suggested his claims of religious freedom were made to justify discrimination.
While a victory for Phillips, the court’s decision was based on concerns unique to the case rather than deeper constitutional questions about freedom of faith and anti-discrimination. Effectively, SCOTUS kicked the can down the road for when such a dispute would inevitably arise. It already had.
In 2016, prior to SCOTUS’s judgement, Lorie Smith, a designer of websites and graphics, went to a federal court in Colorado, seeking a ruling that Colorado could not enforce the Colorado Anti-Discrimination Act (CADA). A Christian who believes that the institution of marriage is between a man and a woman, she argued that Colorado’s anti-discrimination act impeded her First Amendment right to exercise her faith and speech free of state interference.
Unlike baker Phillips, Smith went to court in anticipation of a dispute arising in the future that would pit her religious beliefs against Colorado’s anti-discrimination laws – the case was not based on any event which actually took place. When the US Court of Appeals for the 10th Circuit rejected her arguments, she went to the Supreme Court, which, in 2022, agreed to take up her case.
What is the Colorado Anti-Discrimination Act (CADA)?
CADA seeks to prevent discrimination against marginalised groups such as racial minorities or, as in this case, LGBTQ+ people. The text of the laws guarantees equal access to public accommodations, housing, and employment, regardless of a person’s disability, race, creed, colour, sex, sexual orientation (including transgender status), etc.
A place of public accommodation is any business that offers services, facilities, privileges, advantages, or accommodations to the public. This can include a wide range of businesses – restaurants, grocery stores, hospitals, etc. Lorie Smith’s business can also be classified as a public accommodation. Thus, according to CADA, if Smith makes websites for heterosexual couples on the occasion of their wedding, she must provide the same services to gay couples.
The First Amendment: Religious freedom or the freedom to discriminate?
The fault line around which 303 vs. Elenis revolves is long-standing in American society and jurisprudence. When bringing the issue to court, Lorie Smith cited her First Amendment rights.
The First Amendment of the US Constitution states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Simply put, the First Amendment is the pillar on which all freedoms in American society are enshrined.
Smith’s argument is that CADA directly impedes her right to hold and profess her religious beliefs, namely her notions on marriage. Crucially, she argues that she would happily design graphics for a LGBTQ+ customer as long as she does not have to profess something she does not believe in. Stating that designing a custom wedding website for a same-sex couple would be akin to expressing approval of their marriage itself, Smith argues that forcing her to provide such a service to gay couples would be against her free speech.
On the other hand, Colorado denies that CADA impedes Smith’s speech itself. Rather, it regulates “sales” in order to prevent discrimination in the market place. Such discrimination, the state explains, can create “wide-ranging” injury for especially vulnerable individuals.
The state is basically saying that Smith is under no obligation to offer a specific kind of service that would go against her personal beliefs. However, if she does offer a service to the public, she must also offer it to same-sex couples and cannot discriminate against them on the basis of her religious beliefs. Thus, CADA regulates conduct rather than speech itself, and it is well within the rights of the state to protect its citizens from discriminatory conduct.
Conservative-leaning SCOTUS’s decision
Since the 2018 judgement that affirmed the rights of LGBTQ+ people while ruling in favour of Phillips on account of specificities of the case, the SCOTUS has undergone a major change. Liberal justices Anthony Kennedy and Ruth Bader Ginsberg have since been replaced by conservatives Brett Kavanaugh and Amy Coney Barret, giving a firm 6-3 majority to the conservatives in US’s apex judicial body.
This conservative majority has already led to some extremely contentious decisions by the Supreme Court, notably with regards to abortion rights, gun laws and just day before, race and affirmative action. The decision in 303 vs Elenis follows the same trend.
Justice Neil Gorsuch wrote for the court’s six conservative justices 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.”
Gorsuch said that a ruling against Smith would allow the government “to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty.” For example, a gay website designer could be forced to design websites for an organization that advocates against same-sex marriage, he wrote.
Crucially, the Court made a distinction between different kinds of businesses, where this ruling will be applicable. It suggested that artists, photographers, videographers and writers are among those who can refuse to offer what the court called ‘expressive services’ if doing so would run contrary to their beliefs. But the same would not apply for other businesses not engaged in speech and therefore not covered by the First Amendment, such as restaurants and hotels.’
“Disagreement isn’t discrimination, and the government can’t mislabel speech as discrimination to censor it,” Kristen Waggoner, the lawyer appearing for Lorie Smith, said in a statement on Friday.
Far reaching implications
However, the court’s dissenting liberal justices led by Justice Sonia Sotomayor warned that the decision will allow a range of businesses to discriminate.
“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,” Sotomayor wrote in a dissent joined by Justice Elena Kagan and Justice Ketanji Brown Jackson. She added that the decision’s logic “cannot be limited to discrimination on the basis of sexual orientation or gender identity.”
This sentiment was also echoed by other critics.
“The worry is that this provides a green light to any business owner that they can refuse service to any person on the basis of their identity, whether they’re gay or lesbian, or Jewish or Black, or anything, because they have an objection to those sorts of people being in their business,” Katherine Franke, a professor at Columbia Law School, told CNN.
Critics also lambasted the court for citing an arbitrary and unclear distinction between businesses which provide ‘expressive services’ and those which do not.
“I don’t think the court was clear at all. I think it sort of invented categories that don’t exist in commerce. The idea of ‘customized’ or ‘expressive’ services are not categories,” Elizabeth Sepper, a University of Texas Law professor and expert on public accommodations laws, told CNN.
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