Supreme Court Uses Bogus Case to Open Pandora’s Box of Discrimination

The Supreme Court ruled Friday that a Colorado anti-discrimination law violates the First Amendment free speech rights of a website designer who doesn’t want to make wedding websites for same-sex couples because she objects to marriage equality. But the entire case is a farce, because the designer has never made a single wedding website and thereby hadn’t been sanctioned by the state—and she may have even lied about a gay couple ever requesting her services. But none of that stopped the conservative supermajority from using a case brought by a notorious Christian legal firm to open a literal Pandora’s box of discrimination.

The opinion in 303 Creative v. Elenis was 6-3, with Justice Neil Gorsuch writing the majority. Gorsuch argued that the Constitution bars the Colorado from “forcing a website designer to create expressive designs speaking messages with which the designer disagrees.” Justice Sonia Sotomayor authored the powerful dissent—joined by Elena Kagan and Ketanji Brown Jackson—in which she wrote that “the immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status.”

Sotomayor added that the decision marks the first time in the court’s history that it said a business open to the public has a constitutional right to refuse to serve members of a protected class—despite the fact that “Our Constitution contains no right to refuse service to a disfavored group.” She also noted that the opinion comes at a time of significant anti-LGBTQ backlash. “Around the country, there has been a backlash to the movement for liberty and equality for gender and sexual minorities,” she wrote. “New forms of inclusion have been met with reactionary exclusion. This is heartbreaking. Sadly, it is also familiar.”

Sotomayor pointed out that the political context of the case means “the outcome is even more distressing.”

Advocates had warned that this case was about much, much more than LGBTQ rights. Sotomayor underscored that fact in chilling detail, noting how businesses wouldn’t even need a religious objection to refuse people based on race, disability status, and more, because this case was brought on First Amendment grounds. She wrote:

The decision threatens to balkanize the market and to allow the exclusion of other groups from many services. A website designer could equally refuse to create a wedding website for an interracial couple, for example. How quickly we forget that opposition to interracial marriage was often because “‘Almighty God. . . did not intend for the races to mix.’” Loving v. Virginia, 388 U. S. 1, 3 (1967). Yet the reason for discrimination need not even be religious, as this case arises under the Free Speech Clause. A stationer could refuse to sell a birth announcement for a disabled couple because she opposes their having a child. A large retail store could reserve its family portrait services for “traditional” families. And so on.

She argues that the decision creates “social castes,” like segregation under Jim Crow. “The unattractive lesson of the majority opinion is this: What’s mine is mine, and what’s yours is yours. The lesson of the history of public accommodation laws is altogether different. It is that in a free and democratic society, there can be no social castes. And for that to be true, it must be true in the public market.”

Gorsuch waves away these claims in the majority, writing, “The dissent even suggests that our decision today is akin to endorsing a ‘separate but equal’ regime that would allow law firms to refuse women admission into partnership, restaurants to deny service to Black Americans, or businesses seeking employees to post something like a ‘White Applicants Only’ sign. Pure fiction all.” Gorsuch is basically claiming that the liberal women are being hysterical.

Sarah Kate Ellis, the CEO of GLAAD, said in a statement that the decision “will bring harm and stigma to LGBTQ families and is yet another example of a Court that is out of touch with the supermajority of Americans who believe in fundamental freedoms and know that discrimination is wrong.”

Back to how we even got to this horrific ruling: Lorie Smith is a Colorado website designer who sued the state over its anti-discrimination law because she claimed it would make her accept gay clients. Again, she doesn’t make wedding websites, and it appears no same-sex couple has ever asked her to do so. Smith is represented in the case by rabidly anti-LGBTQ Christian legal organization Alliance Defending Freedom, the same group behind the lawsuit that overturned Roe v. Wade and, and the active litigation over the abortion pill and transgender athletes in school sports. ADF also litigated 2018’s Masterpiece Cakeshop, and they didn’t get the ruling against Colorado they wanted, so they took another shot with Smith. (303 Creative is the same case where Justice Samuel Alito asked a hypothetical question that he thought was a stunning checkmate to libs: Does the Colorado law mean that a Black Santa photography business cannot refuse “a child who’s dressed up in a Ku Klux Klan outfit?” The state’s lawyer said of course it can, because being a KKK supporter isn’t a protected class like race, sex, gender, or disability status.)

Ellis said the case was “part of a coordinated effort from groups like the Alliance Defending Freedom to leverage corrupt, extremist justices to roll back rights of marginalized Americans.”

And while today’s absurd decision is nominally about businesses being able to refuse same-sex couples on free speech grounds, no one should think for a second that groups like ADF don’t have their sights set on overturning or otherwise gutting marriage equality. Almost exactly a year ago, Justice Clarence Thomas threw out the welcome mat for challenges to the 2015 case Obergefell v. Hodges. Alliance Defending Freedom isn’t going to stop here, and this Supreme Court seems all too eager to do their bidding.