The Supreme Court Has Kicked the Door Wide Open to Jim Crow–Style Bigotry

The Supreme Court Has Kicked the Door Wide Open to Jim Crow–Style Bigotry

The Supreme Court Has Kicked the Door Wide Open to Jim Crow–Style Bigotry

The court’s conservatives used a case literally based on a homophobe’s fantasies to blow a huge hole in our antidiscrimination laws and revive the spirit of Plessy v. Ferguson.


The conservative cultural movement is based on lies, misinformation, and fantasies. That’s what makes these people so odious when they crawl out from under their rocks and present themselves in the public square: They make stuff up and then demand that their delusions be given pride of place in our objective reality. (There simply is no woke, trans, race-critical monster hiding under their beds who comes out at night and jabs their children with a vaccine that makes them gay. I refuse to pretend otherwise.)

The problem, of course, is that this fictional conservative universe has very real purchase in the political sphere, where a loud and vocal minority of voters insist on imposing their fever dreams on the rest of us. And, most consequentially of all, it now dominates our legal sphere, where we are saddled by six conservative justices on the Supreme Court who are more motivated by what they saw on Fox News last night than by the laws, the facts, or the Constitution.

I’d argue that lying and accepting lies is more dangerous when it comes from the Supreme Court. Voters can reject politicians like Ron DeSantis who are obsessed with the genitalia of high school students. But there is very little the people can do about justices who are appointed for life and give themselves veto power over the rest of government.

The latest example of the danger of a conservative court untethered from facts came on Friday, the last day of the Supreme Court’s current term, in a case called 303 Creative v. Elenis. I’d like to tell you about the “facts” of this case, but there basically are none. Instead, 303 Creative is predicated on a fairy tale.

Once upon a time, a woman named Lorie Smith had a wonderful idea: Maybe, someday, she should start a graphic design business that would make wedding websites for couples announcing their nuptials. But Smith’s blissful dreams were torn asunder when she remembered a chilling truth: Gay people both exist and sometimes fall in love and want to get married. What would happen, Smith wondered, if one of those gay people offered to pay for her wedding website services as if they had the same rights as a straight couple? Would she have to accept their gay money and render the services she was thinking of offering to the general public? Smith asked her imaginary friend, whom she called “Jesus,” for advice. Smith’s Jesus told her that she should not serve gay couples, because only those sufficiently motivated by hate and bigotry are allowed to hang out with him after they choke to death on their own bile.

Emboldened by her imaginary conversation, Smith asked the state of Colorado if she could one day start a business that explicitly discriminated against members of the LGBTQ community. But state officials referred her to the Colorado Anti-Discrimination Act (CADA) and told her that denying services to people based on their sexual orientation was illegal. Smith was confused. How could the imagined directives of her made-up friend be “illegal”? Smith simply wanted to be bigoted and hateful in accordance with her deeply held beliefs. How could the basic laws of a pluralistic society stop her from doing that?

All seemed lost. But then, a miracle occurred. The Alliance Defending Freedom, a secretive order of hobgoblins whose members vow to destroy the world of secular law so bigots can be free to discriminate to their malformed hearts’ content, found out about Smith’s plight. And the ADF told her that the hypothetical threat to her homophobia that she had invented in her own mind was so important that she should take legal action.

So Smith and the ADF sued the state of Colorado, asking the courts to issue an advisory opinion about whether Smith was allowed to discriminate in a business she didn’t have, toward customers who didn’t ask her to do anything, because they didn’t exist. And the suit made it all the way to the Supreme Court.

The Supreme Court is not supposed to issue advisory opinions. It is not supposed to rule on fairy tales. The court, according to the Constitution, is supposed to limit itself to ruling only on “cases or controversies.” That means it is supposed to address only real issues in the real world, where real litigants suffered real harm. But none of the issues in 303 Creative are connected to real-world events. Smith’s business is theoretical; her customers do not exist; and the bigotry she longs to visit upon some of them hasn’t actually happened yet. In the legal jargon, Smith’s case should have been dismissed for lack of “ripeness,” meaning that whatever issues Smith thinks she’s talking about are not yet ready for judicial review.

But, as I said, the goal of the conservative movement is to make their dreams our nightmares. The Supreme Court did hear Smith’s case, and since there were no real factual issues at play, 303 Creative was turned into a canvas for Neil Gorsuch and the five conservatives who joined his majority opinion to simply make up a set of facts so they could get the outcome they desired.

What did the conservatives desire? Well, Gorsuch and the conservatives wanted to pierce a hole in the antidiscrimination “public accommodation” laws and rulings that were erected in the 1960s and ’70s to dismantle Jim Crow segregation. Public accommodation laws are why people who look like me can go to a restaurant or rent a hotel room regardless of whether the proprietor “takes kindly” to my kind there. We’ve tried living without these laws, and what we got was an American apartheid system, so they’re kind of important.

But conservatives don’t like public accommodation laws, or antidiscrimination laws generally, because they prevent white folks from doing whatever the hell they want. In particular, the court saw the Smith case as a chance to weaken these laws to make things easier for bigots who claim their discrimination is motivated by God instead of genetics. So that’s exactly what they did. The 303 Creative ruling gives every segregationist who never gave up hope, every bigot who keeps hate close to their heart, and every neo-Nazi who pines for a whites-only nation a brand new tool to fight for the legally protected discrimination that they yearn for so deeply.

That tool can be found in Gorsuch’s use of a gaping pro-discrimination loophole. He decided that Smith’s wedding website—which, lest we forget, is not real—was a (hypothetically) “creative” or “expressive” business, and that because of that, she was not obliged to serve LGBTQ people.

So now, bigoted business owners need only say that their business is “creative” and their bigotry is motivated by religion, and the Supreme Court will entertain their case. (Well, the bigotry better be motivated by a “Christian” religion, to prevail in front of this court. I highly doubt that the justices will countenance bigotry allegedly motivated by the tenets of a non-Christian religion.)

As Gorsuch no doubt hoped, most of the white cisgender male debate revolves around the first prong of the court’s new test: what counts as a “creative” business. There’s no great answer, because the court decided this case based on wishes instead of facts. Is a marriage announcement design business truly creative? Nobody knows: Smith, I repeat once again, does not have such a business, so she can establish no factual record about what she actually does, and no gay couples asked for her services, so they can’t tell you what she refused to do. Actually, scratch that: According to a story Smith randomly started telling in the middle of her case’s legal proceeding, a gay guy named Stewart did ask for her wedding website services one time. The only problem with that is that The New Republic called Stewart up and found out that he is not gay, has been married to a woman for years, never contacted Smith, and has no idea how he wound up involved in this. So technically, no gay people have tried to contact Smith apart from the not-actually-gay person whom she miraculously remembered partway through the case.

Fortunately for Smith, none of this troubled Gorsuch and company at all. He was happy to just make it all up alongside her. Extrapolating about what he might make up next is folly. If Gorsuch pounds the sand in Africa. will it cause a hurricane in the mid-Atlantic? Maybe. Who knows?

Of course, the confusion is the point, and part of the victory the court handed out to the bigots. Because now they can presumptively deny services to members of the LGBTQ community knowing that most people, most of the time, won’t even attempt to make an actual Supreme Court case out of the denial of basic services. Most people will suffer an assault on their human dignity in silence, instead of calling in the lawyers and pausing their whole lives to address the insult.

There are already a host of bigoted photographers who will not take pictures of a gay wedding, bigoted bands who will not play at a gay wedding, and bigoted florists who will argue that putting a centerpiece on a table violates their religion if the flowers make a gay couple happy. Tomorrow, thanks to this ruling, they’ll be joined by bigoted jewelers who claim fitting a rock into a band is a “creative” enterprise, DJs who say  their creative mix of playing “Unchained Melody” followed by the macarena should only be appreciated by straight couples, and caterers who say placing crab atop a cracker is “art.”

If that’s not bad enough (and it really should be bad enough), you’d be a fool to think that these indignities will be limited to the LGBTQ community and their wedding celebrations. Gorsuch took pains to say that he still believes in public accommodation laws when free speech is not implicated, but Gorsuch’s whites-only version of history has either blinded him to—or made him willfully ignorant of—the creativity used by whites to support all kinds of injustice.

Every bigot, from a car mechanic to a “sandwich artist” at Subway, will now have an opportunity to claim that their business is either “creative” or a “speech act” that cannot be subjected to normal antidiscrimination laws. Who will tell them they’re wrong? Who will stop a chef from arguing that their culinary concoctions can only be enjoyed by white people? Who will stop the carpenter who claims that woodworking is an artistic speech act and only white people deserve doors?

Not Neil Gorsuch—he’s making this stuff up as he goes along. Not the Supreme Court—the conservatives want to make the world safe for bigots, not fair for everybody else.

I’d like to think that 303 Creative will one day be reviled in the same manner as the decision that is its spiritual predecessor, Plessy v. Ferguson. Unlike Gorsuch, I do not think bigotry gets better if Jesus orders you to do it.

But what 303 Creative shows is that the forces that believe in the Plessy majority’s denial of services never really went away. They were never really defeated. They just waited, and patiently reconstructed the Supreme Court until it would once again protect the rights of bigoted business owners determined to deny services to people they hate.

Maybe the dream of a pluralistic society based on equality and fairness was the real fairy tale all along.

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Katrina vanden Heuvel
Editorial Director and Publisher, The Nation

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