The conservative-controlled Supreme Court has already attacked reproductive rights by means of Dobbs v. Jackson Women’s Health. It’s set to revoke affirmative action in Students for Fair Admissions v. Harvard. Next on its list of things to take away are LGBTQ rights.
On Monday morning, the court heard 303 Creative v. Elenis, the case conservatives will use to roll back human progress still more. As usual, the theocrats on the court can be expected to rule on the side of bigotry—in the guise of “religious freedom”—to the detriment of everybody else.
At issue is a Colorado-based website designer, Lisa Smith, who has an irrational hatred of same-sex marriage. She wants to start making marriage websites, but insists she should be able to deny this service to same-sex couples, even though no same-sex couple has asked her to design anything. It reminds me of when, during the wedding at Cana, Jesus said “You only have water? You ran out of wine? Wow. Instead of helping out, I’m ordering everybody to mock you and go home.”
The state of Colorado classifies Smith’s business as a “public accommodation,” meaning it’s a service that is open to the general public. As such, Smith falls under Colorado’s anti-discrimination statute, which makes it illegal for her to deny services to people based on their race, gender, or sexual orientation. Smith argues that complying with the anti-discrimination statute is an infringement on her free speech. Her case was taken up by the Alliance Defending Freedom (ADF), a right-wing religious organization that was last seen defending the right of a bigoted baker to deny service to same-sex couples who wanted to buy wedding cakes.
As a matter of theory, Smith’s case presents an interesting problem. First Amendment protections absolutely prevent the government from “compelling” speech. A business owner can be forced to pay taxes, but they can’t be forced to put up a sign that reads “Taxes are good and appropriate,” just as surely as I cannot be compelled to write “Donald Trump can read and has totally normal-sized hands.”
Smith and ADF would like the analysis to stop there. At oral arguments, ADF lawyer Kristen Waggoner unspooled a series of Orwellian hypotheticals purporting to demonstrate all the ways the big bad government could be allowed to force artists to say things they don’t believe if Smith doesn’t win. For instance, a Black carpenter could be compelled to make a cross for a Klu Klux Klan rally. In fact Waggoner, along with Justices Samuel Alito and Amy Coney Barrett, delighted in hypotheticals that involved Black creators being forced to adopt messages supporting the Klan. It was, frankly, ridiculous the way pro-Smith conservatives kept trying to invert the moral lines by aligning her with Black people who stand against odious bigotry, when it is Smith whose views most closely align with the KKK.
But all of the tortured hypotheticals in the world couldn’t account for the fact that the free speech analysis doesn’t stop where ADF and the conservatives want it to. Smith argues, in essence, that she’s allowed to engage in content-based discrimination: She can’t be compelled to say “gay marriages are cool.” But she doesn’t simply want to be able to discriminate through the content she creates; she also wants to be able to discriminate against LGBTQ people. She wants to be able to deny gay people the ability to frequent her business. That’s discrimination based not on content but on an immutable characteristic of some of her potential customers.
The long history of public accommodations laws says that business owners cannot do that. To put it plainly, a diner owner can absolutely tell me “I don’t like n******” when serving me lunch, but he still has to serve me lunch. He doesn’t have a free-speech objection to providing me a service that I am willing to pay for, no matter how deeply he hates me. He can be a jerk about it. He can name his business “Raisins in Potato Salad”; he can dedicate all of the sandwiches on his menu to Confederate generals and serve me on a plate emblazoned with a swastika. But he has to serve me. Smith and the Christian fundamentalists want people to believe that the creation of a marriage website is a speech act, but even if it is (and I’m being incredibly generous by calling “Wedding HTML for Dummies” a “speech act”), denying service to a customer based on their immutable characteristics is not protected speech. It’s just hate.
It would be fine for Smith to hold herself out as a bigotry-first website designer. While there was some disagreement as to just how much “creativity” goes into making a marriage website (Smith claims making a website is an act of self-expression, while Justice Sonia Sotomayor kept pointing out that the expression was the couple’s and not the website designer’s), everybody agreed that Smith couldn’t be compelled to say anything positive about the couple seeking her services. The justices broadly agreed that she could add text to her “creations” that might dissuade same-sex couples from using her services. But if those couples nonetheless wanted her services, Justices Sotomayor, Elena Kagan, and Ketanji Brown Jackson argued that Smith could not discriminate against those couples just because they’re gay.
That’s why all of the inverted Klan analogies the conservatives were trying out didn’t make any sense. A Black carpenter can refuse to make a cross for a person who wants to take it to a Klan rally. But that carpenter cannot refuse to make a cross for white people. The Klan analogy works only if you assume that every white person who would ask for a cross would only want it for a Klan rally, but I think white people are better than Alito and Barrett would have you believe.
But conservatives don’t see it that way, because they came into oral arguments determined to frame Smith’s discrimination as content-based instead of status based. Along with Alito and Barrett, Justices Clarence Thomas, Neil Gorsuch, and alleged attempted rapist Brett Kavanugh all asked questions focused on Smith’s right to refuse to work on same-sex weddings, and waved away lawyers from Colorado (and the US Department of Justice) who argued that discriminating against the “message” of same-sex marriage (that is, refusing that specific service) is the same as discriminating against LGBTQ couples looking for website designs.
And then there was Chief Justice John Roberts. Lawyers for Colorado relied heavily on a 2006 case, Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (FAIR). The issue in that case was that a bunch of law schools wanted to deny access to military recruiters on campus based on the military’s discriminatory “don’t ask, don’t tell” policy. The applicable law says that schools have to give access to military recruiters—not just allow them on the grounds, but also provide them with a room from which to conduct interviews with students—or else the government can withhold funding. The schools argued that law essentially compelled to school’s to adopt a pro-military message, and that compulsion violated the schools’ rights to free speech and free association.
Roberts, writing for a unanimous court, said no. He wrote that allowing the recruiters on-campus was not an endorsement of the recruiters’ speech, and that even though the schools had to engage in literal speech acts to comply with the law (for instance, they had to send out e-mails reminding students that the recruiters where part of the recruiting process and telling them which rooms they’d be interviewed in), such speech was incidental to following the law.
When lawyers brought up FAIR as precedent for requiring Smith to follow Colorado’s anti-discrimination law, Roberts suddenly forgot about all the speech requirements he compelled the schools to perform in FAIR, and said the case only required schools to give recruiters a room. He made it sound as if FAIR weren’t a speech case at all. FAIR requires schools to make a literal announcement when military recruiters are on campus, but Roberts pretended he couldn’t figure out why lawyers were bringing it up in a case about wedding announcements.
Everybody with a reasonable understanding of how these conservatives operate knows that this case will come down 6-3 on the side of Smith and bigotry. There’s no drama here. Conservatives accepted Smith and ADF’s framing of the case as one about message discrimination before they even got into the courtroom. The question, as always these days, is not what the conservatives will do, but how far they’ll go. There are tons of businesses that would like to discriminate against people based on their race, gender, or sexual orientation. Conservatives can effectively revert public accommodations laws back to the Jim Crow era simply by giving those business owners a way to argue that denial of services is really about free speech.
This, I believe, is part of the conservative plan to revoke the gains of the LGBTQ rights movement over the last 20 years. There might come a time when they try to overturn same-sex marriage, but for now the play will be to restrict LGBTQ couples from getting access to all the trappings of marriage. They’ll try to make it more socially acceptable, once again, to demean and degrade gay people in the normal stream of commerce. And then, after a few decades of curtailing LGBTQ rights with a thousand cuts, they’ll whip out the chainsaw and directly overturn cases like Obergefell and Lawrence v. Texas.
It’s what conservatives did to abortion rights, and what they’re doing to affirmative action. Like I said, the LGBTQ community will be the next victim of the conservative takeover of the courts.