A supporter of LGBTQ+ rights waves a "Progress Pride" flag outside the U.S. Supreme Court in Washington, D.C. on June 26, 2023.

(Photo: Anna Moneymaker/Getty Images)

Right-Wing Supreme Court OKs Bigotry Against Gay Couples Seeking Services

"Today," wrote Justice Sonia Sotomayor in her dissent, "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."

In a major blow to LGBTQ+ rights, the U.S. Supreme Court on Friday sided with an evangelical Christian web designer who refuses to provide services for same-sex weddings despite a state law banning discrimination against gay people.

In its 6-3 ruling in 303 Creative LLC v. Elenis, the high court's right-wing majority opened the door for businesses to discriminate in the name of "free speech."

The court ruled that Colorado's anti-discrimination law violates web designer Lorie Smith's First Amendment right to free speech by compelling her to create wedding websites for same-sex couples. Even though no same-sex couple ever sought her services, Smith challenged the statute because it contradicts her religious beliefs.

"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," Justice Neil Gorsuch wrote for the majority.

In her dissent, Justice Sonia Sotomayor—who was joined by fellow liberals Elena Kagan and Ketanji Brown Jackson—wrote that "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 continued:

Today is a sad day in American constitutional law and in the lives of LGBT people... By issuing this new license to discriminate in a case brought by a company that seeks to deny same-sex couples the full and equal enjoyment of its services, the immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status. In this way, the decision itself inflicts a kind of stigmatic harm, on top of any harm caused by denials of service. The opinion of the court is, quite literally, a notice that reads: Some services may be denied to same-sex couples.

Around the country, there has been a backlash to the movement for liberty and equality for gender and sexual minorities. New forms of inclusion have been met with reactionary exclusion. This is heartbreaking. Sadly, it is also familiar. When the civil rights and women's rights movements sought equality in public life, some public establishments refused. Some even claimed, based on sincere religious beliefs, constitutional rights to discriminate. The brave justices who once sat on this court decisively rejected those claims.

University of Texas at Austin School of Law constitutional law professor Elizabeth Sepper, who co-authored an amicus brief in support of the state of Colorado in the case, toldColorado Public Radio that the case should never have been brought before the Supreme Court because no same-sex couple ever asked Smith to create a wedding website.

"A deep irony of this case because it should have been rejected because there is no live dispute," Sepper said. "Because this business does not do wedding services, has never designed a website for a wedding and therefore doesn't face a live circumstance where a same-sex couple has asked for a wedding website."

LGBTQ+ rights defenders excoriated the ruling.

The Human Rights Campaign—which earlier this month declared a national state of emergency for LGBTQ+ people amid a torrent of discriminatory Republican legislation—called the decision "a dangerous step backward and gives some businesses the license to discriminate."

Shelby Chestnut, executive director of the Transgender Law Center, said in a statement that "the reckless ruling today in 303 Creative reminds us of the importance of building and leaning on community in moments of immense difficulty—today we are in solidarity with our family, chosen family, friends, co-workers, and the vast majority of people in this country who believe all of us deserve dignity and respect."

"This decision will have immediate consequences, especially given the actions divisive politicians have taken across the country to control us and put us in boxes by denying us access to medical care, abortions, and access to a robust public education system that teaches the full history of this country," Chestnut added.

Rev. Paul Brandeis Raushenbush, president and chief executive of the Interfaith Alliance, asserted that "this decision will have a devastating ripple effect across the country by creating a permission structure, backed by the force of law, to discriminate and endanger LGBTQ+ people and trans youth who are already so at risk,"

David Cole, legal director for the American Civil Liberties Union, also condemned the ruling.

The court's ruling, said Cole, "opens the door to any business that claims to provide customized services to discriminate against historically-marginalized groups."

Calling the decision "fundamentally misguided," he said the ACLU would "continue to fight to defend laws against discrimination from those who seek a license to discriminate."

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