June 30, 2023
In the battle of gay rights vs free speech – the Supreme Court today, sided with freedom of speech diluting the legal protections for the LGBTQ+ community. But that decision raises a lot of questions about when first amendment rights outweigh the rights of a protected class.
This morning the Justices issued a bombshell ruling in the 303 Creative vs Elenis case. In that case Lorie Smith – a woman who wanted to start creating websites sued the state of Colorado saying the state’s law that mandates all public businesses must be open to everyone violates her first amendment rights because she doesn’t want to create custom wedding websites for gay couples. She says creating those custom websites is her art – and she doesn’t want to be forced to create art for something she doesn’t believe in.
In a 6 to 3 ruling, with all conservatives in the majority — Justice Gorsuch agreed saying — the first amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees.
But this ruling could open a pandora’s box when it comes to when businesses can refuse service to a protected class. Under title seven of the civil rights act, it’s illegal to discriminate based on sexual orientation. So how does this ruling fit in with that law? Well, the ruling does not grant businesses a widespread license to turn away LGBTQ+ couples. Instead, it creates a carve-out for business owners creating and selling art to reject specific projects that go against their strongly held beliefs.
But that’s where the pandoras box opens — what about a caterer? Would creating wedding meals be considered an art form? Could that cater refuse service to a gay couple saying that would violate their first amendment right? When does it stop?
The court doesn’t answer that question – but the majority opinion says all that really matters is that the government isn’t telling people or businesses how to express themselves. Justice Gorsuch writes — consistent with the first amendment, the nation’s answer is tolerance, not coercion. 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.
The three liberal justices vehemently disagreed with this decision. Justice Sotomayor wrote in her dissent — “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.”
Read the ruling here.
