The US Supreme Court decision that barred Colorado from charging a website designer with violating that state’s anti-discrimination law if she placed an announcement on her site that said she would not serve same sex couples who are marrying rocked the LGBTQ community, but what remains unclear is if other businesses that have creative aspects to their work can also refuse to serve LGBTQ people and community organizations.
“While the Court’s holding is narrow and will apply only to a very small number of businesses, the dissenting justices rightly stress that the decision creates an unprecedented exception to non-discrimination laws,” Imani Rupert-Gordon, the executive director of the National Center for Lesbian Rights (NCLR), said in a statement. NCLR has litigated cases before the US Supreme Court and in state and other federal courts.
Other leading LGBTQ groups issued statements in which they decried the court’s decision, but also expressed the view that the impact of the decision would be limited. The leading LGBTQ groups sometimes discuss how issues will be framed and release statements that are similar.
“Despite our opponents claiming this is a major victory, this ruling does not give unfettered power to discriminate,” Kelley Robinson, the president of the Human Rights Campaign President (HRC), the nation’s largest LGBTQ political organization, said in a statement. “This decision does not mean that any LGBTQ+ person can be discriminated against in housing, employment or banking — those protections remain enshrined with federal law.”
Jennifer Pizer, the chief legal officer at Lambda Legal, an LGBTQ rights group that has litigated cases in state and federal courts and before the US Supreme Court, also saw the decision as lacking a broad reach.
“Unlike yesterday’s affirmative action travesty, today’s smug attack on civil rights law will have limited practical impact in the marketplace because few commercial services involve original artwork and pure speech offered as limited commissions,” Pizer said in a statement on June 30. Pizer continued, saying the decision relied on “limited, uncommon facts” and given “the uniquely creative service at issue here, the impact is likely to be minimal.”
On June 30, the US Supreme Court reversed a decision by the 10th Circuit Court of Appeals that found that Lorie Smith, who is a Christian and the sole owner of 303 Creative, would violate Colorado’s anti-discrimination law if she told visitors to her website that she would not create websites for marriages of same sex couples.
In an opinion by Neil Gorsuch, a Trump appointee, the US Supreme Court found that Colorado would be forcing Smith to produce speech that violates her views as a Christian and that would violate her First Amendment rights. Gorsuch was joined by John Roberts, the chief justice, Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett, all associate justices and right wingers. Associate justices Sonia Sotomayor, Ketanji Brown Jackson, and Elena Kagan dissented, with Sotomayor authoring the opinion.
The decision could mean that any business that engages in what might be described as expressive conduct to create its products could refuse to serve LGBTQ people. In recent years, a florist, bakers, calligraphers, and photographers have cited their religious views in refusing to serve same sex couples who are marrying or an LGBTQ organization. At least one company that makes custom t-shirts and other apparel has refused service to an LGBTQ group. The reach of this decision remains undefined, but it could be broad. Others saw a greater threat to the LGBTQ community.
“Today’s negative decision is a dangerous blow to LGBTQ communities across the country,” Allen Morris, the policy director at the National LGBTQ Task Force Action Fund, said in a statement. “This decision sends a hateful message and sets a precedent that encourages businesses to discriminate against LGBTQ people…Religion is being weaponized to scapegoat LGBTQ communities and roll back key civil rights that impact everyone.”
Out Leadership, which promotes equality in the workplace around the globe, saw the decision as placing no restrictions on its scope. In an unsigned statement, the group wrote, “The decision has no limiting principle on what constitutes creative speech…What services are excluded by this ruling? Are meals served in restaurants the creative speech of their chefs? Is your barista engaging in creative speech when they design your latte foam art? Where does the discrimination end?”
Some groups were as concerned about this decision as they were about current attacks on the liberties of transgender adults, teens, and children and their parents and censorship by state governments that bans books with LGBTQ content. The future looks like it will be a tough fight, as well.
“Do not be fooled; this case was about far more than wedding websites for LGBTQ couples, it’s about chipping away at our rights one small piece at a time,” said David Brown, the legal director at the Transgender Legal Defense and Education Fund (TLDEF). “Across the country, hundreds of bills have been introduced targeting transgender, non-binary, and queer people for mistreatment and discrimination and we will continue to fight for the ability of trans and non-binary people to participate fully and fairly in every aspect of public life.”
Brown also said in the statement that it was “important to note the limits of the decision” and that it only “applies to those who sell their original and tailored, expressive service while carefully vetting each project for alignment with their own views.”
It was the Americans United for Separation of Church and State that was the loudest in warning about the future.
“This court continues to advance the agenda of religious extremists who are trying to force all of us to live by their narrow beliefs,” Rachel Laser, the president and CEO of the group, said in a statement. “When the court abolished the nationwide right to abortion last year, we warned LGBTQ rights were their next target. And here we are. Religious extremists and their political allies are willing to destroy our democracy to advance Christian Nationalism.”