With rights advocates rallying outside the U.S. Supreme Court on Monday, the right-wing majority of the court appeared poised to rule in favor of a web designer who aims to discriminate against LGBTQ+ couples when she creates wedding websites, as the justices heard arguments in the case 303 Creative LLC v. Elenis.
The court’s six right-wing justices asked a number of pointed questions of Colorado Solicitor General Eric Olson and the state’s principal deputy solicitor general, Brian Fletcher, as they defended Colorado’s public accommodation law.
The line of questioning suggested they believe the plaintiff, Lorie Smith, should legally be permitted to exclude LGBTQ+ couples from using her services—raising questions about what other groups they believe Smith’s business should be allowed to discriminate against, said rights advocates.
Colorado’s statute makes it one of nearly two dozen states which protect people from being refused services on the basis of their gender identity or sexual orientation, and has been targeted by the Alliance Defending Freedom (ADF)—the right-wing group that brought the case and others dealing with LGBTQ+ rights to the Supreme Court—as a law that violates the First Amendment.
A number of court observers noted before the arguments were presented Monday that Smith filed her lawsuit against the state in 2016 preemptively, not because she had received a request to create a wedding website for a same-sex couple.
With a complaint like that, you might be fooled into thinking that someone had asked 303 Creative to build a custom wedding website for a same-sex couple, but no. Nobody has. The design company doesn’t even make websites for weddings—but it wants to.— Rewire News Group (@RewireNewsGroup) December 2, 2022
“This lawsuit was ginned up by a law firm—Alliance Defending Freedom—that has been labeled by the Southern Poverty Law Center as an anti-LGBTQ hate group,” said Rewire News Group. “They are on the frontlines when it comes to wielding the First Amendment as a weapon to discriminate against LGBTQ people.”
The NAACP Legal Defense Fund added that the lawsuit “should be seen as part of the dangerous larger effort now underway to shut LGBTQ+ people out of public spaces more broadly.”
The court’s right-wing justices put forward a number of hypotheticals. Justices Samuel Alito and Brett Kavanaugh asked whether a victory for Colorado in the case could allow the state to then compel a speechwriter to write a speech going against their “most deeply held convictions.”
When Fletcher answered that speechwriting would likely not be covered by the public accommodation law, Kavanaugh said, “I mean, that’s what states could do.”
Alito also compared LGBTQ+ couples’ push for equal rights in public spaces to “a Ku Klux Klan outfit,” asking whether a Black Santa Claus at a shopping mall should be legally required to pose for a picture with a child wearing a KKK robe.
“No, because Ku Klux Klan outfits are not protected characteristics under public accommodation laws,” said Olson.
The comparison represented “a despicable new low for [Alito] and the Supreme Court,” said activist Christine Pelosi.
“Justice” Alito comparing LGBTQ+ families to the KKK is a despicable new low for him and the Supreme Court.— Christine Pelosi (@sfpelosi) December 5, 2022
He is deliberately demonizing LGBTQ+ Americans and mainstreaming the Klan with a false equivalence far more sinister than gaslighting — it’s criminalizing homosexuality. https://t.co/oPBC7J9vqW
Justice Neil Gorsuch also appeared ready to side with Smith, repeating views he stated in 2017 when the court heard Masterpiece Cakeshop v. Colorado Civil Rights Commission—another case in which Kristen Waggoner, Smith’s attorney, argued in favor of a business being permitted to turn away a gay couple.
Compelling businesses to comply with anti-discrimination laws is synonymous with forcing business owners to undergo “reeducation training,” Gorsuch told Olson, prompting the solicitor general’s strong disagreement.
Alito: JDate … is a dating service, I gather, for Jewish people.— Mark Joseph Stern (@mjs_DC) December 5, 2022
Kagan: It is.
Alito: Maybe Justice Kagan will also be familiar with the next website I'm going to mention … https://t.co/zwd7n39Msh. pic.twitter.com/Y9v9xTBoIO
“It does not bode well for the future of civil rights law that Gorsuch believes a state imposes ‘reeducation training’ on employers when it reminds them how to comply with nondiscrimination rules,” said Slate journalist Mark Joseph Stern.
I actually wrote about this at the time—Gorsuch appears to believe it is unconstitutional for the government to tell employers they must train their workers to comply with civil rights law. He is still angry about this issue five years later. https://t.co/dgtIdKXOao— Mark Joseph Stern (@mjs_DC) December 5, 2022
Liberal Justice Sonia Sotomayor expressed deep concerns about how a ruling in favor of Smith could slash anti-discrimination protections for any number of groups.
“There is no line on race, there is no line on disability, ethnicity, none of the protected categories,” said Sotomayor.
The arguments presented Monday “underscore the fundamental rights at stake” in the case, said Sunu Chandy, legal director for the National Women’s Law Center, “including for LGBTQ people, people of color, women, people with disabilities, and people of all faiths.”
“If the Supreme Court decides to toss away its own precedents, there would be little to stop businesses from discriminating against customers not only based on sexual orientation, but also because of other characteristics like race, sex, disability, religion, or national origin,” said Chandy. “A print shop that disapproves of women working outside the home could refuse to make business cards for women. A jeweler opposed to interfaith marriages could refuse to design jewelry for a mixed-faith couple. A family photographer with white supremacist beliefs could refuse to offer their services to a Black family.”
“The court must reject this approach, prevent second-class citizenship, and ensure all companies are open for business for all,” Chandy added.