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Jumping at Shadows:The Supreme Court Makes Real Law Out of an Imaginary Case

Updated: Dec 15, 2023

In June 2020, the United States Supreme Court ruled in Bostock v. Clayton County, Georgia and Altitude Express, Inc. v. Zarda that Title VII of the 1964 Civil Rights Act prohibits employment discrimination based on sexual orientation and transgender status. The significance of this case means millions of gay, lesbian, and transgender employees are protected under Title VII and the cases were decided in a 6-3 majority with John Roberts and Neil Gorsuch siding with the more liberal judges. Samuel Alito, Clarence Thomas, and Brett Kavanaugh dissented in the case.

But fast forward to the more recent ruling that was also a 6-3 majority with all of the conservative judges siding with a Colorado web designer, who challenged the state of Colorado’s public accommodation laws by claiming she should not be forced to work with same-sex couples since she opposes same-sex marriage. The majority opinion was written by Justice Neil Gorsuch, who had also written the majority opinion for those June 2020 cases, which stated there is a difference between discrimination based on one’s status and classifications, and discrimination based on message.

The web designer, Lorie Smith, claimed she produces stories for the websites she makes for couples and that those stories involved her words and original artwork. That was enough for the conservative majority of the Supreme Court to rule that Smith should be granted constitutional protections from public accommodation laws and not be forced by the state to tell the story of couples whose marriages she disagrees with on legal ground even though the case is based entirely on a hypothetical scenario. The web designer has not been approached by one single same sex couple; she went to court before she went into business. Now the door is open for millions of people to lose access to public goods and services because this Supreme Court went out of its way to take this case and rule in favor of the business owner.

Worth noting the one difference between June 2020 and the more recent ruling impacting LGBTQ rights is Amy Coney Barrett having since taken the place of Ruth Bader Ginsburg. But even if Justice Barrett would have ruled differently three years ago and RBG today, that one vote swing would not have made a difference in these rulings.

So, what happened and what does it mean?

What the Supreme Court appears to have decided here is that there is a difference between selling a product and expressing an idea that can be turned into a product. The Court found the state cannot force people to express ideas that go against their beliefs, which essentially means stores cannot refuse to sell wedding dresses to same-sex couples, but website designers can refuse to make websites for those weddings and same goes for bakers not wanting to make personalized wedding cakes.

So, do I believe we are going to go so far backwards that restaurants and other establishments are going to bar the LGBTQ+ from sitting at counters, like Black people who were not allowed service throughout the South prior to the Civil Rights Movement? No. But where there should be levels of concern, or at least a heightened sense of awareness, as where are the lines going to be drawn when it comes to this Supreme Court’s interpretation of the First Amendment vs the right of the LGBTQ+ community to not be discriminated against.

For example, the Colorado website designer might have been willing, or might even be required by law to sell other products or services, just not the customized story and artwork for a website. How do we decide where that line is drawn? A bakery might not be required by law to make a same-sex couple a wedding cake, but it probably will not be allowed to ban same-sex couples from purchasing the everyday products it makes available to everyone like crumbuns and cannolis. What if some of those products are customized in a unique way that only a particular bakery sells, or what about forms of artistic expression outside of website designs?

This issue is far from over and will require future litigation to settle. But if there is one thing that the Supreme Court has made clear, when it comes to the clashing of rights, this Court will always prioritize its strict interpretation of the First Amendment and will only go so far when it comes to LGBTQ+ rights.

And what are these rulings a direct result from… the 2016 Presidential Election where many people could not be bothered to vote or voted for a third-party candidate who had previously been hanging out with Vladimir Putin and Mike Flynn in Moscow one year prior. I hope after these rulings and reading this article that you see why voting is so important.

Guest blogger: Jeremy Louis Levine – Educator, Lecturer, and Author.



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