In the US, the Supreme Court sided with a business owner that wanted to discriminate against LGBTQIA would-be clients, with six extremely conservative and Republican-leaning judges ruling that American businesspeople are allowed to refuse rendering services to anyone if they feel these services will affect their right to speech.
Interestingly, the six judges decided on a largely made-up case since the person who filed the case that reached the Supreme Court did not even experience what she claimed she experienced. In 303 Creative v. Elenis, non-professional web designer Lorie Smith used the First Amendment to ask the court to grant her the right to refuse service to LGBTQIA couples due to her extremist Christian religious beliefs. This request was speculative – i.e. the woman was not hired to make a website for any same-sex couple and so had never refused – or been “forced” to do – such work. Smith never even made a single wedding website.
Smith particularly claimed that Colorado’s anti-discrimination act, which prohibits denial of goods, services or facilities “because of disability, race, creed, color, sex, sexual orientation, gender identity, gender expression, marital status, national origin, or ancestry,” violated her First Amendment rights. This is – she argued – because if she did not discriminate, then she would be forced to accept work that contains messages she did not agree with — in this case in particular, websites celebrating the weddings of same-sex couples.
But even if the case was made up, the Supreme Court of the US (SCOTUS) voted 6-3 to rule that a civil rights law in Colorado (where the case was first filed) that bars anti-LGBTQIA discrimination violated Smith’s First Amendment speech rights.
With this, the SCOTUS ruled that businesses are allowed to discriminate, particularly LGBTQIA people.
The SC decision was penned by conservative Justice Neil Gorsuch, who was joined by other conservative justices, Chief Justice John Roberts, Samuel Alito, Amy Coney Barrett, Brett Kavanaugh, and Clarence Thomas.
“All manner of speech – from ‘pictures, films, paintings, drawings, and engravings,’ to ‘oral utterance and the printed word’ – qualify for the First Amendment’s protections; no less can hold true when it comes to speech like Ms. Smith’s conveyed over the Internet,” Gorsuch said.
In a dissenting opinion, Justice Sonia Sotomayor, joined by liberal justices Elena Kagan and Ketanji Brown Jackson, stated: “Five years ago, this Court recognized the ‘general rule’ that religious and philosophical objections to gay marriage ‘do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law… 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 added: “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.’”
Civil rights groups have expressed alarm on the implications of the ruling not just to LGBTQIA people, but to other minority sectors. Note that the Colorado law that Smith questioned also specifically stated “disability, race, creed, color, sex, sexual orientation, gender identity, gender expression, marital status, national origin, or ancestry”; meaning, the SC’s decision may now be used to also discriminate against the other minority sectors.
“The Court’s decision opens the door to any business that claims to provide customized services to discriminate against historically-marginalized groups. The decision is fundamentally misguided,” said American Civil Liberties Union’s (ACLU) legal director David Cole in a statement.
In the US, members of the Supreme Court are not elected, but are assigned to become lifelong members of the highest court of the land for as long as they live by the sitting president.
