The Supreme Court’s 6-3 decision to allow a homophobic website designer to discriminate against gay couples because it violated her faith was hardly a surprise. The conservative majority on the Court has made it loud and clear that its role is to fulfill the fantasies of the right. It may draw the line at some of the wilder dreams, like the idea that legislatures can overturn popular votes, but on core beliefs it has been extraordinarily consistent. The decision last year to overturn five decades of precedent allowing abortion removed any doubt.
Still, the decision in 303 Creative LLC v. Elenis is shocking for its unalloyed willingness to discount LGBTQ+ protections and even mock the Court’s minority’s vigorous defense of them. In his majority opinion, Justice Neil Gorsuch has picked up some of Justice Samuel Alito’s sneer as he chastises fellow Justice Sonia Sotomayor, the author of the dissent, for engaging in “an unfortunate tendency by some to defend First Amendment values only when they find the speaker’s message sympathetic.”
While the full impact of the decision will take a while to unfold, some things are already clear. Here are five takeaways from the decision.
This was always going to be the outcome. The right wing of the Court has been looking for an excuse to elevate the rights of conservative Christians at the expense of LGBTQ+ people for a while. This case was the perfect vehicle. So what that Lorie Smith, the owner of the firm in question, never made a wedding website in her life. So what if no one actually asked her to make one. So what if the case included a fake request from someone who turned out to be a straight man. None of that mattered.
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A normal Court would not be ruling in the case of someone who is asking hypothetical questions. Smith hasn’t suffered any harm, a basic threshold for seeking redress. Instead, this Court plowed ahead because it has been heading in this direction for years. From its ruling in the Hobby Lobby case, granting a corporation the right to withhold contraception access in employee health care plans because the owners are Christian, to its rulings allowing a public school football coach to pray on the field and allowing anti-gay Christian schools to get public funds, the Court has been elevating the rights of conservative Christians. The most recent ruling is just the logical, if reprehensible, next step in that progression.
You can’t blame it all on Donald Trump. Yes, Donald Trump appointed three of the justices on the Court, tilting it far to the right. He was quick to take credit for the ruling overturning affirmative action, and no doubt he will make the Court a centerpiece of his presidential campaign. But the fact of the matter is we would have had this Court no matter who won the 2016 primary. It’s the product of the Republican party, not Donald Trump.
Any Republican president would have appointed the same or similar justices who would have ruled precisely the same way. That’s because the conservative pipeline for the Supreme Court is filled with people who have been thoroughly screened for their adherence to a particular ideology.
The Federalist Society is now the hothouse in which the right raises its judicial prospects. It offers the training, creates the legal arguments, provides connections, and, most of all, wields the influence to move conservatives into positions of power on the bench. Essentially, any Republican president would have to vet his or her Supreme Court nominee through the Federalist Society. A Jeb Bush Court wouldn’t have ruled any differently.
The ruling itself conflates speech and action. Gorsuch’s majority ruling wraps itself in knots trying to make the case about free speech, when in fact Smith was selling her services as a designer. Sotomayor makes quick work of this bogus claim, calling it “profoundly wrong.”
“[T]he act of discrimination has never constituted protected expression under the First Amendment,” Sotomayor wrote. “Our Constitution contains no right to refuse service to a disfavored group.”
Gorsuch makes the absurd argument that Smith isn’t really discriminating against gay people but against gay weddings, which violate her religious beliefs. He argues that this means that the ruling can’t be broadly applied to most other business transactions because they aren’t really expressions of free speech. For example, renting to a gay couple is a public accommodation issue, not a speech issue.
That’s a comforting thought if you buy it. But the Court has shown itself more than willing to start picking away at rights bit by bit.
There will be a lot more lawsuits. The majority opinion leaves a lot of questions unanswered. The way they are going to get answered is in the courts.
Sotomayor was quick to point out that the ruling opened the door to a flood of lawsuits, saying a “large retail store could reserve its family portrait services for ‘traditional’ families.” Gorsuch pooh-poohed that idea, saying that this case was much more straightforward.
It’s not.
Moreover, sensing blood in the water, Alliance Defending Freedom and similar hate groups will want to capitalize on their victory. They aren’t about to stop at this ruling. They will keep pushing the boundaries, using this ruling as the precedent. They will be seeking every possible exception to nondiscrimination laws that they can find in order to weaken them.
It will get worse before it gets better. With the Court demonstrating its willingness to abandon precedent and principle. we are going to be suffering its decisions for a long time. Efforts to change the Court are unlikely to go far, as Republicans won’t relinquish the power it gives them. Eventually, the tide will turn, but until it does, we are in for a tsunami of rulings chipping away at our hard-earned rights.
Five key takeaways from the Supreme Court’s anti-LGBTQ decision