Commentary

The Supreme Court opened a dangerous can of worms after granting the right to discriminate

gavel in front of a Pride Flag
Photo: Shutterstock

What can we infer from those religions that justify the discriminatory treatment of other human beings?

In terms of LGBTQ+ equality, I simply cannot comprehend the clear and undeniable contradiction between a religion’s expressed claims, in various forms, to love one’s neighbor as oneself, and how it is better to give than to receive, combined with, for example:

·       a baker’s refusal to bake a confectionery delight

·       a photographer’s refusal to preserve joyous moments

·       a caterer’s refusal to cook the pleasures of delectable sustenance

·       a florist’s refusal to arrange the beauties from the garden

·       a jeweler’s refusal of a band connecting human souls

·       a web designer’s attempts to deny creation of a personalized website

·       a realtor’s refusal to show shelters signifying new chapters in one’s book of time

·       a landlord’s refusal to rent

·       a shop owner’s refusal to sell the common and special objects supporting and enhancing life

·       a restauranteur’s refusal to serve anyone a time away from the kitchen

·       an employer’s refusal to hire a fully qualified and committed employee

 All these refusals based solely on people’s social identities.

In a 6-3 ruling last week, the Supreme Court, in 303 Creative LLC Et Al. v. Elenis et al, came down on the side of Lori Smith, the owner of a graphic design business who wants to expand her business to include developing websites for couples seeking wedding websites but claims that to do so for LGBTQ+ couples would violate her First Amendment right to free speech.

Denver-based Smith challenged Colorado’s anti-discrimination laws and asked for an exception by citing her Christian beliefs against same-sex marriage.  

Conservative Justice Neil Gorsuch wrote in the ruling that Colorado’s law would force Smith to create speech that she does not believe, in violation of the First Amendment.

For the court’s liberal justices, Sonia Sotomayor wrote, “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.”

Though the ultra-conservatives on the Court held that this decision was limited to this single case, they opened the door for business owners to claim First Amendment freedoms of speech and religion any way they see fit, such as if their religion opposes interracial or interfaith marriages.

What about in the case of serving people who practice other religious beliefs or no religious beliefs? Some Christian denominations still wrongly assert, for example, that Jews killed “the Lord, Jesus.” Would followers of these religions be given full permission to discriminate against Jews?

And what about a business owner who runs a café and a customer wearing a rainbow shirt enters the premises? Would that owner have the right to kick the person out even when that owner posts no dress code?

President Biden was quick to speak out against this ruling.

“In America,” he said, “no person should face discrimination simply because of who they are or who they love….The Supreme Court’s disappointing decision in 303 Creative LLC v. Elenis undermines that basic truth, and painfully it comes during Pride month when millions of Americans across the country join together to celebrate the contributions, resilience, and strength of the LGBTQI+ community. While the Court’s decision only addresses expressive original designs, I’m deeply concerned that the decision could invite more discrimination against LGBTQI+ Americans.”

Let’s look at another Supreme Court ruling, this one during the Trump Administration.

In a 7-2 ruling in 2018, the Supreme Court came down on the side of the owner of Masterpiece Cakeshop, Jack Phillips, who refused to bake a wedding cake for a same-sex couple in Colorado on “religious grounds.”

When pressed by Michael Shear, a reporter for The New York Times at a White House press briefing, Press Secretary Sarah Huckabee Sanders asserted that the President considers it fine for businesses to hang a sign in their window saying they won’t serve gay people.

Though the Trump administration had hoped the ruling would apply “religious freedom” (to discriminate) nationwide, the decision was limited in scope to this one baker. The case, however, cleared the legal path for the courts and U.S. Justice Department to advance its cause, supported by conservative Christian nationalist groups, at the expense of others’ civil and human rights.  

The United States of America was founded on conservative Christian justifications for oppression, utilizing so-called “religious” rationalizations for slavery, prohibitions on interracial relationships and marriage, advances in racial segregation, bans on women’s enfranchisement, on contraception, and on people’s rights to control their bodies, initial opposition to universal public schooling, injunctions on public education and other services for people with disabilities, restrictions on immigration and voting rights, imposition of school prayer and so-called “Blue Laws” prohibiting Sunday sales, banning of books and other curricular materials, promotion of “God-given” rights to carry weapons, and many other areas of public policy.

The real people involved

Picture this: The scene is Des Moines, Iowa, 2011. A joyous and excited engaged couple, in preparation for their upcoming nuptials, entered Victoria Childress’s home bake shop for a taste-testing appointment for their wedding cake.

The tradition of the wedding cake dates back centuries. It symbolizes the anticipation of a sweet life together. The couple cuts the confectionary delight hand-in-hand representing their first of many combined and cooperative undertakings in marriage. They feed each other a piece to show their joint commitment.

When the couple entered Victoria Childress’s shop, the owner asked who was getting married. A member of the couple, Janelle Sievers, told the baker that they were, she and her partner Tina Vodraska. Upon hearing this, Childress informed the couple, according to published accounts: “I’ll tell you I’m a Christian, and I do have convictions. I’m sorry to tell you, but I’m not going to be able to do your cake.”

Later, according to Sievers, “I don’t think either one of us knew what to say. We were just shocked.”

Interviewed by a reporter for local TV station KCCI, Childress gave her reasons: “I didn’t do the cake because of my convictions for their lifestyle. It is my right as a business owner….[I]t’s to do with me and my walk with God and what I will answer [to] him for.”

The Iowa State Supreme Court in 2009 voted unanimously to uphold a lower court ruling legalizing marriage for same-sex couples, preceded by the Iowa Legislature, which amended Iowa’s Civil Rights Act in 2007 to include “sexual orientation” and “gender identity” in the areas of employment, housing, education, and public accommodations.

Sievers and Vodraska have yet to decide whether they will file a civil lawsuit. This preceded the U.S. Supreme Court’s 2015 decision in Obergefell v. Hodges legalizing marriage for same-sex couples nationwide.

Now picture this: The scene is the small Virginia town of Central Point in Caroline County in 1958, when childhood friends fall in love and marry across the Potomac River in Washington, DC. Virtually the entire town attends the reception festivities in the Central Point home of one of the partners, whose family invited the young couple to live with them until they could afford a home of their own.

Soon afterward, as the couple sleeps peacefully embracing in their bed, local police officers crack the silence by abruptly storming the room, guns poised, flashlight beams temporarily blinding the couple who suddenly find themselves shacked in handcuffs as officers march them terrified to the town jail.

“Richard,” asked Mildred, “what did we do wrong?” Richard could only shake his head in bewildered astonishment, though they both knew why they had been brought there.

Richard Loving, a man of European descent, and Mildred Jetter Loving, a woman of African descent, married in a state that passed and retained its anti-miscegenation statute, the so-called “Racial Integrity Act” of 1924, making it unlawful for a White person and a Person of Color to engage in sexual relations.

At the trial, the judge, Leon Bazile, convicted and sentenced them both to one-year imprisonment with a suspended sentence on the condition that the couple leaves the state of Virginia for a period of 25 years.

Staring at Richard and Mildred during the sentencing, Bazile invoked Biblical justifications to convict the couple: “Almighty God created the races — white, black, yellow, Malay and red — and He placed them on separate continents. And but for the interference with His arrangement, there would be no cause for such marriages. The fact that He separated the races shows that He did not intend for the races to mix.”

Mildred and Richard filed several lawsuits taking their case all the way to the highest court in the land. In the case of Loving v. Virginia, the Supreme Court of the United States declared in 1967 that Virginia’s anti-miscegenation statute was unconstitutional, thereby overturning Pace v. Alabama (1883), and ending all race-based legal restrictions on adult consensual sexual activity and marriage throughout the U.S.

I mention these two cases in an attempt to distinguish two vital concepts. The first is the issue of morality, which I see based on our values and our set of beliefs derived by some from religious faith traditions, and by others from secular humanist principles.

We live in a country that protects all of our moral belief systems, which no one has the right to take from us. Our beliefs are our own to cherish and to live by as long as we deem them fitting. Some people may refer to “morality” as the “Golden Rule,” whereby we treat others how we want to be treated.

A closely aligned but also somewhat distinct notion is the concept of ethics. For me, this applies to what some refer to as the “Platinum Rule,” whereby we treat others how they want to be treated. We consider their needs, their best interests, their values and beliefs, even if these do not necessarily connect or bond with our own.

As a university professor of pre-service teacher education students, I raise the distinction between moral convictions and professional ethics when we discuss issues of controversy within the field of education.

I discuss how as teachers, they might find their moral teachings in opposition with the lives or beliefs of their students. For example, their students may “come out” to them as lesbian, gay, bisexual, transgender, non-binary, queer, or other identities, or they may live with same-sex parents or guardians.

Or some of their students’ parents or caregivers may be undocumented workers. Or students may be followers of faith traditions of which they may not understand or approve. As teachers, however, they have ethical obligations to serve all their students with the highest degree of professionalism and to treat them equitably.  

With this backdrop, then, I ask us, how would Janelle & Tina and Mildred & Richard wish to be treated, and what would be in their best interests?

So, rather than denying someone the right to public services based on their social identities, religions, abilities, or relationship status, instead, if designing a website or baking a cake for LGBTQ+ people or couples goes against your religious beliefs or values, you might question your own religion and consider changing to a different religion, or none at all.

How can one believe in the value of religions that blatantly discriminate?

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