Supreme Court grants right to refuse to serve LGBTQ community if the business claims their services or product expresses their “beliefs”

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Photo of the outside steps of the Supreme Court
"Supreme Court" by Mark Fischer is licensed with CC BY-SA 2.0. To view a copy of this license, visit https://creativecommons.org/licenses/by-sa/2.0/

In a 6 to 3 decision, the U.S. Supreme Court today said a state law can not require a business owner to comply with a state law against discrimination in public accommodations if the business owner claims their services or product expresses their “beliefs.” The decision arose out of a case in which a wedding website designer asked federal courts to declare she did not have to create wedding websites for same-sex couples. Many legal observers believe the decision will have consequences for LGBTQ people and other minorities beyond beliefs about marriage.

The vote was 6 to 3, with Justice Neil Gorsuch (a Trump appointee) writing for the majority. He was joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett, all Republican appointees.

Justice Sonia Sotomayor (an Obama nominee) wrote for the minority, which included Elena Kagan and Ketanji Jackson, all Democratic appointees.

In the opening sentence of her dissent, Sotomayor quoted a conservative majority’s opinion in Masterpiece Cakeshop v. Colorado: “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,” wrote Sotomayor.“…This is heartbreaking. Sadly, it is also familiar. When the civil rights and women’s rights movements sought equality in public life, some public establishments refused. Some even claimed, based on sincere religious beliefs, constitutional rights to discriminate. The brave Justices who once sat on this Court decisively rejected those claims….[T]he law in question targets conduct, not speech, for regulation, and the act of discrimination has never constituted protected expression under the First Amendment. Our Constitution contains no right to refuse service to a disfavored group.”

The court’s decision came in 303 Creative v. Elenis, a case involving a website designer in Colorado who asked federal courts to declare that she had a right to refuse to design wedding websites for same-sex couples. The Alliance Defending Freedom represented the web designer, Lorie Smith, in seeking a pre-emptive ruling.

Attorney General Aubrey Elenis defended the state law of Colorado, whose governor, Jared Polis, is the first openly-gay man to be elected governor of any state.

The Alliance, which has led numerous lawsuits seeking to undermine state laws that protect LGBTQ citizens, lost this case in federal district court and in the 10th Circuit U.S. Court of Appeals. The 10th Circuit said Colorado’s public accommodations law was a neutral law of general applicability and that it was not unconstitutionally vague or overbroad, as the Alliance had argued.

The Supreme Court majority decision reversed the 10th Circuit decision yet spent much of its time trying to illustrate ways in which the appeals court and the majority agreed. Justice Gorsuch also spent an inordinate amount of ink defending the majority opinion from Sotomayor’s stinging dissent — which characterized the majority decision as “embarrassing.”

Gorsuch noted that the dissent accused the majority “is akin to endorsing a ‘separate but equal’ regime that would allow law firms to refuse women admission into partnership, restaurants to deny service to Black Americans, or businesses seeking employees to post something like a ‘White Applicants Only’ sign.”

“But those cases are not this case,” wrote Gorsuch. “Doubtless, determining what qualifies as expressive activity protected by the First Amendment can sometimes raise difficult questions. But this case presents no complication of that kind.”

The Alliance claimed the web designer sought only the First Amendment right to express herself “in a manner consistent with [her] religious beliefs; [she] does not seek to impose those beliefs on anyone else.” The designer claimed she would serve LGBT people as long as the message of the website they sought did not conflict with her religious views, opposing marriage for same-sex couples.

The Alliance and other extreme right-wing groups have been trying for years to win from the courts a broad exemption from various laws that prohibit discrimination based on sexual orientation and gender identity.

The Alliance’s argument was that the graphic artist had “the right to choose what messages her works convey” and that she chose to convey messages to “express what she believes is the beauty of God’s design for marriage.” The Alliance said the Colorado law prohibiting discrimination in public accommodation (including the marketplace) violates the graphic artist’s First Amendment right to freedom of expression by “forcing” her and other artists “to speak messages that violate their deeply held beliefs.”

LGBTQ groups argued that the Alliance was trying to create an “unbounded exemption” to non-discrimination laws, including the federal Civil Rights Act of 1964, and would  be a dangerous change to longstanding law.

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