Scott Gurvey's Public Offerings

Embed from Getty Images

The Supreme Court’s conservative supermajority did not end its assault on precedent with its new rules on abortion last term and affirmative action in the term just ended. In the eight years since the court ruled in Obergefell v. Hodges that the right to marry is a fundamental right guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment the surviving dissenters in that case, Justices Samuel Alito, Clarence Thomas, and Chief Justice John Roberts have been plotting revenge. Thomas, in his concurrence to last year’s Dobbs v. Jackson Women’s Health opinion stripping American women of their reproductive rights explicitly invited a fresh challenge to Obergefell.

The majority found their instrument in 303 Creative L.L.C. v. Elenis, a strangely concocted case which seems to have been unfit for Supreme Court review. In this case a web designer, Lorie Smith, sought the right to refuse to design websites for same-sex couples planning a wedding. Ms. Smith, owner of 303 Creative, was represented by Alliance Defending Freedom (“ADF”), a right-wing Christian legal firm.

Smith was aware that Colorado law (defendant Aubrey Elenis is the director of the Colorado Civil Dights Division), prevented public businesses from discriminating against people based on their gender identity or sexual orientation. She sued, arguing the law would force her to act against her Christian faith in violation of her First Amendment rights to both free speech and free exercise of religion.

But the facts in this case are anything but clear. Smith filed her original lawsuit in 2016, when she claimed someone named Stewart had reached out to her to ask about putting together a website for his marriage to a person named Mike. That narrative was thrown into question after The New Republic published an article about Stewart, who denied ever having reached out to Smith. It quoted him saying he was a web designer who has been married to a woman for years, had a child, and knew nothing about the Supreme Court case in which he had been named.

At the time she started her lawsuit, Smith was not designing websites, let alone websites for same-sex weddings. What she was doing with her lawsuit was asking the court to consider a pre-enforcement challenge of the Colorado law. Although federal courts historically avoid cases where there is no case in controversy and no actual damages, the lower courts accepted jurisdiction in this case. Both ruled against Smith.

The Supreme Court reversed those decisions, apparently accepting the lies told by the plaintiff and inventing injuries where there were none. “Faux litigation takes a new step into fakery in a Supreme Court case,” Senator Sheldon Whitehouse tweeted the day the decision was handed down.

Justice Neil Gorsuch wrote for the majority, joined by the five other conservative justices. Gorsuch ruled that Colorado cannot “force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.” And he wrote that the court’s decision would provide similar protection to other business owners whose services involve speech, such as artists, speechwriters, and movie directors.

In her dissent, joined by the Court’s two other progressive justices, Justice Sonia Sotomayor called the decision “a sad day in American constitutional law and in the lives of LGBTQ people.”

It is Sotomayor’s dissent which reveals why the Court elected to take a weak case and really make a mountain out of a molehill. The majority just doesn’t like LGBTQ people and it has gone out of its way to say so in a case which will have little immediate impact. Invited by the majority in Dobbs to revisit cases including Obergefell, the ADF did exactly that and provided the conservatives another opportunity to impose their personal religious beliefs on a nation which has come to accept the equal rights of LGBTQ people as part of the climate of tolerance to differing views which the Constitution guarantees.

Gorsuch and his majority partners, while trying as hard as they could to mask their opinion as a freedom of speech issue, have created an exception from the legal standard that commercial enterprises dealing with the public must accommodate people of differing views. Sotomayor was not deceived by the majority writing, “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.”

It may be the first. It will not be the last from this Court.

#####