Supreme Court lets businesses discriminate against a protected class for the first time in history

Photo by Ian Taylor on Unsplash

In 2017, the Supreme Court heard a case about a bakery owner who refused to create a cake for a gay wedding. The Court ruled that the cake represented free expression, so the Colorado Anti-Discrimination Act (CADA) could not force the owner to sell a cake for the couple’s wedding. On June 30, the Court ruled on a similar case. This time, though, no one had even asked the owner for her services. 

Lorie Smith is a graphic designer who wanted to expand her business to include wedding websites. Before adding the service seven years ago, she paused and considered CADA. If a same-sex couple asked her for a website design, she would refuse. Smith believed that her services were a form of expression and did not want CADA to force her to produce messages with which she disagreed. In this case: support for same-sex marriage, which she believes violates God’s will. 

The case was theoretical, predicated entirely on Smith’s establishment of a “credible threat” that she would be sued under CADA if she refused services to same-sex couples. 

No prospective customer has asked Smith to make a website for their same-sex wedding. According to the filing, in 2016 a gay couple said they were planning their wedding and asked Smith for her services. But when a journalist called the number listed on the suit, the immediate response was: What Supreme Court case? The person had never requested Smith’s services. He was already married to his wife and had no idea he’d been listed in the case. 

The Justices split along partisan lines in their 6-3 decision. The majority ruled that the First Amendment prohibits Colorado from “coercing” vendors to express messages with which they disagree. 

In her dissent, Justice Sonia Sotomayor wrote: “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.” 

She explained that public accommodations laws are set to serve and protect the public. The majority’s decision in 303 Creative LLC v. Elenis suggested that some identities are excluded from the general public. 

Sotomayor discussed the broader implications of the case, and the slippery slope of free expression as a reason to discriminate. She offered hypothetical situations with a photography business to illustrate her concerns. Among these were ones that refuse to photograph mixed-race students on picture day because it opposes interracial marriage, refuse to photograph women for corporate headshots because it opposes women in the workplace, or refuse to photograph immigrants’ passport photos because it opposes immigration. 

The decision’s immediate impact is a demarcation of LGBTQ+ people as “second-class,” Sotomayor wrote. “It sends the message that we live in a society with social castes.”

Ultimately, the decision pushed the judicial process deeper into its backslide. “Time and again, businesses and other commercial entities have claimed constitutional rights to discriminate. And time and again, this Court has courageously stood up to those claims—until today,” Sotomayor wrote. “Today, the Court shrinks.”

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