In 303 Creative Ruling, SCOTUS Marks ‘Gays and Lesbians for Second-Class Status’

Christopher Kane | Washington Blade
Courtesy of the National LGBT Media Association

The U.S. Supreme Court’s conservative supermajority on Friday ruled in favor of Lori Smith, the graphic artist who did not want to make wedding websites for same-sex couples despite Colorado’s nondiscrimination law barring discrimination on the basis of sexual orientation. 

“The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands,” Justice Neil Gorsuch wrote in the majority 6-3 decision along ideological lines in 303 Creative v. Elenis. 

The liberal justices and LGBTQ+ advocates, however, called the majority’s finding of a free speech exemption to nondiscrimination rules “unprecedented,” warning it would blow a hole through these laws and pave the way for anti-LGBTQ+ discrimination by businesses. 

“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,” Justice Sonia Sotomayor wrote in her dissent, joined by Justices Elena Kagan and Ketanji Brown Jackson. 

The liberal justices argued the Colorado law targets conduct, not speech. 

“Today is a sad day in American constitutional law and in the lives of LGBT people,” Sotomayor wrote. “The immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status.” 

America’s largest LGBTQ+ organization, the Human Rights Campaign, issued a press release Friday following the ruling. “Make no mistake, this case was manufactured by the Alliance for Defending Freedom to create a new license to discriminate against LGBTQ+ people,” the group wrote, referring to Smith’s legal team. 

ADF is described by the Southern Poverty Law Center as an anti-LGBTQ+ hate group. 

“Despite our opponents claiming this is a major victory, this ruling does not give unfettered power to discriminate,” HRC wrote. “This decision does not mean that any LGBTQ+ person can be discriminated against in housing, employment or banking—those protections remain enshrined with federal law.”

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