The U.S. Supreme Court has ruled that a Web designer may refuse to create custom websites for same-sex couples, despite state non-discrimination laws. Justice Sonia Sotomayor, in a dissenting opinion, called the decision “profoundly wrong” and noted the message it sends to children with same-sex parents.
The Ruling
In the case, 303 Creative v. Elenis, the Colorado-based designer, Lorie Smith, wanted to offer customized wedding websites through her business, 303 Creative, incorporating her own original words and images. Although, according to the ruling, she “provides her website and graphic services to customers regardless of their race, creed, sex, or sexual orientation,” she worried that “the State will force her to convey messages inconsistent with her belief that marriage should be reserved to unions between one man and one woman.”
The Court ruled 6-3 in her favor, asserting that “The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees.” Justice Neil Gorsuch wrote the majority opinion, joined by Justices Samuel Alito, Clarence Thomas, John Roberts, Amy Coney Barrett, and Neil Kavanaugh.
Justice Sonia Sotomayor wrote a dissenting opinion, saying that today was “a sad day in American constitutional law and in the lives of LGBT people.” She was joined by Justices Elena Kagan and Ketanji Brown Jackson.
Our Children
This ruling has many implications, but as a parenting blogger, I want to focus on one example that Justice Sotomayor used to show how the ruling strikes at “human dignity” (my bold):
Imagine a same-sex couple browses the public market with their child. The market could be online or in a shopping mall. Some stores sell products that are customized and expressive. The family sees a notice announcing that services will be refused for same-sex weddings. What message does that send? It sends the message that we live in a society with social castes. It says to the child of the same-sex couple that their parents’ relationship is not equal to others’. And it reminds LGBT people of a painful feeling that they know all too well: There are some public places where they can be themselves, and some where they cannot.
Think back to 2015, when Justice Anthony Kennedy, writing in Obergefell, the landmark marriage equality decision, said, “Without the recognition, stability, and predictability marriage offers, children suffer the stigma of knowing their families are somehow lesser…. The marriage laws at issue thus harm and humiliate the children of same-sex couples.”
This ruling will have that same negative effect. Anti-LGBTQ rulings and laws harm not only LGBTQ people, but also our children of all identities. Conservatives like to talk about protecting children, but they have a funny way of showing this.
Some Limits
At the same time, legal experts are pointing out that while the ruling could have many negative repercussions, it does have limits. Mary Bonauto, Senior Director of Civil Rights and Legal Strategies, GLBTQ Legal Advocates & Defenders (GLAD), who argued before the U.S. Supreme Court in Obergefell, said in a statement that the ruling was “an unprecedented exemption to nondiscrimination laws that have always been considered to forbid conduct, not speech,” but also called it “extremely limited” and “not the broad victory Lorie Smith and her counsel sought.” The ruling, she explained, “importantly upholds the validity of nondiscrimination laws, including for LGBTQ+ people who may obtain goods and services ‘on the same terms offered to other members of the public’—but it is not the end of efforts to push LGBTQ+ people and couples into a second class status.”
Lambda Legal Chief Legal Officer Jennifer C. Pizer similarly observed that the ruling has limits as well as worrisome implications:
Although misguided, today’s decision depends on its limited, uncommon facts—this business owner takes specific commissions, unlike most commercial enterprises that solicit customers widely, and she creates unique artwork for those selected customers. Importantly, the decision also confirms that all forms of discrimination forbidden by Colorado’s law are subjected to the same constitutional standard, and that such laws serve compelling public purposes…. Given the uniquely creative service at issue here, the impact is likely to be minimal. But the door has been opened for potential future cases to expand this limited carve-out. We will be vigilant against that possibility.”
And National Center for Lesbian Rights Executive Director Imani Rupert-Gordon said:
While the Court’s holding is narrow and will apply only to a very small number of businesses, the dissenting justices rightly stress that the decision creates an unprecedented exception to nondiscrimination laws. This decision is out of step with the values held by the great majority of people in this country, who understand that discrimination has no more place in the public marketplace than it has in workplaces, government, or schools.
Analysis of the case and its implications will be ongoing, by people with far more legal expertise than I. In the meantime, I’ll leave you with the words of Justice Sotomayor again, which offer both a spark of hope and a challenge:
I fear that the symbolic damage of the Court’s opinion is done. But that does not mean that we are powerless in the face of the decision. The meaning of our Constitution is found not in any law volume, but in the spirit of the people who live under it. Every business owner in America has a choice whether to live out the values in the Constitution.
Yes, some business owners will choose to follow the lead of Lorie Smith. I remain optimistic, however, that far more will not.