WASHINGTON — The United States Supreme Court, after a decision overturning Roe v. Wade, who still leaves many in shock, begins a new mandate with judges who should re-examine the question of LGBTQ rights.
In 303 Creative v. Elenis, the court will revisit the issue of whether or not custom-made product providers can deny service to LGBTQ customers on First Amendment grounds. In this case, the business owner is Lorie Smith, a web designer from Colorado who wants to refuse to provide her graphic design services for same-sex weddings despite civil rights law in her state.
Jennifer Pizer, acting chief legal officer of Lambda Legal, said in an interview with The Blade, “it’s no exaggeration to say that an immeasurable amount is at stake” for LGBTQ people depending on the outcome of the case. ‘affair.
“This contrived idea that making personalized goods or offering a personalized service somehow implicitly conveys an endorsement of the person — if that were to be accepted, that would be a sea change in the law,” Pizer said. . “And the stakes are very high because there is no practical, obvious and principled way to limit this type of exception, and if the law is not clear in this regard, then the people who risk being discriminated against have no security. , no effective protection by having anti-discrimination laws because at any time as one makes one’s way through the commercial market you don’t know if a man of business in particular will refuse to serve you.
The upcoming arguments and ruling in the 303 Creative case mark a return to LGBTQ rights for the Supreme Court, which had not filed a lawsuit to directly address the issue during its previous tenure, although many have argued that the Dobbs decision jeopardized LGBTQ rights and threatened access to abortion for LGBTQ people.
And yet, the 303 Creative case is similar to other cases the Supreme Court has heard before involving service providers seeking the right to refuse services based on First Amendment grounds, such as Masterpiece Cakeshop and Fulton v. . City of Philadelphia. In both of these cases, however, the court made narrow rulings on the facts of the case, declining to make sweeping rulings either in favor of non-discrimination principles or First Amendment exemptions.
Pizer, who signed one of the friends of court briefs against 303 Creative, said the case was “similar in purpose” to the Masterpiece Cakeshop litigation on the grounds that they both seek exemptions from the same law. on non-discrimination. which governs their business, the Colorado Anti-Discrimination Act, or CADA, and seeks “to advance the social and political argument that they should be free to turn down same-sex couples or LGBTQ people in particular.”
“So there’s the legal purpose, and it ties into the social and political purposes and in that sense it’s the same as Masterpiece,” Pizer said. “And so there are multiple issues again, as a legal issue, but also as a social issue, because like the religious argument, it stems from the idea that having something to do with us, it’s approving us.”
One difference: The Masterpiece Cakeshop litigation stems from a denial of service act after owner Jack Phillips refused to make a bespoke wedding cake for a same-sex couple for their upcoming wedding. No act of discrimination in the past is present in the 303 Creative case, however. The owner is seeking to put a disclaimer on her website that she will not provide same-sex wedding services, signaling an intent to discriminate against gay couples rather than having done so.
As such, expect questions of standing – whether either party is personally harmed and able to sue – to be decided in argument as well as whether the dispute is ripe for consideration when the judges consider the case. It’s not hard to see U.S. Chief Justice John Roberts, who has sought to get the court to make less sweeping decisions (sometimes successfully, and sometimes unsuccessfully in the Dobbs case) to push for a decision in this direction.
Another key difference: the 303 Creative case relies on the freedom of speech argument as opposed to the twin arguments of freedom of speech and freedom of religious practice in the Masterpiece Cakeshop litigation. Although 303 Creative sought in its petition to the Supreme Court to review the issues of speech and religion, the justices chose to address the issue of free speech only by granting a writ of certiorari ( or an agreement to take on a deal). The justices also declined to accept another issue in the 1990 precedent review application in Smith v. Employment Division, which concluded that states can apply generally applicable neutral laws to citizens with religious objections without violating the First Amendment.
Representing 303 Creative in the lawsuit is Alliance Defending Freedom, a law firm that has sought to undermine civil rights laws for LGBTQ people with litigation seeking First Amendment-based exemptions, such as the Masterpiece Cakeshop case.
Kristen Waggoner, president of Alliance Defending Freedom, wrote in a Sept. 12 legal brief signed by her and other attorneys that a ruling in favor of 303 Creative comes down to a flagrant violation of the First Amendment.
“Colorado and the United States still argue that CADA only regulates sales transactions,” the brief states. “But their cases do not apply because they involve non-expressive activities: selling barbecues, firing employees, restricting school attendance, limiting club memberships and access to rooms. Colorado’s own cases agree that the government cannot use public accommodation laws to affect a commercial actor’s speech.
Pizer, however, strongly pushed back against the idea that a ruling in favor of 303 Creative would be as targeted as Alliance Defending Freedom claims, arguing that it could open the door to widespread discrimination against LGBTQ people.
“One way to put it is that art tends to be in the eye of the beholder,” Pizer said. “Is it something of a craft, or is it art? I feel like I’m channeling Lily Tomlin. Remember “soup and art”? We understood that whether something looks good or not is not the determining factor in whether something is protected as an artistic expression. There is a legal test that recognizes if it is a speech, from whom is it, from whom is it a message? Would someone who heard the speech or saw the message understand that it was the message of the customer, the merchants, the craftsmen or the businessman? »
Despite the implications for LGBTQ rights, 303 Creative may have supporters among LGBTQ people who see themselves as supporters of free speech.
A joint amicus curiae brief to the Supreme Court, written by Dale Carpenter, a law professor at Southern Methodist University who has written in support of LGBTQ rights, and Eugene Volokh, a First Amendment jurist at the University of California , Los Angeles, argues that the case is an opportunity to assert that the First Amendment applies to goods and services that are uniquely expressive.
“Distinguishing expressive from non-expressive products in some contexts can be difficult, but the Tenth Circuit agreed that Smith’s product does not present a hard case,” the brief states. “Yet this court (and Colorado) refused to recognize any exemption for products constituting speech. The Tenth Circuit effectively recognized the state’s interest in subjecting the creation of speech itself to anti-discrimination laws. »
The oral arguments in the case are not yet defined, but could be announced soon. Colorado Solicitor General Eric Reuel Olson is prepared to defend the state of Colorado and enforce its non-discrimination law in this case. Just this week, the United States Supreme Court announced that it would grant the request for the US Solicitor General to present arguments before the justices on behalf of the Biden administration.
With a 6-3 conservative majority on the court that recently dropped the super precedent guaranteeing abortion rights, LGBTQ rights supporters may think the outcome of the case is all but lost, especially amid fears widespread that same-sex marriage would be on the chopping block next. After the United States Court of Appeals for the Tenth Circuit ruled against 303 Creative in the lawsuit, the Supreme Court’s mere action of granting review in the lawsuit suggests that it is prepared to quash and rule in favor of the company.
Pizer, acknowledging the call to action made by LGBTQ groups in the wake of the Dobbs ruling, acknowledged that the current Supreme Court ruling in the case is “a terrifying prospect,” but cautioned that the issue is n It was not so much the composition of the court, but whether or not the judges will continue on the path of abolishing case law.
“I think the question we face with respect to all cases or at least many cases that are before the court right now, is whether this court is going to continue on this radical sort of wrecking ball for the edifice of law established and apparently a goal to put in place whole new structures of what our basic legal principles are going to be. Are we going to have another term of this? says Pizer. “And if so , it’s terrifying.”