As the United States Supreme Court takes up yet another culture war issue, it comes against a backdrop of falling stature, overt conflicts of interest, and questionable behavior.
At issue this week is whether Lorie Smith, a Colorado Christian web designer, and her company, 303 Creative LLC, are required to provide wedding website design services to same-sex couples. Smith believes her Christian faith prevents her from creating websites for gay customers even though such a website would be otherwise identical to one she would design for a straight couple.
Importantly, the case presents a mere hypothetical. Smith has never created wedding websites before and does not create wedding websites for any customers, let alone same-sex couples.
Smith contends that subjecting her expressive or artistic services to Colorado’s public accommodation law would violate her right to free speech because it would require her to create messages that are inconsistent with her religious beliefs.
While it may seem sort of innocuous to many at first blush, make no mistake: this case is about future shame, and it has dramatic implications for creative expressions that extend way beyond same-sex couples and wedding cakes.
After the Civil War, states began enacting laws guaranteeing access to public accommodations regardless of race. Colorado passed its first public accommodations law in 1885, less than a decade after it achieved statehood. Since then states have continued to broaden these laws to prohibit discrimination based on other protected characteristics.
Under Colorado’s law, businesses that choose to serve the public at large cannot refuse to serve people because of their race, religion, sex, disability, sexual orientation, marital status, national or other protected classifications.
Colorado Attorney General Phil Weiser, who’s office argued the case, aptly said, “the principle that we are fighting for is that if you are a public business, you have to serve everybody, and you can’t engage in the practice that we’ve seen in our history: ‘No Jews allowed,’ ‘No Blacks allowed’”.
During oral arguments this week, Justice Sonia Sotomayer made clear that a ruling against Colorado would mark “the first time in the Supreme Court’s history” that it would allow a commercial business open to the public and serving the public to “refuse to serve a customer based on race, sex, religion or sexual orientation.”
In a twist of irony, Justice Ketanji Brown Jackson asked another hypothetical about whether a mall Santa could refuse to have pictures taken with Black children. In response, Justice Samuel Alito, remarkably, asked whether a black Santa on the other side of the mall could refuse to have his picture taken with a child in a Ku Klux Klan outfit. Last time I checked, Klu Klux Klan outfits or membership did not qualify as a protected characteristic.
In 2018, the Supreme Court sidestepped a similar question about Jack Phillips, a Colorado baker who refused to make a wedding cake for a gay couple.
Both Smith and Phillips were represented by the Alliance for Defending Freedom, a right-wing advocacy group that boasts that it has represented parties in 14 Supreme Court victories since 2011, including Dobbs, which overturned Roe.
It is a safe bet that the Court, with a six-justice conservative majority largely appointed by former President Donald Trump, will side with Smith.
Such an outcome will certainly exacerbate Americans’ record-low trust in the Supreme Court, which is fast becoming more of a political institution than a judicial one. Only 47% of Americans said they had a “great deal” or a “fair amount” of trust in the Supreme Court, a 20-percentage point drop from 2020, and the lowest trust level among Americans since 1972.
As the Supreme Court overreaches and uses the judicial system to remove equal protections, the institution itself is in dire need of reform and accountability.
Chief Justice John Roberts has not disclosed the findings of the Court’s investigation into the leak of a draft ruling overturning Roe v. Wade. Neither has it substantively answered questions about Christian Minister Rob Schenck’s claims that he was told in advance about the outcome of a major 2014 ruling by Justice Alito after two conservative allies dined at his home. And, the Supreme Court has failed to censure Justice Clarence Thomas for his vote, the lone dissenting one, in a case in which his wife Ginni clearly had an interest.
In order to help restore trust, Congress should conduct its own investigation into these issues as well as pass long overdue legislation creating a code of ethics for the Supreme Court.
In the meantime, granting a license to discriminate to owners of commercial businesses open to the public is a dangerous idea that rightfully died after the Civil War.
Doug Friednash grew up in Denver and is a partner with the law firm Brownstein Hyatt Farber and Schreck. He is the former chief of staff for Gov. John Hickenlooper.
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