On Dec. 5, the Supreme Court heard 303 Creative LLC v. Elenis, a case determining the right of businesses to discriminate on the grounds of the 1st Amendment’s right to free speech.
At the center of this case is Lorie Smith, a Colorado Christian and web designer. Shortly after she began making wedding celebration websites, she looked into the possibility of posting a notice that she was unwilling to design websites for same-sex weddings.
This notice, however, would violate Colorado’s anti-discrimination laws, the same laws that spurred 2018’s case queer rights case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, which involved Masterpiece Cakeshop, a Christian-owned bakery, refusing service to a same-sex couple.
The infamous 2018 case ended with a 7-2 decision in favor of Masterpiece Cakeshop, emphasizing the religious subtext of the case. “Colorado law can protect gay persons in acquiring products and services on the same terms and conditions as are offered to other members of the public, the law must be applied in a manner that is neutral toward religion,” the majority opinion shared.
With Smith’s case expected to reach a decision in June, many are questioning the nature of the First Amendment at large. Joe Youngbaur, a Government teacher at PVHS, weighed in on the case. “This case is a combination of civil liberties, as outlined in the First Amendment, and civil rights in regards to queer people.”
What Youngbauer outlines is the underlying question that the Supreme Court will ultimately have to decide this Summer: does the First Amendment protect the “Right to Discriminate”?
Not exactly.
Colorado’s anti-discrimination legislation is sweeping, but the primary reason that it has been the center of controversy for four years is because of its non-exemption for religion, which the First Amendment explicitly protects. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech.” Though inherently homophobic, it’s easy to interpret this clause as protection for Christian-owned businesses that refuse to serve the queer community on religious grounds.
However, the Supreme Court will be in a tough spot regardless of what they ultimately decide.
The Supreme Court can indirectly affect legislation with the precedent set by each decision they make. For example, when Roe v. Wade was initially decided, no specific right to abortion had been enumerated. However, Henry Wade, Dallas Country’s district attorney, was successfully sued for a law outlawing the practice.
With that in mind, what precedents could come of the Supreme Court’s June decision on 303 Creative LLC v. Elenis?
If the Supreme Court rules in favor of 303 Creative LLC and Smith, very little is expected to change. Though the Supreme Court’s 2018 ruling in favor of Masterpiece Cakeshop was described as a uniquely contextual decision, and Colorado did not revise its anti-discrimination laws, the effective precedent is still present.
Should the Supreme Court rule in favor of Smith and explicitly set a precedent going forward, as they are expected to do, there is potential for all businesses, even essential businesses, to be free to discriminate against the queer community on the basis of religion.
With the prominence of homophobia in business culture, as seen with Chick-Fil-A and Hobby Lobby, this outcome may appear dire. However, the likelihood of businesses denying service to 10% of the population, ultimately affecting their bottom line, is low.
On the other hand, if the Supreme Court rules in favor of Elenis, punishing Smith for her transgression against the queer community, the precedent set could have an adverse effect.
“Any time you have any sort of established precedent, it can have many domino effects. It brings to mind other cases arguing contraceptives or religious liberty. At its heart, this case will prove significant to civil rights,” Youngbauer continues.
In forcing Smith to design webpages for a community that she claims violates her religion, there is a definite potential for actual queer people, among other marginalized groups, to be forced to provide artistic services to people that could pose a direct threat to them. What at first seems like a good-natured jab at homophobia from the Supreme Court could easily spiral into a Black artist being forced to illustrate racist messages, or a vegan chef being forced to cook meat. When business owners are forced to provide services to all, regardless of identity, they could face adverse effects.
While paradoxical, the way forward is to ensure that progress is not forced. It’s important to deeply consider the effects of legislation before advocating one way or the other. In the case of 303 Creative LLC v. Elenis, which will see a final decision in June 2023, religious freedom, and more importantly, creative freedom, is paramount to ensuring a society of tolerance and willful progression.
