January 2023 Church & State Magazine - January 2023

Design For Discrimination: Supreme Court Appears Sympathetic Toward A Website Creator Who Insists She Has A Right To Deny Services To LGBTQ People

  Liz Hayes

The ultra-conservative bloc of the U.S. Supreme Court seems poised to undermine civil rights laws and church-state separation yet again following the December oral arguments in 303 Creative v. Elenis – a case simultaneously about nothing and everything.

It’s the latest in a slew of wedding-services cases being litigated by Christian Nationalist legal groups seeking to unravel anti-discrimination protections for LGBTQ people and anyone else who doesn’t share fundamentalist religious beliefs.

Alliance Defending Freedom (ADF) is behind the lawsuit, which bears a surface resemblance to the last blockbuster Supreme Court case involving a business seeking to refuse services to same-sex couples: Masterpiece Cakeshop v. Colorado Civil Rights Commission. ADF also represented Masterpiece Cakeshop, but their 2018 win in that case was narrow and didn’t grant all businesses a blanket license to discriminate. ADF therefore has been gunning to get another shot at the Supreme Court, especially since the bench has swung further to the right with Donald Trump appointees Brett Kavanaugh and Amy Coney Barrett replacing Anthony Kennedy and Ruth Bader Ginsburg.

But whereas Masterpiece involved a real same-sex couple – David Mullins and Charlie Craig – who sought a wedding cake and were turned away by the bakery, no same-sex couple has asked 303 Creative LLC, a Colorado-based website design business, to sell them a wedding website. In fact, the business does not currently design wedding websites. Unlike Masterpiece Cakeshop, Colorado authorities have not penalized 303 Creative or taken any action against the business to enforce the state’s anti-discrimination laws.

But ADF argues that if the business starts designing wedding websites, and if a same-couple asks for a wedding website, the business should get to deny them service because the owner has a religious objection to marriage for same-sex couples – or “false” marriage, as 303 Creative’s attorney, ADF CEO Kristen Waggoner, repeatedly described it during oral arguments.

Mark Joseph Stern, a legal analyst for Slate, asserted that ADF’s lawyers manufactured a case in which there are no victims like Craig and Mullins.

“That strategy let them transform [303 Creative owner Lorie Smith] into an ersatz victim, one who secured gentle, empathetic coverage from the mainstream press,” Stern wrote. “Much like how women were erased from Dobbs, gay people have been erased from 303 Creative. Their absence left space for ADF to paint Smith as an underdog, a fighter – the hero of the story. The Supreme Court can adopt that narrative and depict its decision as a triumph for constitutional rights without the sorrowful objections from the actual victims, since there are none.”

Because the case is about a hypothetical situation and there was no actual dispute or interaction between a business and customer that could be reviewed and debated, the justices peppered attorneys with a barrage of hypothetical examples – leading to outlandish scenarios and borderline inappropriate exchanges.

Since ADF argues that 303 Creative selling a website for a same-sex couple’s wedding would violate the business’s freedom of speech, Justice Ketanji Brown Jackson theorized that would mean a business selling “nostalgic” holiday pictures with Santa could refuse to photograph Black children. After Waggoner struggled to explain why ADF’s argument wouldn’t lead to such race-based discrimination, Justice Samuel Alito jumped in to ask whether a Black Santa should be forced to be photographed with white children in Ku Klux Klan outfits.

Colorado Solicitor General Eric Olson patiently explained that wearing KKK outfits “is not protected characteristics under public accommodation laws.” When Justice Elena Kagan added the Santa could turn away children in KKK outfits regardless of their race, Alito snidely remarked, “You do see a lot of Black children in Ku Klux Klan outfits, right? All the time.”

Another awkward exchange between Alito and Kagan occurred when Alito tried to make a hypothetical example about a photographer taking profile photos for dating websites. After Kagan – who is Jewish – confirmed that Jdate is a dating service primarily for Jewish people, Alito remarked, “Maybe Justice Kagan will also be familiar with the next website I’m going to mention … ashleymadison.com” – a website for married people who want to cheat on their spouses.

Meanwhile, there were plenty of examples offered to the court of the people who would be harmed if the justices adopt ADF’s argument that businesses should be able to cite religious beliefs to deny service to people and get exemptions from civil rights laws. Americans United joined 29 religious freedom organizations in a friend-of-the-court brief explaining how anti-discrimination laws like Colorado’s protect religious minorities as well as LGBTQ people and customers with other protected characteristics, such as race, sex, age and ability.

“Such a speech-based exemption from compliance with anti-discrimination laws would open the floodgates to the very discrimination that these laws are intended to guard against,” the brief explained. “The consequences cannot be overstated: it would throw open the doors to discrimination against people who practice religion, with the strongest impact falling on people of faith from minority religious communities. While the exception that [ADF seeks] risks devastating consequences for all historically marginalized groups, [we] focus in particular here on the impact for members of minority religions.”

A protester holds a sign reading "Human-kind. Be both."

No to discrimination! A protester speaks out at the Supreme Court (Anna Moneymaker/Getty Images)

Gabi Hybel, an AU Madison Legal Fellow who joined experts from Demand Justice, Lambda Legal, the NAACP Legal Defense Fund (LDF) and the National Women’s Law Center for a webinar to discuss the wide-ranging impact this case could have, further explained the Pandora’s box the court is poised to open.

“If the court says, ‘Yes, Ms. Smith can discriminate against gay customers,’ then there’s nothing stopping another business from discriminating against Muslims, or Catholics, or Sikhs, or any other religious minority,” Hybel said. “Discrimination against religious minorities is frightening and upsetting no matter what, but I think right now especially, when we’re seeing this rise in antisemitism, in violence and in hate speech against religious minorities, it’s even more frightening to hear this case right now in our current context.

“None of that is to detract from the harm that is happening to LGBTQ folks with this case, just to highlight this affects all of us,” Hybel concluded. “All of us benefit from public accommodations laws and all of us have something to lose right now.”

During the webinar, LDF Assistant Counsel Antonio Ingram II pointed to his organization’s brief that referred to the landmark 1968 civil rights case Newman v. Piggie Park Enterprises, in which the court ruled the white owner of a barbecue restaurant could not refuse to serve Black customers despite his religion-based opposition to integration. “As the Court unanimously recognized in Piggie Park, the Constitution does not permit religious beliefs to trump anti-discrimination laws in the operation of commercial businesses,” LDF wrote in its brief.

The 303 Creative case, coupled with national events leading up to oral arguments, drove home how religious extremism and undermining church-state separation are intersectional problems. Days earlier, the U.S. Department of Homeland Security took the extraordinary step of warning Jews, other religious and racial minorities, LGBTQ+ people and immigrants to be on heightened alert for domestic terrorism from “lone offenders and small groups motivated by a range of ideological beliefs and/or personal grievances.”

That declaration came in the wake of a deadly shooting at Club Q, an LGBTQ+ club in Colorado Springs, and weeks of rising antisemitism. The latter was in part spurred by so-called “free-speech absolutist” Elon Musk’s takeover of Twitter and Trump’s Thanksgiving week dinner with Ye (the rapper formerly known as Kanye West, who has become a pariah due to his recent antisemitic rhetoric) and white nationalist Nick Fuentes.

In a statement condemning antisemitism and other hate-filled, extremist ideologies, AU President and CEO Rachel Laser voiced her fears about the outcome in 303 Creative, which is expected to be decided by the end of June: “The conservative Supreme Court justices were shockingly cavalier about the discrimination they seem poised to allow despite anti-discrimination laws. They are about to take our country backward to a time when businesses could openly declare ‘No Jews allowed.’

“There can be no freedom for any of us in America until we are all free to live our lives without fear that we will be harmed because of who we are, what we look like or what religion we practice,” Laser added. “Americans United is committed to defending the separation of church and state as the shield that ensures we may all live as ourselves and believe as we choose. There can be no religious freedom, racial justice, LGBTQ+ equality or reproductive freedom without church-state separation.”

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