[Supreme Court Weakens LGBTQ+ Nondiscrimination Laws, Ruling on Hypothetical Case] - Slate

On Friday, the Supreme Court dealt a devastating blow to LGBTQ+ nondiscrimination laws, carving out a First Amendment exception any time a law “compels” a business to “express” a message about sexual orientation with which it disagrees.

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The case, 303 Creative v. Elenis, was manufactured by the Alliance Defending Freedom, a Christian law firm that opposes LGBTQ+ equality in all walks of life. 303 Creative is a for-profit Colorado business owned and operated by Lorie Smith, who opposes same-sex marriage. No same-sex couple has ever tried to hire Lorie Smith to create a website for their wedding. Represented by ADF, however, she filed a preemptive lawsuit demanding a First Amendment right to turn away any same-sex couples who request a wedding website. So the case is built entirely on hypotheticals, and there is no real record to speak of.

Justice Neil Gorsuch’s 6–3 opinion for the court got around this problem by insisting that Smith faces a “credible threat of enforcement” because Colorado acknowledges that it will enforce its civil rights law. He went on to declare that “Colorado seeks to compel speech Ms. Smith does not wish to provide,” speech that would be “celebrating marriages”—those of same-sex couples—of which she does not approve. (The state insists that it would not compel Smith to actually design a wedding website but merely to sell a preexisting template to all customers; Gorsuch simply dismissed this claim, while simultaneously criticizing the state for its ostensible eagerness to punish Smith and other anti-gay business owners.) He applied various precedents limiting the state’s ability to “compel” expression, including Boy Scouts v. Dale (which gave the Boy Scouts a right to exclude gay people) and West Virginia v. Barnette (which gave Jehovah’s Witness schoolchildren a right to opt out of the pledge of allegiance).

The difference between those decisions and 303 Creative, of course, is that this case involves a commercial enterprise, not private individuals or expressive associations. Thus, as Sotomayor wrote in dissent, Friday marks “the first time in its history” that the court has granted “a business open to the public a constitutional right to refuse to serve members of a protected class.”

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Moreover, Sotomayor pointed out, Colorado’s law is aimed not at an individual’s ideas about sexual orientation, as Gorsuch suggested, but at how they impose these ideas on potential customers in a marketplace that the state wishes to remain open to all. The statute “targets conduct, not speech, for regulation,” she wrote, “and the act of discrimination has never constituted protected expression under the First Amendment.”

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