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June 30, 2023 10:51 AM UTC

SCOTUS Rolls Back Discrimination Law Via Contrived Colorado Case

  • 45 Comments
  • by: Colorado Pols

UPDATE: Statement from Rep. Brianna Titone of Arvada:

“The decision by the Supreme Court undermines Colorado’s anti-discrimination protections, directly attacks the rights of LGBTQ Americans and allows businesses to deny services based on ‘First Amendment’ grounds to anyone due to their gender, race, religion, or who they love.

The US Supreme Court has legalized discrimination and bigotry against LGBTQ people and has endangered equal protections under the law. With one decision, the Court threatens decades of progress to secure the freedoms and rights of LGBTQ Americans, and has threatened the rights of Americans to equally and fairly access public accommodations.

Across the country, over 500 anti-LGBTQ bills have been introduced that put the community in danger of harm, preventing us from freely expressing ourselves or being able to make personal health care decisions. We’ve made great progress in recent years to fight against the increasing anti-LGBTQ+ attacks. We secured the right to access gender affirming care and abortion care, added anti-discrimination protection language to include gender identity and gender expression, and strengthened anti-discrimination protections for people in the workplace. While our new laws ensure Colorado is a safer place for members of the LGBTQ+ community to call home, we still have hills to climb to combat the rising anti-LGBTQ vitriol.

Colorado Democrats will continue to fight for your freedoms and stand up against discrimination, bigotry, and violence against the LGBTQ+ community.”

—–

Justice Neil Gorsuch.

9NEWS’ Janet Oravetz reports on the decision handed down this morning by the U.S. Supreme Court in the case of 303 Creative v. Elenis, in which Colorado-based web designer Lorie Smith mounted what’s known as a “pre-enforcement challenge” to Colorado laws protecting LGBTQ+ people from discrimination in public accommodation. Today’s 6-3 ruling, authored by Colorado’s own Justice Neil Gorsuch, upheld Smith’s right to refuse service in the event she was ever asked to create a website for a gay couple’s wedding:

The court ruled 6-3 for Lorie Smith, the owner of 303 Creative, who creates websites and other graphic work. Justice Neil Gorsuch wrote the majority opinion. Justice Sonia Sotomayor wrote the dissenting opinion. She was joined in her dissent by Justices Elena Kagan and Kentanji Brown Jackson.

Smith offers graphic and website design services and wants to expand to wedding website services, but she said her religious beliefs would lead her to decline any request from a same-sex couple to design a wedding website.

Smith also wants to post a statement on her website about her beliefs, but that would run afoul of a Colorado anti-discrimination law. Smith had argued the law violates her free speech and religious rights.

Attorney General Phil Weiser, who argued the state’s case in 303 Creative v. Elenis, warned in a statement today that this decision “threatens to destabilize our public marketplace.”

“Today’s sweeping decision threatens to destabilize our public marketplace and encourage all kinds of businesses—not just those serving weddings—to claim a First Amendment free speech right to refuse service to certain customers. A business may think that it can refuse to serve interracial couples because it believes interracial marriage is wrong. A payroll company may read today’s opinion as license to refuse service to women-owned businesses because the businessowner believes women should not work outside the home. A bookseller of religious texts may believe it can refuse to sell books to a member of the Church of Jesus Christ of Latter-day Saints because he doesn’t believe it to be a legitimate religion. And so on.

“This case is not about websites or speech—but the ability of all to enter the public marketplace as equals. [Pols emphasis] Equality and fairness are core Colorado values and we have protected people in our state from discrimination in public accommodations for more than 100 years. We will work hard to ensure that, within the confines of the Court’s opinion, we take action to hold accountable those who engage in unlawful discrimination.”

Although Smith’s case was argued before the court as a “pre-enforcement challenge,” there’s been some reporting over the last few days that suggests at one point Smith and/or her legal handlers at the Alliance Defending Freedom may have attempted to fabricate a request for the kind of services Smith wants to be able to deny. Michael Karlik at the Colorado Springs Gazette’s political blog has that story:

On June 29…The New Republic reported that part of the evidence submitted in the lawsuit of 303 Creative v. Elenis references a purportedly gay customer who sought the services of plaintiff Lorie Smith, but who may not exist…

Colorado Politics contacted Stewart using the email address also in the filing, where he confirmed The New Republic’s account.

“I have been happily married (to a woman) for the last 15 years. I have never contacted Lorie Smith about making a website,” he said on Thursday.

There could be penalties for any lawyers who may have been involved in fabricating evidence in this case, but if you’re hoping for a do-over of this decision you’ll have to wait until there’s a very different U.S. Supreme Court hearing the case. Even though the wording revolves around free speech rights and artistic expression, the fear is that this decision will lead to many more cases of businesses asserting their “religious freedom” to discriminate against customers in other ways. Very ugly times could be ahead.

The only thing we can say, as with yesterday’s ruling against affirmative action and the Dobbs decision itself, is that the seeds of all this were sown by the treacherous Republican takeover of the U.S. Supreme Court–a process that began with the refusal of the Republican-controlled Senate to give Merrick Garland a fair hearing in 2016, citing “principles” they would abandon a few years later to confirm Amy Coney Barrett.

As for Colorado’s “native son” Neil Gorsuch? He just contravened the will of the majority of Colorado voters. Again. While Gorsuch will never personally face the voters, Republicans who helped put in him his lifetime office do every election.

The only thing to do now is to make these Supreme Court decisions electorally Pyrrhic victories.

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45 thoughts on “SCOTUS Rolls Back Discrimination Law Via Contrived Colorado Case”

  2. goddamn I hate this country, it's just getting worse and worse because of religious nutbags! I'm so ashamed to call myself an American.

    The silver lining is businesses can reject MAGAts citing religious beliefs, so let's all fuck around and find out. Also, MAGA businesses will feel free to refuse business to certain people, so let them, and let them feel the wrath of the rest of us. This is war.

  3. I guess I should adhere to me deeply held religious beliefs as an atheist and refuse to serve evangelical Christians and Republicans because their views and actions are antithetical to my deeply held atheism.  Game on, bigots, game on.

    1. Damn right. The state cannot compel me to say/do anything that might be construed as my endorsement of belief in talking donkeys or the extensive biblical rules governing the ownership and treatment of slaves.

      1. The evangelical worldview and belief system are antithetical to Harvard's longstanding institutional commitment to equity, inclusion, and diversity.  Harvard should (though it won't) consider religious affiliation and systematically reduce the admission of evangelicals in service of their mission. 

  5. I'm going to be the voice of dissent on this page.

    If I were compelled to produce a site for a group that hates on Christians (of which I am one), including imagery and/or text of that nature, and I declined, I would have fallen afoul of Colorado's law.

    Now, if I were a website designer and I was asked to design a basic functioning CMS and some non-offensive border graphics for the same group, I would say I have to do that.

    Nothing in this ruling conflicts with my feelings about either of these theoretical cases. It does not mean a restaurant could deny a black couple entrance because their soups are custom designed for white Christians only. It does not mean that a dress shop can kick out a drag queen on a shopping mission – or even that a tailor could deny alterations to said dress purchase. I would argue that a homophobic wedding photographer at a gay wedding would be one of Gorsuch's difficult cases (boudoir session excepted) – there really isn't that much expressive about wedding photography.

    1. Possible crowd chants if Gorsuch were ever to deign to speak at an open and public event in Colorado.

      Garland Garland Garland

      Trump's Monkey  Trump's Monkey

      Evil asshole Evil asshole

        3. Thank him for a non-pivotal vote on the Navajo water rights case, while stripping rights from millions?

          Sure…while I am at it I will thank Charles Manson for NOT murdering my mother.

           

            1. As usual, you assume disagreement with your position is based on ignorance on the part of the one who disagrees.

              Your long, long commitment to equivocating about the behavior of the Republican party and its supporters is intact. Gorsuch comes from a long line of "benevolent imperialists ". He has "wise use" spelled out in his DNA. Nope…however he may support my native cousins, it doesn't compensate for the holy war he is waging on civil rights.

              I might be more inclined to heap praise upon him if it were understood that his impassioned support twisted Alitos' arm until he changed his vote and changed the outcome. Did that happen? 

              Uh..no.

            2. Gorsuch does deserve thanks for his Indian Law cases ("Indian Law" is a term of art in the legal world), no question.  But his kneecapping of agencies and rejection of standard administrative law is devastating the executive branch's ability to help the nation.  And his contortions in religion cases is anticonstitutionalist and an open invitation to evangelical bigots to push the envelope further and further.  On balance, I'd prefer Justice Garland.  But here we are. 

              1. With the current makeup of the SCOTUS, I look for victories on my issues where I can get them. Unlike some around here, I don't get into "pearl clutching, weeping, wailing, and gnashing of teeth" when I don't win 100% of the time. 

                An example, other than the 10 Native American cases that Gorsuch has strongly supported. The recent Alabama voting rights found Gorsuch on the wrong side; wrong for me. But Roberts, Kavanaugh, Barrett crossed over and joined the liberal justices for the 6-3 decision.

                1. Consistency is a comforting characteristic . I am comforted to see you still have nothing but ad hominems and condescension in your quiver.

                   

                  1. Funny thing. I didn’t mention you by name; I didn’t reference any one individual at all. Yet you recognized yourself. Of course, you did write “the book” on condescension and ad hominem. Enjoy your pearl clutching; you and Lindsay Graham. Have a pleasant weekend.

                    1. "Perhaps, if one were to do a little more research". 

                      You were addressing whom? Someone other than me?

                      Feeble attempt at deflection, old boy. Feeble, indeed. Have another cup of coffee and try again.😀

                       

                       

                2. I personally enjoy reading your comments CHB. Your perspective is a welcome sign of diversity and inclusion among the group.

                  Preserving voting rights and rejecting ISL were positives by the court but their corrupt ethics and assault on personal liberties is troubling for sure.

                3. It's not about getting 100% all the time, it's about the wholesale disregard for precedent, the absurdist originalism that allows cherry-picking history to get to the desired result (and ignoring history when it doesn't suit the justices' needs), and distorting the procedural and factual records of cases to achieve the desired result.  There is strong proof that the underlying facts of 303 Creative were fabricated or ginned up, in which case the decision should have been dismissed for lack of jurisdiction because there was not a case or controversy required by Article III.  And the ethical shitshow is gobsmacking.  This is a court reminiscent of the early 20th century, which is nothing to be proud of.  

                   

        1. I’m just here for the writing wit and jovial word play. What reasoning can there be about Trump’s monkey making a mockery of judicial restraint and precedent. Reasoning is for people who have a conscience.

    2. Protected "The Federal government … has the following protected classes: Race, Color, National Origin, Sex, Age, and Disability."

      The Supreme Court appears to have carved out an exception for "expressive goods and services that are contrary to their beliefs."   In an article at the University of Chicago Legal Forum, Elizabeth Sepper (Professor of Law, University of Texas at Austin School of Law) has a few questions about the limits on accommodation law: .

      The expansionist project of free speech doctrine has public accommodations laws within its sights. If businesses prevail in their constitutional claims, a number of serious questions arise: What kind of a consumer market will we be left with? In the absence of a shared expectation of service, will we see contestation over norms of the consumer market as we did decades ago? Or will the market become balkanized with stores organized around specific religious or other values rather than abstract customers and their dollars? Will gay identity and relationships be sent back into the closet to be able to access consumer goods? And will other civil rights protections in employment, housing, and education remain unscathed? Is public accommodations discrimination sufficiently distinct in its focus on dignity and its impact on realms of shallow, transient, arms-length relations? Are its “evils” so “unique” that we might distinguish the rest of civil rights law?

      What seems clear is that a constitutional privilege against public accommodations law would destabilize longstanding conventions of service and civility in the consumer marketplace. Exceptions—however the lines are drawn—would undermine an identity-neutral marketplace where dollars and people flow freely without the friction of information and search costs.

      If the Court can allow a yet-to-be-started business with yet-to-be-shown "expression" from turning away yet-to-be-customers based on a yet-to-be-fully-defined religious impulse, can anyone be certain what the boundaries for business discrimination are?

      1. And that last paragraph sum up the problem. 303 Creative has a theoretical business plan to serve theoretical customers. As with the state student loan case, the Court kind of winged it to make up standing. That IMHO is as bad as the decisions themselves, and indicative of what the Court might do in the future.

        1. This Washington Post story made the whole thing seem severely bogus to me. Not only did 303 have a theoretical business plan, the person cited as having made a request for a gay website claims not to have made that request!

          The court filing in Stewart’s name has left many baffled, including Stewart himself, who said he was concerned that the case had proceeded without anyone verifying if the request was authentic.

          Whether "Stewart" (not his full name) was being truthful or not might still be a fair question. But if that's the way things really work with SCOTUS, I might just float a case claiming my bank said people with microblogging handles of "2Jung2Die" don't have to finish paying their mortgage, and, y'know, see what happens!

          1. Let’s try a hypothetical here: a lesbian fashion desgner, proprietor of WokeWear, pre-emptively refuses to design new KKK hoods in a three percenter logo print wih matching ProudBoy khakis and polos. 
             

            She has never been asked to design such an ensemble, but wants the court’s blessing to refuse to do so just in case. She says that completing the customer’s request would violate her personal religious beliefs that people should not promote hate and bigotry against each other.
            Does SCOTUS take her case? 

            Is the 303 case cited as precedent?

            1. Oprah just shouted "You get a hypothetical! And you get a hypothetical! And you get a hypothetical! (and so on until the asteroid mercifully strikes Earth)"

            2. She could already refuse to design … III%ers and Proud Boys are not "protected classes."

              More relevant hypothetical …. can someone refuse to design judicial robes for women (who ARE a defined class, e.g., "sex") Can the Swedish chef decide to put a "NO NORWEGIANS" sign up?

                1. I would say "tack Gud" about the lutefisk and try to stay, but might have some percentage of the wrong Scandinavian heritage so could get tossed out anyway. Ya just can't win sometimes. Uff da!

  6. As we roll back towards Jim Crow era policy, one wonders when it will dawn on the GOP that the reason for gun control in the 1800s (pre- and post-Civil War) were to keep firearms out of the hands of African Americans. If a gun ban were put into place, it could be selectively enforced, which is standard Southern practice.

    Also I'm curious now as to when a miscegenation lawsuit is going to hit the SCOTUS. That will give Mr. Thomas a great opportunity to demonstrate his judicial prudence!

    1. The GQP no longer even pretends to believe in democracy. Majority rule has failed them. Their future as a political force is gasping for breath, but demographics is their bane and their doom. Autocratic rule is their only salvation.

      The Republican party is toxic and must be obliterated at the polls. No option. Conservatism as a political principle is so twisted and degraded as to be unrecognizable. It is no longer possible to use the terms as synonyms. 

      The upcoming 2024 elections will have very long-lasting ramifications.

      Vote Blue! No Matter Who!

       

  7. As a member of one of the communities targeted by one of last week's Supreme Court abominations, I say that instead of wallowing in our victimhood, we should get even.

    We are stuck with this court for the foreseeable future but there are other options available.

    There are two things that people in this country respond to: the coercive force of the state (including the courts), and the economic force of money.

    My fellow LGBTQ's and our straight allies simply need to organize boycott of businesses. If nothing else, we should take a page from the Bud Lite/Dylan Mulvaney culture war battle.

    Forty years ago, we got Coors to see the light – or the green. Granted, there was a younger generation which took over and realized it was more important to make $$$ than to make political statements that were offensive.

     

    1. I wrote to my state senator and state representative (and Rep. Titone) to suggest legislation requiring businesses who wish to "express themselves" by not serving people must notify potential customers of their discrimination & have a full statement of who they will not serve.  [The "why" may be requiring too much for First Amendment rights.]

      Just as cigarette and alcohol purveyors must include warnings on their labels, a host of products need OSHA warnings, and restaurants must put up their inspection label, discriminatory businesses ought to post their discrimination.

      2. Doesn’t seem likely to pass muster, freedom of speech also encompasses freedom not to speak/freedom from compelled speech.  Tobacco and alcohol are regulated products in the marketplace, speech is hypothetically not (unless you’re discussing abortion, speaking/teaching in Florida, Texas, etc. . . .)

        1. I'm not an attorney … but do spend a fair amount of time learning about various sorts of free speech.

          The state of Colorado has an expectation that businesses will not discriminate and refuse service to members of various protected classes.  The Supreme Court says those making "expressive speech" cannot be disciplined when they refuse to work with some as a result of their religious beliefs.  All the state would be doing would be the equivalent of a "truth in advertising" law. 

          If a bigot wants to avoid working members of some group, all they have to do is clarify their limits.  Since they would be making public statements when they turn down contracts or business, all my suggestion would do is make the position known BEFORE it would be invoked. 

          I suppose there could be some limits, similar to the Fair Housing Act that "exempts owner-occupied buildings with no more than four units, single-family houses sold or rented by the owner without the use of an agent, and housing operated by religious organizations and private clubs that limit occupancy to members."

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