The only thing worse than a bad ruling at the U.S. Supreme Court is a bad ruling that sets up the prospect that the worst is yet to come.
Former Solicitor General Donald Verrelli worried about that prospect a year ago when he wrote, in an essay for the American Bar Association, that the 303 Creative v. Elenis appeal could have consequences far beyond sexual orientation discrimination.
"What if, for example, [Lorie] Smith [the website designer who brought the case] had instead asserted that her religious beliefs forbade her from employing her creative abilities to celebrate an interracial marriage, or even to serve African Americans at all?" said Verrelli. "While such hypotheticals may seem far-fetched today, those are precisely the kinds of arguments that challengers to the civil rights laws made during the 1950s and 1960s."
Justice Neil Gorsuch did not mention the Civil Rights Act of 1964—not even once—in his opinion for the 6 to 3 majority June 30. He did not contemplate the implications for interracial couples, even though two of the court's nine justices are part of interracial marriages. And he certainly didn't mention —as he did in the Title VII decision he wrote— that, "Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations."
And certainly, Gorsuch did not mention that a billionaire credited with doing a lot to get Gorsuch appointed to the Supreme Court also gave thousands of dollars to support the work of the Alliance Defending Freedom, which brought forth the 303 Creative case.
Gorsuch and the 6 to 3 majority's 2019 decision in the Title VII case, Bostock v. Clayton County, held that the federal law barring discrimination on the basis of "sex" in employment also prohibits discrimination on the basis of "sexual orientation" and "gender status." Gorsuch and the 6 to 3 majority's 2023 decision in the public accommodations case, 303 Creative v. Elenis, held that the First Amendment right to free speech can, in certain circumstances, free business owners to violate state laws prohibiting discrimination on the basis of sexual orientation. (Technically, Lorie Smith said she would not create websites for people having same-sex marriages; realistically, nearly all same-sex marriages involve LGBTQ people, not heterosexuals.)
The Gorsuch decision in Bostock was meticulously reasoned; the Gorsuch decision in 303 Creative came across as rushed, defensive, and painfully aware that the question the court posed was stacked to reach its result.
The dissent to the 303 Creative, written by Justice Sonia Sotomayor, contemplates various implications of the ruling.
"Although the consequences of today's decision might be most pressing for the LGBT community, the decision's logic cannot be limited to discrimination on the basis of sexual orientation or gender identity," warned Sotomayor. "The decision threatens to balkanize the market and to allow the exclusion of other groups from many services."
Echoing a county judge in Virginia who, in 1959, found Richard and Mildred Loving guilty of violating that state's law against interracial marriage, Sotomayor added, "A website designer could equally refuse to create a wedding website for an interracial couple, for example. How quickly we forget that opposition to interracial marriage was often because "'Almighty God . . . did not intend for the races to mix.'"
"Yet the reason for discrimination need not even be religious," noted Sotomayor, "as this case arises under the Free Speech Clause. A stationer could refuse to sell a birth announcement for a disabled couple because she opposes their having a child. A large retail store could reserve its family portrait services for 'traditional' families. And so on."
The NAACP Legal Defense Fund, in reaction to the 303 Creative majority decision, said it "provides cover for those who seek to curb any group of people's right to access services due to their identity."
"For multiple reasons, this decision is a direct threat to everyone at risk for discrimination," said Jenny Pizer, chief legal director for Lambda Legal. "The decision states explicitly that discrimination based on sexual orientation is to be treated the same as other forms of discrimination prohibited by Colorado law. That might at first glance seem like good news to LGBTQ+ people because there has been a fear that this court would contrive a way to rule that some version of cherry-picked history justifies using a less-protective standard for anti-LGBTQ+ discrimination. But the equal-treatment principle comes in the context of this court creating a new exception to civil rights laws that reduces the protection for everyone."
Within days of the June 30 decision, officials at a Catholic high school in Indianapolis said the ruling provided cover for their decision to fire two guidance counselors because each is married to a same-sex partner. A justice of the peace in Texas said she thinks the ruling provides cover for her refusal to officiate marriages for same-sex couples. The Alliance Defending Freedom, the anti-LGBTQ legal group that pressed the 303 Creative lawsuit, said Monday (July 17) that it is asking two federal circuit courts to apply that decision in cases they have on appeal for wedding photographers in New York and Kentucky. And the First Liberty Institute expressed confidence that the 303 Creative decision bodes well for their client, a Portland, Oregon, bakery that has refused to sell to same-sex couples.
In Klein v. Oregon, the Oregon Court of Appeals ruled that owners of the bakery, Melissa and Aaron Klein, could not cite their religious beliefs in order to violate a state law that prohibits discrimination based on sexual orientation in public accommodations. The U.S. Supreme Court vacated that decision once in 2019 and asked the lower court to reconsider the case "in light of"�the U.S. Supreme Court's decision in Masterpiece Cakeshop v. Colorado. Oregon came back with the same decision. But on June 30 this year, the Supreme Court vacated the Oregon decision again and sent it back, directing the lower court to give "further consideration" to the case, "in light of" 303 Creative.
"The actual [303 Creative] ruling is limited, but the discrimination door is now open, wide open," said Richard Socarides, a legal analyst and commentator for a number of national media outlets. "Given the court we are stuck with, I would say the future outlook is quite gloomy."
Quite. And yet, there were a few tiny moments of relied in the Supreme Court's 2022-23 session. Tiny, because they were appeals that the Supreme Court simply refused to take. One involved a public school seeking to require girls to wear skirts; one sought to defend a ban on transgender athletes in schools; and one attempted to undermine anti-discrimination laws in employment. The refusal to hear the appeals has no legal value—they are simply three among 7,000 or more similar appeals that sought Supreme Court review but were turned down. The three included:
Church school bias: In Faith Bible v. Tucker, a church school sought to defend itself against a lawsuit alleging racially motivated discrimination by claiming the teacher it fired was a "minister." In previous rulings, the Supreme Court has given church employers exemptions from certain non-discrimination laws if the violation alleged is against a "ministerial" employee. The LGBTQ legal group GLAD joined a brief arguing that church employers will just label all employees ministerial in order to gain the exemption, leaving LGBTQ people and others "unprotected." Faith Bible lost at the appeals court level and appealed to the U.S. Supreme Court. On June 12, the Supreme Court declined to hear the church school's appeal.
School dress policy: A charter school in North Carolina appealed a lower court decision that found its dress code violated the right to equal protection for its girl students. In Charter Day School v. Peltier, the school claimed its policy of requiring girls to wear skirts was necessary to "preserve chivalry" and because a girl is a "fragile vessel." The mother of a female kindergarten student filed a lawsuit, which some other parents joined, challenging the policy as sex discrimination and saying it was based on gender stereotypes. The ACLU, Human Rights Campaign, GLBTQ Legal Advocates & Defenders (GLAD), the National Center for Transgender Equality, and others were among the LGBTQ groups who submitted briefs in support of the female students in the lawsuit. The students lost at the district court level but won at the appeals court level. The school appealed to the U.S. Supreme Court and on, June 26, the Supreme Court declined to hear the charter school's appeal. The court's denial said nothing of its feelings about whether schools can dictate how girls and boys should dress. The key legal question was simply whether this charter school operated as part of the public school system and, as such, had to provide equal protection of the law to all its students.
Trans female athletes: In a 7 to 2 vote, the Supreme Court on April 6 denied a request from West Virginia to vacate a federal appeals court injunction that prevented the state's anti-transgender law from taking effect. The injunction is set to remain in place until the lower courts rule on the constitutionality of the law. The West Virginia law, which is one of many similar laws passed in various states around the country, requires that students who participate in girls/women's sports at public secondary schools or universities, must be identified as biologically female at birth. With the aid of Lambda Legal and the ACLU, the parent of an 11-year-old student in third grade challenged the law as violating Title IX. The student identified as male since age 3, has been treated for gender dysphoria since third grade, and has not experienced puberty. Two federal appeals courts, including the Fourth Circuit U.S. Court of Appeals, have ruled that Title IX, the federal law that prohibits discrimination based on sex in federally supported schools, covers gender identify. The district court ruled against the student (Becky Pepper-Jackson, now 13), but the Fourth Circuit issued an injunction to stop the law from taking effect until the appeals court could rule. West Virginia asked the U.S. Supreme Court to vacate that injunction, but the majority refused. The case, BPJ v. West Virginia, will almost certainly be back before the Supreme Court once the Fourth Circuit rules.
Pizer said, "It's hard to know what's likely to come next — where and whether this majority will see logical limits to this new free speech carve-out….The rule has been [that] the business decides what to make and sell, not to whom to sell."
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