Legal Experts Break Down Supreme Court's LGBTQ+ Discrimination Ruling

In the last days of June, the Supreme Court struck down affirmative action, opened the door to LGBTQ+ discrimination and outlawed the Biden administration’s plan to forgive student loans. These are monumental rulings that directly affect people of color, queer folks, prospective college students and the 43 million Americans with federal student loans — leaving many devastated and fearful for the future.

In our series explaining this summer’s Supreme Court decisions, we’re unpacking how these rulings will affect you — and what can be done now. This explainer focuses on the case 303 Creative LLC v. Elenis — which saw the court rule in favor of a web designer who refused to make wedding websites for gay couples — and what it could mean for discrimination against LGBTQ+ folks in the United States.

KQED gathered legal and judicial insight on this ruling at a panel hosted at Manny’s, a community space in San Francisco. On this panel were:

• Courtney Liss, associate at San Francisco law firm Keker, Van Nest and Peters
• Cody Harris, partner at Keker, Van Nest and Peters
• Matthew Coles, professor of practice at UC Law San Francisco (formerly UC Hastings)

What was the Supreme Court’s decision about LGBTQ+ discrimination?

In a defeat for gay rights, the Supreme Court’s conservative majority ruled in 303 Creative LLC v. Elenis that a Christian graphic artist who designs wedding websites can refuse to work with same-sex couples.

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Justice Sonia Sotomayor, one of the court’s liberal justices, wrote in a dissent that the decision’s effect is to “mark gays and lesbians for second-class status” and that the ruling opens the door to further discrimination. Read more about the case from NPR or read the Supreme Court’s ruling (PDF) for yourself.

What will change for queer people in the US after this case?

This ruling has opened the door for LGBTQ+ people to be discriminated against when requesting services from certain professionals, says UC Law San Francisco’s Coles, specifically in situations involving the use of words or the creation of images and films.

Why? Smith framed her website services as “expressive in nature” (PDF) because she designed them to be customized, original and intended “to communicate a particular message.” Consequently, other professionals operating what could be termed an “expressive business” could use this ruling to deny service to LGBTQ+ people as well.

Coles’ advice to folks in the community? “Find out in advance whether this business has said that it doesn’t want to serve [queer people],” he said.

Practically, the website case now means that someone like Lorie Smith, the Colorado graphic designer, can refuse service to LGBTQ+ folks “without fear of government sanction on them,” said Harris of Keker, Van Nest and Peters.

Harris adds that hate speech laws as most people think of them — those that would make it a crime to say something hateful — don’t really exist. Hate speech is “awful and odious, and it makes me angry,” he said, “but it’s constitutional.”

How was this case even won?

Lorie Smith, the web designer involved in the case, was challenging her home state of Colorado’s public accommodations law — the type of law that, in most states, bars discrimination based on sexual orientation. Her claim was that the state was unconstitutionally forcing her to create a message she opposes because she can’t deny service to same-sex couples. The Supreme Court sided with Smith, ruling that forcing her to create websites for queer couples would violate her free speech rights under the Constitution’s First Amendment.

Smith should have lost her case on several fronts, said Coles — just one being that her website work “is commercial speech,” and not personal expression (free speech), because Smith “was being paid to write words for somebody else.” And it’s well-established, says Coles, that commercial speech is not as protected as other forms of speech.

The court ignored this analysis of the First Amendment in its ruling, says Coles. A majority of the justices, he adds, believe that if Smith created websites for same-sex couples, she would be forced to use words to celebrate things she does not want to celebrate.

Responding to lingering questions over the legitimacy of this case — namely, whether the web designer in question had ever really been asked to design a site for a gay wedding — Coles said he didn’t think it’s “a fake case.” The real question, he said, is whether the designer has taken steps to “start working on websites or not — and the answer is yes. She made a pretty decent showing in the court that she’d done a lot of research. She had models together.”

Notions of this being a “fake case” get away from the point, says Liss, of Van Nest and Peters. She stresses that this case is “an important door,” one that this court has chosen to open and go through by taking up the case in the first place.

What could the long-term ramifications of this case be?

Coles says that what surprised him about the Supreme Court’s decision was that it did not draw upon the clause in the Constitution that protects people’s right to practice their religion. Instead, the ruling draws upon the free speech clause, “because [Lorie Smith] was involved in expressive conduct.”

Coles believes that the Court’s conservative justices disagree on how to interpret the free exercise-of-religion clause. But he cautions that there may come a day when the conservative justices privilege religious exemptions in their rulings. “And that religious exception to nondiscrimination laws is not going to be limited to expressive businesses,” he said.

“Run through the list of everything that we’ve managed to cover with our civil rights laws,” Coles said, referring to protections for race, religion, gender and disability. By itself, he said, 303 Creative LLC v. Elenis is “not going to completely eviscerate discrimination laws,” but he believes it “portends something in the future, which is a good deal worse.”

How can you voice your opposition to this ruling?

The Supreme Court’s recent raft of rulings against LGBTQ+ rights, affirmative action and student loan forgiveness has drawn vehement criticism sharply focused on the Court’s conservative supermajority. For example, in speaking out against the student loan decision, U.S Rep. Barbara Lee (D-Calif.) called the body a “corrupt, right-wing court.”

Criticism of the court’s rulings has also come from within, with Justice Sonia Sotomayor saying that the website designer ruling saw the Supreme Court “taking steps backward.”

“Today is a sad day in American constitutional law and in the lives of LGBT people,” she added. “The immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status.”

Coles notes that at the end of the student loan decision, Justice Elena Kagan’s dissent features a “very pointed dialogue” that strongly criticizes the Supreme Court for what she sees as violations of the separation of powers in their ruling — and that Justice John Roberts’ reply bristles at the suggestion that the court is not legitimate.

“So I think they’re beginning to get sensitive to the notion that there’s a wide, ever-growing public belief that some of what they’re doing is not legitimate,” said Coles of the conservative justices. “It’s really important if you think what they’re doing is not legitimate, to keep voicing that.”

Liss urged people to “call your congresspeople and your other elected representatives” to express that, if so. You might also feel like this “legitimacy crisis” is sharpened, she says, by “the lack of standards that the Supreme Court holds themselves to in terms of accepting gifts.”

On an everyday scale, Liss advises businesses to make it very clear that they do want to provide services to LGBTQ+ communities, with signs and clear website notices.

“I personally do not want to go anywhere where I’m not welcome,” said Liss. “I don’t want to give a single dollar to someone who wouldn’t be excited to take my very gay dollar.”

This story contains reporting from The Associated Press.

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