'Sweeping new right to discriminate': Legal experts warn on latest anti-LGBTQ SCOTUS case that’s 'unlikely to go well'
The far-right U.S. Supreme Court on Tuesday made an unusual move: it will hear arguments in a legal battle that effectively doesn’t even exist. The Court is once again diving headfirst into a First Amendment case involving the rights of LGBTQ people to exist and function equally in American society and religious right extremists who are demanding special rights to impose their beliefs on top of valid laws.
The Court this fall will hear arguments of a Colorado Christian who says she wants to expand her business into producing wedding websites but doesn’t want to do business with LGBTQ couples, who she says violate her religious beliefs.
Lorie Smith has not expanded her business and has not been approached by any same-sex couples to produce a wedding website for them. No one has been harmed in the “case,” which officially is 303 Creative v. Elenis. Some say since no harm has been shown, the Supreme Court should not have taken the case, but it’s clear they have an agenda.
Smith wants to post a statement saying she will not work with same-sex couples, but that would violate Colorado’s non-discrimination law. She could just set up shop and decide what to do if she is approached by a same-sex couple. Instead, the Supreme Court’s ultra-conservative (and some say theocratic) justices on the right have decided this case merits their review.
The Court has already made clear how it views the case. Smith is not a small business person but “an artist,” being “compelled,” which implies they see the case as an issue of free speech and freedom of expression:
The “Supreme Court said it would take up the case to consider ‘whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.'”
“Spoiler alert,” warns Vox’s Ian Millhiser. “This is unlikely to go well for LGBTQ people.”
He adds: “The Supreme Court appears eager to give religious conservatives sweeping exemptions from the law,” and adds that the Court “appears ready to come out and say that at least some businesses have a constitutional right to discriminate.”
Smith, Millhiser writes, “wants the Supreme Court to give her license to design wedding websites for opposite-sex couples — and only for opposite-sex couples.”
Noting that the “Supreme Court ducked this question in Masterpiece Cakeshop, but will now address it with a 6–3 conservative supermajority,” Slate’s Mark Joseph Stern writes that it “is very likely that the court will cut back LGBTQ non-discrimination laws’ application to artists, especially in the context of same-sex weddings.”
Stern calls the case “a direct threat to government’s ability to bar discrimination in public accommodations.” He says the case “reaches far beyond LGBTQ non-discrimination laws, threatening ALL civil rights laws that, as SCOTUS put it, ‘compel an artist to speak or stay silent.'”
“Dark days ahead,” Stern says. “This case is so much more than a culture war skirmish. It’s the culmination of a decades-long conservative assault on the constitutional foundations of our modern civil rights regime.”
Smith is represented by Alliance Defending Freedom, a legal firm that appears on the Southern Poverty Law Center’s list of anti-gay hate groups.
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