Disclaimer: The information contained in this article should not be construed as legal advice on any subject matter.

by Kira Lingala

7/17/2023

On Friday, June 30th, the Supreme Court decided business owners could now legally discriminate against LGBTQ+ Americans and even other protected classes, such as BIPOC communities and women. 

The case, 303 Creative v. Elenis, concerns a website designer, Lorie Smith, who argued that Colorado’s anti-discrimination law would compel her to design a website for a gay couple, violating her First Amendment rights by forcing her to express support for something she was against.

In his majority opinion, Justice Neil Gorsuch displayed his affinity for what might seem like subtle nuance and plain language. In reality, his verbal gymnastics could very well serve as the foundation for a complete breakdown in civil rights protections. 

Justice Gorsuch has taken care to distinguish discrimination based on “message,” which is now legal, and discrimination based on “status,” which is still technically illegal. This means that business owners and merchants may refuse service to a gay couple if they are being asked to express a message through their work, but they cannot refuse service if they are simply selling something that does not contain a message. This distinction is hazy at best and entirely illusory at worst. In reality, any business owner can now claim that serving gay couples conflicts with their message.

One could easily imagine a chef or an architect making the same argument to justify discrimination. In fact, the baker who rose to infamy when he discriminated against a gay couple in the 2018 Masterpiece Cake Shop case has entered court once again, this time arguing that baking a cake celebrating a customer’s gender transition would violate his First Amendment rights.

The origins of 303 Creative are unusual because there is no queer couple claiming that they have been discriminated against. Usually, an injury needs to have occurred in order for a dispute to be heard by a court. Here, Lorie Smith herself brought the case against Colorado, claiming that her First Amendment rights were being infringed before it happened.

Because the only parties to the case are Lorie Smith and the Colorado government, the Court has the opportunity to hear the perspective of bigoted business owners, but not the people most affected by this issue: LGBTQ+ Americans. 

The decision to bring cases preemptively is part of a deliberate strategy by the Alliance Defending Freedom (ADF), the anti-LGBTQ+ group that is assisting business owners across the country in similar cases, with the intention of undermining LGBTQ+ civil rights.These preemptive actions are also squarely focused on cases like Smith’s, in which freedom of expression under the First Amendment serves as the basis for their claims.

ADF is funded by a large network of wealthy, right-wing power brokers, like the Koch and DeVos families. Fittingly enough, Supreme Court Justice Amy Coney Barrett has been paid to speak by the ADF on five occasions. She did not recuse herself from this case, despite the connection. 

Groups like the ADF work to undermine LGBTQ+ rights, as well as abortion rights and other issues. So it’s unsurprising that the potential ramifications of this decision go beyond the LGBTQ+ community. What if Smith refused to design a website for an interracial marriage, or simply any marriage between a non-white couple?

The Court does not rule on these questions today, but it opens the door to intrepid bigots. In the past, private schools resisted desegregation on First Amendment grounds, arguing that they had the right to send their children to schools that promoted the message that racial segregation was desirable. Under 303 Creative, could those schools now discriminate, arguing that allowing students of color or queer students into their classrooms conflicts with their educational message?

These hypotheticals are not unfounded fear mongering–they are rooted in historical realities that the court has chosen to ignore. At the same time, they are a reminder that our fates are linked: a decision that today brings harm to a gay couple can bring harm to any other protected group in the future.

The irony that this decision was handed down on the last day of Pride month might be more shocking if this year had not already seen a rising tide of hate against our community. Just in the past few months, corporations like Target and Anheuser-Busch have backed off from outwardly supporting our community in fear of a militant, right wing backlash. The past year has also seen a torrent of hateful legislation across the country at the state and local levels.

The actions include book bans on material that features queer relationships, restrictions on school curriculum that prevent queerness from being discussed, bans on gender affirming care for transgender youth (and even adults in some cases), and bathroom bans for all transgender people. 

The ultimate goal of these actions is not hidden behind closed doors. Daily Wire host Michael Knowles spoke the quiet part out loud at this year's CPAC conference when he stated: "Transgenderism must be eradicated from public life entirely." The translation, for those who need it, is that transgender people must be eradicated from public life. Anyone paying close attention can see that the genocidal vitriol expressed at CPAC will not stop with transgender people. 

It will also not stop with the LGBTQ+ community. Just a day before the Court ruled on LGBTQ+ discrimination, it found affirmative action to be unconstitutional, limiting access to educational opportunities for people of color across the country, particularly black, indigenous, and latinx students. Those book bans and curriculum changes targeting queer reading material are also targeting anti-racist material and the histories of people of color.

The fact of the matter is that there is a movement to subjugate and eventually eradicate those of us who do not conform to the white, cisgender, heterosexual, norm. Even white heterosexual women, like Lorie Smith herself, have been shown that their freedom is conditional and limited after last year’s Dobbs ruling eliminated the right to abortion.

The reality of what we are dealing with is frightening. It is not unreasonable to despair at the sight of it. That our President and Congress have claimed to be on our side means little when the structure of our government prevents them from taking action to protect us from hateful state governments and regressive institutions like the Supreme Court.

But none of this means that we can give up or leave behind those who are less fortunate. Here in Westchester County and New York more broadly, we have been lucky to have a government that stands by our community. But you need only travel a few hours out of state to be brought under the rule of governments who legislate hate. So what can we do? 

First, we cannot give up or shut down. We must continue speaking out and standing up for what we believe in. But we must also reach our hands out to our neighbors, in our community and across the country. Queer people are resilient and there are folx organizing in states where their rights are being violated to get people the resources and care they need. Organizations like The LOFT are doing their best to support our community here in Westchester. Supporting LGBTQ+ organizations like The LOFT allows your support to be multiplied to all the people a large organization can serve. 

None of this is to say you shouldn't vote or be involved in the political system. It may feel like the game is rigged, but voting still matters, especially at the local level. If you live in a state or locality controlled by hateful bigots, you can make a difference by campaigning for those who support us or even running for office yourself. Much of the hateful legislation currently threatening queer people is being passed at the local level and it is there, within our communities, that the most change can be made. 

If you are lucky enough to live in an area where your leaders support LGBTQ+ rights, take a closer look at their record. Could they be doing more? If so, take action to ask them to do more! And if they don't, take every step you can to ensure that the people holding power will stand by what they say. It is crucial to vote and be involved in the political process, but it is only the first step. The real work begins when we organize our communities to support each other and provide what we need. 

The struggles of the queer community, people of color, people with disabilities, and women are closely tied together. Those arrayed against one of us are against all of us. We cannot lie back and let them take the joy, safety, and freedom that is rightfully ours. So find your local LGBTQ+ Center and other organizations working toward justice, and sign up to help. This is no time to give up, to despair, or to fall back.

We draw our strength from being in community with one another and when we do so, we cannot be stopped. The fight is not over yet—it’s up to all of us to chart a path to freedom.

Kira Lingala is currently a student at the Benjamin N. Cardozo School of Law. She is passionate about LGBTQ+ rights and criminal justice reform. In her free time, Kira enjoys exploring her love of film, staying active, and dancing with friends.