Now that the legal door has been opened to anti-LGBTQ+ bigots or racists, there’s just no telling how far the Supreme Court’s license to discriminate will go.
Last month, the court’s conservative majority ruled that a website designer in Colorado would not violate the state’s anti-discrimination law if she refused to create wedding websites for gay couples.
Mind you, Lorie Smith, the proprietor of 303 Creative, was not actually creating wedding websites at that point, but she wanted to know in advance whether it would be OK to turn away gay people because she abhors same-sex marriage.
Smith is represented by the right-wing Christian legal juggernaut Alliance Defending Freedom, which is hellbent on reversing LGBTQ+ rights.
To Smith, her lawyers attested, same-sex marriage “is not only problematic because it violates God’s will, but also because it harms society and children because marriage between one man and one woman is a fundamental building block of society and the ideal arrangement for the rearing of children.”
In telling their client’s story, the ADF laid it on thick: “Lorie believes that our culture’s movement away from God’s design for marriage is particularly pronounced in the wake of the Supreme Court’s Obergefell v. Hodges decision, which held that there is a constitutional right to same-sex marriage.”
I thought it was bizarre to be able to bring a lawsuit with imaginary facts, but as Berkeley Law Dean Erwin Chemerinsky explained to me, federal law allows for such a thing, especially if the situation seems likely to arise eventually.
“No one should have to eat a mushroom in order to know if it’s poisonous or not,” Chemerinsky said. “She says, ‘I am not going to set up this business if I have to serve same-sex couples, so let me know in advance.’ ” Fair enough.
As for reports that Smith made up the gay couple she claimed had contacted her for wedding website services (even though she hadn’t launched that business yet, hmmmm), Chemerinsky said it no longer matters whether they existed or not. “Once the court decides,” he said, “you can’t challenge the case.”
The Supreme Court said, essentially, “Why, yes, of course, Ms. Smith, if same-sex marriage goes against your beliefs, then by all means you may refuse service.” The opinion did not turn on the fact that her beliefs arise from her religion (although they do), but that her freedom of expression — her First Amendment rights — would be violated if Colorado forced her to create websites for same-sex couples, or fined her for not doing so.
Making a wedding website may indeed involve the maker’s creative expression. But what else falls into that category?
It is too soon to see exactly what ripple effects this unfortunate decision will have. But you can be sure it will be construed in many corners as a license to discriminate based on personal beliefs.
As Colorado Attorney Gen. Phil Weiser put it after the decision came down, “A business may think that it can refuse to serve interracial couples because it believes interracial marriage is wrong. A payroll company may … refuse service to women-owned businesses because the business owner believes women should not work outside the home.”
Thanks to the Supreme Court, the possibilities for discriminating against those who have traditionally been protected by civil rights laws are endless.
Heckuva job, justices.
Robin Abcarian is an opinion columnist at the Los Angeles Times. She writes about news, politics and culture.
