Civil and Human Rights

Supreme Court weakened Colorado’s nondiscrimination law. What’s next for LGBTQ rights?

The Supreme Court in an expected move on Friday ruled that Lorie Smith, a Colorado-based Christian web designer, is not beholden to a state law prohibiting discrimination in public accommodations and may legally refuse services to LGBTQ people.

The ruling, which states that Colorado’s anti-discrimination law violates Smith’s First Amendment rights by requiring her to create wedding websites for same-sex couples – unions she believes to be “false” – leaves a question mark for the future of LGBTQ nondiscrimination protections in the U.S.

It’s not clear how exactly Friday’s ruling will impact the rights of LGBTQ Americans moving forward, but LGBTQ activists and legal scholars have some ideas.

“This is a disappointing decision that invites further discrimination against the LGBTQ community,” said Janson Wu, the executive director of GLBTQ Legal Advocates & Defenders (GLAD), a nonprofit legal rights group. “It’s also highly fact-specific and authorizes only a narrow exception to Colorado’s nondiscrimination law.”

That means the ruling, which is now binding precedent, does not apply to other businesses or other sections of Colorado’s nondiscrimination law. It also doesn’t automatically weaken anti-discrimination laws or statutes in other states, although the ruling is likely to be cited in future cases challenging them on similar grounds

“Whether you’re an LGBT graphic designer, a Jewish calligrapher, an Atheist speechwriter, or a pro-life photographer, the government shouldn’t force any of us to say something we don’t believe,” Smith said Friday in a statement released by her attorneys at the Alliance Defending Freedom, a conservative Christian legal organization.

The group’s President, CEO and general counsel, Kristen Waggoner, who argued before the court on behalf of Smith and 303 Creative, on Friday said the court in siding with Smith reiterated that it is “unconstitutional for the state to eliminate from the public square ideas it dislikes, including the belief that marriage is the union of husband and wife.”

“Disagreement isn’t discrimination, and the government can’t mislabel speech as discrimination to censor it,” she said.

In 27 states and Washington, D.C., public accommodations laws prohibit discrimination based on sexual orientation and gender identity, according to the Movement Advancement Project, which tracks state-level policies impacting LGBTQ people. One state – Wisconsin – prohibits discrimination based only on sexual orientation.

“We have no doubt that our opponents will try to use this decision to justify discrimination in other contexts that are very different from the 303 Creative case,” said Wu. “We expect to see a flood of litigation in the coming years seeking to apply the holding of this case where it should not apply, given the very specific facts upon which this decision is based.”

But while it’s expected that others will use the case to bolster their own arguments against nondiscrimination protections, “we believe, going forward, our opponents will have a high hurdle in court to prove that their business is similar to the very specific, original content that 303 Creative creates,” Wu said.

Justice Neil Gorsuch on Friday noted the narrow scope of the case, writing in Friday’s decision that “there are no doubt innumerable goods and services that no one could argue implicate the First Amendment.” The government also has a “compelling interest” in eliminating discrimination in places of public accommodation, he wrote.

But Gorsuch and the court’s conservative majority, by siding with Smith, effectively weakened the state of Colorado’s ability to do just that, according to Sarah Warbelow, the legal director for the Human Rights Campaign, the nation’s largest LGBTQ civil rights group.

“The state can no longer as robustly enforce its nondiscrimination laws as it once could,” Warbelow said, “and while these exemptions are narrow, they do exist.”

Still, Warbelow said, “there’s no reason to believe that Justice Gorsuch wants to see widespread discrimination against LGBTQ people.”

“The court, despite the fact that I believe the ruling is incorrect and not an appropriate interpretation of the Constitution, does at least sort of contemplate that there is an intentional narrowness to the decision that shouldn’t be applied broadly,” she said.

“Justice Gorsuch makes clear that there is nothing stopping states from adopting nondiscrimination laws that protect LGBTQ people,” Warbelow added, “but we also know that there are organizations that want to undermine all nondiscrimination protections for LGBTQ folks, and they’re gonna continue to bring litigation in an effort to use this decision to justify more and more discrimination against LGBTQ people.”

Some, including Justice Sonia Sotomayor in a biting dissent on Friday, have warned that the Supreme Court’s decision to protect Smith’s and 303 Creative’s right to refuse services to LGBTQ couples won’t just impact LGBTQ people, and could very well open the door for discrimination against other protected groups.

“It’s hard to see, based on the logic of that decision, how that same company couldn’t also, for instance, refuse to do a wedding website for an interfaith couple if they disagreed with interfaith marriages,” said Praveen Fernandes, vice president for the Constitutional Accountability Center, a progressive legal think tank in Washington. Religion is also protected under Colorado’s public accommodations statute.

“The court’s decision by its logic extends an exception, potentially, to individuals who are protected by other parts of that statute – who are protected classes,” Fernandes said.

That said, just because a business is permitted to discriminate against a certain group of people, doesn’t mean that it will, Fernandes said, and most American adults support nondiscrimination protections for LGBTQ people.

“Companies that choose to have discriminatory policies will still have to grapple with the societal progress that we’ve made in accepting the LGBTQ population and the very real reality that the public might reject providers that want to discriminate against our friends, or neighbors or family members,” he said.

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