As the U.S. Supreme Court tackles another culture war issue, it is unfolding against a backdrop of diminishing stature, blatant conflicts of interest, and questionable behavior.
At issue this week is whether Lorie Smith, a Christian web designer from Colorado, and her company, 303 Creative LLC, are required to provide wedding web design services to same-sex couples. Smith believes her Christian faith prevents her from creating websites for gay clients, even though such a website would otherwise be identical to one she would design for a straight couple.
Importantly, the case presents a simple hypothesis. Smith has never created wedding websites before and does not create wedding websites for any clients, let alone same sex couples.
Smith argues that subjecting his expressive or artistic services to Colorado’s public accommodation law would violate his right to free speech, as it would require him to create posts inconsistent with his religious beliefs.
While this may seem innocuous to many at first glance, make no mistake: this case is about future shame and has dramatic implications for creative expressions that go far beyond same-sex couples and wedding cakes.
After the Civil War, states began enacting laws guaranteeing access to public housing regardless of race. Colorado passed its first public housing law in 1885, less than a decade after gaining statehood. Since then, states have continued to expand these laws to prohibit discrimination based on other protected characteristics.
Under Colorado law, companies that choose to serve the general public cannot refuse to serve people because of their race, religion, gender, disability, sexual orientation, marital status, national classification or other protected classification.
Colorado Attorney General Phil Weiser, whose office argued the case, aptly said, “The principle we’re fighting for is that if you’re a public company, you have to serve everyone, and you don’t you can’t engage in the practice that we’ ‘ve seen in our history: ‘No Jews allowed’, ‘No blacks allowed’”.
During oral argument this week, Judge Sonia Sotomayer made it clear that a ruling against Colorado would mark “the first time in Supreme Court history” that she would allow a commercial enterprise open to the public and serving the public to “refuse to serve a customer”. based on race, sex, religion or sexual orientation.
In a twist of irony, Judge Ketanji Brown Jackson asked another guess if a mall Santa could refuse to have his picture taken with black children. In response, Judge Samuel Alito, remarkably, asked if a black Santa Claus across the mall could refuse to have his picture taken with a child in Ku Klux Klan attire. Last time I checked, outfits or Klu Klux Klan membership were not considered a protected characteristic.
In 2018, the Supreme Court sidestepped a similar question regarding Jack Phillips, a Colorado baker who refused to bake a wedding cake for a gay couple.
Both Smith and Phillips were represented by the Alliance to Defend Liberty, a right-wing advocacy group that boasts of representing parties in 14 Supreme Court victories since 2011, including Dobbs, who overthrew Roe.
It’s a safe bet that the Court, with a conservative majority of six justices largely appointed by former President Donald Trump, will side with Smith.
Such a result will certainly exacerbate Americans’ record confidence in the Supreme Court, which is rapidly becoming more of a political institution than a judicial one. Only 47% of Americans said they have a “great” or “good amount” of trust in the Supreme Court, down 20 percentage points from 2020 and the lowest level of trust among Americans since 1972.
As the Supreme Court goes overboard and uses the court system to strip equal protections, the institution itself is in dire need of reform and accountability.
Chief Justice John Roberts did not disclose the findings of the court’s investigation into the leaked draft decision quashing Roe v. Wade. He also failed to respond substantially to questions about Christian minister Rob Schenck’s claims that he was given advance notice of the outcome of a major 2014 ruling by Justice Alito after two conservative allies dined at his house. And, the Supreme Court did not censure Justice Clarence Thomas for his vote, the lone dissenter, in a case in which his wife Ginni clearly had a stake.
To help restore trust, Congress should conduct its own investigation into these issues and pass long-awaited legislation creating a code of ethics for the Supreme Court.
Meanwhile, granting a license to discriminate against owners of business enterprises open to the public is a dangerous idea that rightly died after the Civil War.
Doug Friednash grew up in Denver and is a partner at the law firm Brownstein Hyatt Farber and Schreck. He is the former chief of staff for Governor John Hickenlooper.
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