Higher Thought Meets the Supreme Court

Like millions of American liberals, I’m pretty freaked out by our current Supreme Court.

Linda Greenhouse, the Pulitzer Prize-winning reporter who has been writing about the Court for decades in the New York Times authored a very powerful column recently in which described all the harrowing “achievements” of the Roberts Court over the last 18 years, up to and including the three conservative rulings that were handed down a couple of weeks ago pertaining to affirmative action, discrimination against gay people, and student loan forgiveness.

When I initially read about these rulings, I thought all of them were obscene, harsh, detached from real life as real people are actually living it.

But then I looked a little closer at the case of the Colorado web designer who doesn’t want to be forced to provide wedding websites for gay people once that state’s anti-discrimination law goes into effect. It prompted me to write the following response to Linda Greenhouse’s column, which the Times published (amongst hundreds of others of comments on the piece):

I love Ms. Greenhouse’s columns. Also, I’m a lifelong liberal, and not only do I have gay friends, I have close gay family — loved ones right in the center of my heart. Yet I disagree with the prevailing liberal analysis (beautifully articulated here) of the web designer case. I’m no fan of Justice Gorsuch, but I agree with him that it IS a First Amendment matter, not a religious one, and it would be unconstitutional to — as Mr. Gorsuch put it — “compel speech,” just as it’s unconstitutional to repress it.

“I’m a freelance ghostwriter. Though I write for clients, I have to access my own creativity and spirit, and all my work feels personal to me, even if I’m anonymous. So if, say, a Christian nationalist group wanted to hire me to write a persuasive piece about the evils of transgenderism, I would insist on my right to decline, based on my values.

“I know Christian nationalists are not a protected class, whereas LGBTQ people are. But what’s similar is that website creation is also an art form, not a brick-and-mortar service like, say, a wedding cake. As such it IS an expression of the designer’s “speech,” not a simple public offering. And given that the Court’s opinion here was explicitly grounded in the First Amendment, NOT on the question of religious liberty, I disagree with Justice Sotomayor (whom I esteem highly) that this decision opens the door to further discrimination against gay people.“

– Marc

Susan’s Reaction

To me, the important question is not whether or how Lorie Smith, the wannabe-web-designer plaintiff in the recent 303 Creative decision by the Supreme Court, will or will not create particular websites.

The real question is, now that SCOTUS has determined that discrimination is permissible where “speech” is involved, how will everyone else be affected?

For instance:

Can a lesbian web designer (like me) who creates only custom-designed sites refuse to create a site for a heterosexual client? A male client? A Latinx client? Etc.

Can a building contractor refuse to work with a trans homeowner because every building job involves personal expertise, input, and artistry?

Can a hairdresser legally refuse business by saying, “If a human identifies as anything other than a man/woman, please seek services at a local pet groomer,” as Christine Geiger recently did in Michigan (thereby compounding discrimination with rudeness)?

It seems to me that once any discrimination whatsoever is countenanced, the resultant gray areas between allowable and proscribed discrimination become elastic, subject to contention. Boundaries that were once clear can now shift with political winds, growing less or more repressive depending upon who’s in charge of the courts. It’s impossible for me to imagine how the multitude of injustices that will be unleashed by such a profound and unprecedented sanctioning of “permissible” discrimination can possibly be in society’s best interests.

And besides being based upon a hypothetical premise, the decision is totally unnecessary to protect most business owners. As anyone who is in business can attest, there are many legitimate and unarguable ways of “refusing” work. One can be too busy, a project is not within one’s realm of expertise, it’s too big/too small, you or your staff will be on vacation/out of the country/attending to an emergency… etc. Which is why the bringers of this litigation had to find a fictitious victim.

I’m forced to agree with dissenting Justice Sotomayor that “the immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status.”

Personally, I can’t see it as intending anything else. In fact, the moment I heard the decision announced, I could feel my own status drop a notch, back to pre-Obergefell days. I remembered a vacation my wife and I took a few years ago. We stayed in a rental cottage with one bed upstairs, and a downstairs living area. As the hostess showed us around, she gestured towards the couch and said (apropos of nothing) “Well, I don’t know which of you gals will get the bed and which one of you will sleep down here.”

We could have corrected her. In the past, we almost certainly would have. But now—now that every couple could be married, and all discrimination was prohibited—neither of us felt compelled to fight this particular, now petty, battle. After decades of dealing with casual and not-so-casual prejudice, we could finally shrug it off, knowing that our rights were as fully unassailable as any straight couple’s.

But with the 303 Creative decision, that ugly door has been pried open again. There is once again a chasm between what my wife and I know in ourselves, and what others are free assume about us and how they can treat us based on those prejudices.

A couple of weeks ago, we were human beings with the same rights and responsibilities as everyone else. Now, the highest court in the land has given the nod for us to be treated differently. Of course, LGBTQ+ people are hardly the only ones marginalized in this society. But giving any discrimination the legal stamp of approval should be a bridge too far for all.

– Susan