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Supreme Court and Gay Rights
Supreme Court and Gay Rights
By Lily G Barnett
Posted: 2023-10-15T13:59:08Z

The League of Women Voters of Wake County’s own intern Lily Barnett gives us her take on the Supreme Court’s decisions this past summer regarding gay rights and discriminations.

By: Lily Barnett, LWV-Wake Summer Intern

With anti-equality movements on the rise, we take another look at 303 Creative LLC v. Elenis.

The Supreme Court’s decision in 303 Creative LLC v. Elenis shows a downward trend in the stability of gay rights in the United States. In a world where same-sex marriage is more accepted than ever, where every age group and region of the nation report over 50% approval according to Gallup, this appears antithetical to public opinion. But that didn’t stop the conservative majority from overruling Roe v. Wade. The Court’s opinion relies on many different principles and will doubtlessly have a noticeable effect on the future of the nation.

303 Creative LLC is not a typical Supreme Court case. There is no wronged party or recorded conflict with the law, instead there is a woman with fears that her home state of Colorado will force her to design a website for a gay marriage, which she claimed would be a violation of her First Amendment right to practice religion freely. The court agreed with the woman, stating that Colorado forcing her to make a website for a hypothetical gay couple would be a violation of her rights.

The arguments that were made in the majority opinion by Justice Gorsuch rely heavily on precedent and a nebulous idea of what the First Amendment’s Free Exercise clause entails. The case is not Lorie Smith v. Elenis, it’s 303 Creative LLC v. Elenis. Corporations aren’t protected by the clause, only people are. This Supreme Court has proven not to follow any strict beliefs or principles when it comes to their interpretation of the Constitution. Instead, they opt for ideological conclusions. In 2022, the Dobbs decision overruling Roe v. Wade, in which Gorsuch was concurring, was decided in a way that ignored the religious beliefs of most non-Christians. That 5-4 ruling banned, in all but name, abortions for women in many states. This shows that the court’s protection of religion beyond what is Constitutionally reasonable does not extend past Christian religion.

The dissent was written by Justice Sotomayor, who was joined by Justices Kagan and Jackson. In the beginning of her dissent, Justice Sotomayor takes specific care to emphasize the difference between action and speech and the application within the case. She argues that while speech is protected by the First Amendment’s Free Speech Clause, action is not and action is what the case is about.

She also discusses the 1964 Civil Rights Act as well as the Americans with Disabilities Act (1990) and the relationship they have with freedom of religion. Neither law explicitly mentions sex, which includes both gender identity and sexual orientation as established in Bostock v. Clayton County (2020), but many states passed legislation that includes it. Colorado’s “Colorado Anti-Discrimination Act” or CADA is one such piece of legislation.

Justice Sotomayor explicitly refers to the exception given exclusively to places that are used primarily for religious purposes in CADA as an argument against the majority’s claim of freedom of religion. The state of Colorado already protects the ability of religious institutions to discriminate with the Free Exercise Clause (though, an argument could be had over the morality of that). Colorado’s law, as well as the Civil Rights Act and ADA, are designed to protect the dignity of minority and oppressed groups, and that’s what they do. 

In a post-Citizens United world, corporations and businesses may have a right to free speech, but they don’t have a right to discrimination, action, or utilizing religion against an oppressed group. Colorado’s bill follows the heart, if not the letter, of both the Civil Rights Act and the Americans with Disabilities Act. The majority’s decision marks not only a hit to gay rights, but to the CRA and ADA as well.