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February 24, 2022 11:18 am MST

The Rise Of SCOTUS Case "Hatevertising"

  • by: Colorado Pols
Need a website? Don’t like gay people? Find me at SCOTUS!

Westword’s Michael Roberts takes a look today at another case of a Colorado business owner citing their “deeply held religious beliefs” as the reason they cannot perform services they otherwise offer to the general public for LGBTQ+ people headed for arguments this fall before the U.S. Supreme Court. This comes in the wake of another Supreme Court case decided in favor of Lakewood cake baker Jack Phillips, who had refused to bake a wedding cake for a gay couple. That case was decided in favor of Phillips without addressing the fundamental question in the case, which is whether Phillips had the right to discriminate in his delivery of a service to the public against a protected class of person under Colorado law.

But as it turns out, there’s no shortage of bigots in the world:

The U.S. Supreme Court is expected to hear oral arguments this fall in a lawsuit filed by Lorie Smith of [NO FREE ADVERTISING FROM US–Pols], who has refused to provide web services for gay weddings because she objects to same-sex couplings on religious grounds. The court announced that it would take the case on February 22.

Working on Smith’s behalf is the Alliance Defending Freedom, the same conservative law firm that backed Jack Phillips, owner of Lakewood’s Masterpiece Cakeshop, in a case stemming from his refusal to bake a wedding cake for a gay couple, Charlie Craig and David Mullins, also because of his faith. The U.S. Supreme Court ruled in Phillips’s favor in 2018, albeit on fairly narrow grounds.

Since then, however, the court has become decidedly more conservative with the addition of Brett Kavanaugh and Amy Coney Barrett, both appointed by former president Donald Trump. As a result, a judgment in Smith’s favor could expand the Masterpiece Cakeshop opinion in ways that alarm One Colorado, which describes itself as “the state’s leading advocacy organization dedicated to advancing equality for lesbian, gay, bisexual, transgender, and queer (LGBTQ) Coloradans.”

Now first of all, we seriously doubt there are as many LGBTQ+ couples in Colorado looking for web sites to commemorate their union as, you know, wedding cakes. Most people we know handle the online component of their nuptials with a Facebook event page and a link to a gift registry or two.

And that makes sense because as it turns out, the subject of this latest case does not actually appear to have ever been asked to make a gay marriage website:

Smith’s complaint, filed on September 20, 2016, has a broader scope. The ADF characterizes it as a “pre-enforcement challenge” [Pols emphasis] against the Colorado Anti-Discrimination Act (CADA), which “prohibits creative professionals from expressing any views about marriage that could indicate someone is ‘unwelcome, objectionable, unacceptable, or undesirable’ because of their sexual orientation or that suggests that the designer won’t create particular expressive works because of those beliefs.” The ADF claims that CADA prevents Smith from explaining online that she won’t “create websites and graphics celebrating same-sex weddings” because they “violate her conscience. Lorie’s faith teaches her that marriage is between one man and one woman.”

You see, this isn’t about an actual case of discrimination at all. Lori Smith is just so worried that an LGBTQ+ couple might come along wanting her to make a website that she needed to file suit to make sure in advance that she could discriminate against them! The lack of an actual injury to resolve resulted in the case being dismissed by the 10th Circuit before the 6-3 conservative SCOTUS decided to hear it.

Jack Phillips claimed that his self-imposed prohibition on selling wedding cakes while his case was proceeding cost him 40% of his business. In the aftermath, though, and the nationwide publicity and adulation Phillips received from the religious right, we highly doubt Phillips is hurting for customers. As for Lorie Smith, who appears to have contrived a grievance out of thin air in order to get her name in a case before the U.S. Supreme Court, we have no idea how much web design business she gets.

But she’s probably about to get more. And that appears to be the whole point.

Hate is a guerilla marketing strategy now.


4 thoughts on “The Rise Of SCOTUS Case “Hatevertising”

  1. Phillips moved his cake shop to south Lakewood. It stayed open during Covid and appears to be doing fine now. The  40% drop off was probably , like all other in-person businesses, due to the pandemic. 

  2. I'm old enough to remember when the Supreme Court would not take a case without a "real" cause of action — you know, like someone actually being fined, or banned from a school, or not begin able to carry a gun. 

    We now have a Court willing to accept someone concerned about what might happen if they advertised they would not do gay wedding websites; or a case where a student was initially told he couldn't use a school's single-sex bathrooms but then was allowed to, or a case where the law banning transport of weapons in some circumstances was reconsidered and then repealed and THEN people went to court. 

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