June 30, 2023 10:51 AM UTC

SCOTUS Rolls Back Discrimination Law Via Contrived Colorado Case

•  
• by: Colorado Pols

UPDATE: Statement from Rep. Brianna Titone of Arvada:

“The decision by the Supreme Court undermines Colorado’s anti-discrimination protections, directly attacks the rights of LGBTQ Americans and allows businesses to deny services based on ‘First Amendment’ grounds to anyone due to their gender, race, religion, or who they love.

The US Supreme Court has legalized discrimination and bigotry against LGBTQ people and has endangered equal protections under the law. With one decision, the Court threatens decades of progress to secure the freedoms and rights of LGBTQ Americans, and has threatened the rights of Americans to equally and fairly access public accommodations.

Across the country, over 500 anti-LGBTQ bills have been introduced that put the community in danger of harm, preventing us from freely expressing ourselves or being able to make personal health care decisions. We’ve made great progress in recent years to fight against the increasing anti-LGBTQ+ attacks. We secured the right to access gender affirming care and abortion care, added anti-discrimination protection language to include gender identity and gender expression, and strengthened anti-discrimination protections for people in the workplace. While our new laws ensure Colorado is a safer place for members of the LGBTQ+ community to call home, we still have hills to climb to combat the rising anti-LGBTQ vitriol.

Colorado Democrats will continue to fight for your freedoms and stand up against discrimination, bigotry, and violence against the LGBTQ+ community.”

—–

9NEWS’ Janet Oravetz reports on the decision handed down this morning by the U.S. Supreme Court in the case of 303 Creative v. Elenis, in which Colorado-based web designer Lorie Smith mounted what’s known as a “pre-enforcement challenge” to Colorado laws protecting LGBTQ+ people from discrimination in public accommodation. Today’s 6-3 ruling, authored by Colorado’s own Justice Neil Gorsuch, upheld Smith’s right to refuse service in the event she was ever asked to create a website for a gay couple’s wedding:

The court ruled 6-3 for Lorie Smith, the owner of 303 Creative, who creates websites and other graphic work. Justice Neil Gorsuch wrote the majority opinion. Justice Sonia Sotomayor wrote the dissenting opinion. She was joined in her dissent by Justices Elena Kagan and Kentanji Brown Jackson.

Smith offers graphic and website design services and wants to expand to wedding website services, but she said her religious beliefs would lead her to decline any request from a same-sex couple to design a wedding website.

Smith also wants to post a statement on her website about her beliefs, but that would run afoul of a Colorado anti-discrimination law. Smith had argued the law violates her free speech and religious rights.

Attorney General Phil Weiser, who argued the state’s case in 303 Creative v. Elenis, warned in a statement today that this decision “threatens to destabilize our public marketplace.”

“Today’s sweeping decision threatens to destabilize our public marketplace and encourage all kinds of businesses—not just those serving weddings—to claim a First Amendment free speech right to refuse service to certain customers. A business may think that it can refuse to serve interracial couples because it believes interracial marriage is wrong. A payroll company may read today’s opinion as license to refuse service to women-owned businesses because the businessowner believes women should not work outside the home. A bookseller of religious texts may believe it can refuse to sell books to a member of the Church of Jesus Christ of Latter-day Saints because he doesn’t believe it to be a legitimate religion. And so on.

“This case is not about websites or speech—but the ability of all to enter the public marketplace as equals. [Pols emphasis] Equality and fairness are core Colorado values and we have protected people in our state from discrimination in public accommodations for more than 100 years. We will work hard to ensure that, within the confines of the Court’s opinion, we take action to hold accountable those who engage in unlawful discrimination.”

Although Smith’s case was argued before the court as a “pre-enforcement challenge,” there’s been some reporting over the last few days that suggests at one point Smith and/or her legal handlers at the Alliance Defending Freedom may have attempted to fabricate a request for the kind of services Smith wants to be able to deny. Michael Karlik at the Colorado Springs Gazette’s political blog has that story:

On June 29…The New Republic reported that part of the evidence submitted in the lawsuit of 303 Creative v. Elenis references a purportedly gay customer who sought the services of plaintiff Lorie Smith, but who may not exist…

Colorado Politics contacted Stewart using the email address also in the filing, where he confirmed The New Republic’s account.

“I have been happily married (to a woman) for the last 15 years. I have never contacted Lorie Smith about making a website,” he said on Thursday.

There could be penalties for any lawyers who may have been involved in fabricating evidence in this case, but if you’re hoping for a do-over of this decision you’ll have to wait until there’s a very different U.S. Supreme Court hearing the case. Even though the wording revolves around free speech rights and artistic expression, the fear is that this decision will lead to many more cases of businesses asserting their “religious freedom” to discriminate against customers in other ways. Very ugly times could be ahead.

The only thing we can say, as with yesterday’s ruling against affirmative action and the Dobbs decision itself, is that the seeds of all this were sown by the treacherous Republican takeover of the U.S. Supreme Court–a process that began with the refusal of the Republican-controlled Senate to give Merrick Garland a fair hearing in 2016, citing “principles” they would abandon a few years later to confirm Amy Coney Barrett.

As for Colorado’s “native son” Neil Gorsuch? He just contravened the will of the majority of Colorado voters. Again. While Gorsuch will never personally face the voters, Republicans who helped put in him his lifetime office do every election.

The only thing to do now is to make these Supreme Court decisions electorally Pyrrhic victories.