After this Supreme Court term, there can be little doubt that its 6-member conservative supermajority is using its power to travel backward in time to our less enlightened past.
We are headed back to a past where women didn’t have a right to control their reproduction; a past where discrimination based on race, gender, and sexuality was rampant; and a past where questions of ethics were often ignored even in the judiciary.
Historians who will write of this lag in progress have their eyes on this Court.
Colorado Attorney General Phil Weiser, whose office argued the 303 Creative case decided last week, aptly told me that our “radical Supreme Court is rolling back protections that have been relied on and are part of our democratic fabric.”
Colorado’s own Supreme Court Justice Neil Gorsuch, writing for the majority in 303 Creative vs. Elenis, grants a business open to the public — for the first time in our nation’s history — a constitutional license to discriminate and refuse to serve members of a protected class.
And, if that wasn’t enough, the Court gave businesses the right to future shame members of protected classes by posting a notice that says things like, “no wedding websites will be sold if they will be used for gay marriages”.
Gorsuch’s writing in 303 Creative is rich in its ironies and startling implications that highlight just how far this court will go to be the country’s major battleground for its regressive social agenda.
303 Creative was a made-up case. There was no live dispute and the case was a sham. Colorado Christian graphic web designer, Lorie Smith, has never made or sold a wedding website. Colorado never enforced its antidiscrimination laws against her. Smith though said she believes that God is calling her to explain his true story about marriage — the union between a man and woman — and wants her company to sell wedding websites to the public, but not to same-sex couples.
Adding insult to hypothetical injury, Smith claimed in her legal filings that a gay man named Stewart contacted her in September 2016 about his wedding to Mike “early next year.” In a February 2017 filing, Smith revealed that though she did not need a request to pursue the case, she had, in fact, received one. An appendix to the filing included a website request form submitted by Stewart on Sept. 21, 2016, a few days after the lawsuit was filed. It also included a Feb. 1, 2017 affidavit from Smith stating that Stewart’s request had been received. According to the pleadings, he allegedly wrote that they “would love some design work done for our invites, placenames, etc. We might also stretch to a website.” Stewart included his phone number, email address, and the URL of his own website. But the man who was identified as Stewart confirmed this past week that he never submitted the request and has been happily married to a woman for 15 years.
In their brief to the Supreme Court in August, the Colorado Attorney General wrote that it did not amount to an actual request for a website and the company did not take any steps to verify that a “genuine prospective customer submitted the form.”
Even without these fake facts, this Court should have never handpicked this hypothetical as a pre-enforcement challenge, as such challenges are typically reserved for new laws and not ones that have been on the books for years. Here, sexual orientation and gender identity were added as a protected class to Colorado’s public accommodations 15 years ago.
The Court nevertheless chose this fake “case” to dismantle public accommodation laws that are deeply rooted in our nation’s history. After the Civil War, states began enacting laws guaranteeing access to public accommodations regardless of race or color. Colorado passed its first public accommodations law in 1885, less than a decade after it achieved statehood. In the decades that have followed, states like Colorado continued to broaden these laws.
In fact, in 1979, Justice Gorsuch’s mother, Rep. Anne Gorsuch, served in the Colorado House of Representatives, where she co-sponsored House Bill 1355, which reorganized the laws concerning, among other things, unfair and discriminatory practices in employment and public accommodations. At that time, the legislation’s public accommodation clause prohibited discrimination based on “handicap, race, creed, color, sex, marital status, national origin, or ancestry.”
The legislation was bi-partisan and her co-sponsorship suggests that she understood the fundamental importance of this civil rights law.
Colorado’s public accommodations law was amended later to prohibit discrimination based on other protected characteristics, including sexual orientation. More than 20 states have antidiscrimination laws like Colorado’s.
Justice Gorsuch however used the first amendment to unwind Colorado’s longstanding precedent, with deeply troubling ramifications.
The decision gives a green light to any business that claims to provide expressive interests or artistic content, a license to discriminate and shame, violating antidiscrimination laws. The court’s reasoning can be extended to apply equally to other protected classifications such as race, disability, sex, and religion.
Here are some examples of how the Court has opened the door to discrimination, courtesy of Justice Sotomayer and Attorney General Weiser. A website designer could refuse to create a wedding website for an interracial couple because they view it as a sin. A stationer can refuse to sell a birth announcement for a disabled couple because she opposes their having a child. A photographer could refuse to take pictures for women-owned businesses because they don’t believe women should work. A landscaper could refuse to work for a Mormon or a Jew because they fear the garden could express a sinful or illegitimate religion.
The decision reminds me of the famous novel, Animal Farm by George Orwell, a satirical allegory of the Russian Revolution. It tells the story of farm animals who rebel against their human farmer hoping to create a society where the animals can be equal and free. The pigs, who subsequently control the government proclaim: “all animals are equal, but some animals are more equal than others”.
Here, the Court’s conservative majority is like the pigs in Animal Farm. While they pay lip service to the absolute equality of their citizens, they nevertheless give special power and privileges to businesses to discriminate against protected groups of people. Wasn’t our nation founded on the principle of equal justice for all?
Public confidence in the court is at record lows. In the wake of this Court’s ethical issues and social engineering, Americans have already delivered political blows to Republicans in last year’s midterm election. Expect this to play out again in next year’s presidential and senate elections as Democrats and Republicans continue to grapple with a code of ethics for the Court as well as term limits.
In the meantime, we would all be wise to harken “the better angels of our nature”, as Abraham Lincoln did one hundred and sixty-two years ago on the brink of the Civil War.
Doug Friednash grew up in Denver and is a partner with the law firm Brownstein Hyatt Farber and Schreck. He is the former chief of staff for Gov. John Hickenlooper.
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