“Again and again, this Court places the constitutional rights of Christian actors above those of secular Americans, gays and lesbians, atheists, and whomever else is left on the sidelines of justice.”
DARK DAY FOR GAY RIGHTS
As this issue goes to press, the Supreme Court has produced the most anti-gay opinion since Bowers v Hardwick in 1986. Written by Justice Gorsuch, the 6-3 decision eviscerates Colorado’s ban on anti-gay discrimination in public accommodation, ruling that web designer Lorie Smith’s company, 303 Creative, can start offering wedding websites to straight couples only based on her right to Free Speech. There seems to be nothing in the Court’s logic to prevent Smith, or someone like her, from let’s say, refusing to provide a wedding service to interracial couples.
In his strained rationale, Gorsuch insists that the state of Colorado is at fault for forcing unwanted speech down the throat of an innocent artist, who profoundly believes that marriage is a union between a man and a woman. But as Justice Sotomayor notes for her two colleagues on the left, Colorado’s law restricts actions, not speech. Even if you accept the notion that Smith is an “artist,” she is required as a business owner who is open to the public, to offer her services to one and all. If she disapproves of same-sex marriage, she can even make that known, for example by adding a Biblical quote to all her web pages. What she can’t do is preemptively bar a protected group of customers from accessing a particular service.
This was not technically a case about religious freedom, but of course, Smith is a devout Christian. Like others of her ilk, she claims that she’s happy to serve gay customers, but draws the line at weddings, because she disapproves of same-sex marriage. But the notion that her enterprise involves artistic speech is one that can be made by almost any wedding vendor; the cake baker, the planner, the florist, the decorator, everyone but the limo driver can claim some kind of artistry—and a Christian limo driver can probably come up with some creative element as well. As mentioned before, under Gorsuch’s reasoning, all of these people could refuse to serve, not just us, but interracial couples as well based on their right to Free Speech.
As for the common excuse that other companies provide websites for gay couples, we’ve heard that before from the various bakers and candlestick makers. But as Sotomayor noted, a long line of High Court cases involving race and sex bias in public accommodation has flatly rejected the notion that other options somehow excuse a company for barring women or Blacks.
Applying the Constitution is supposed to be a balancing act. You can’t impose your constitutional will while undermining the constitutional rights of another citizen. But again and again, this Court places the constitutional rights of Christian actors above those of secular Americans, gays and lesbians, atheists, and whomever else is left on the sidelines of justice. This time, they’re using the right to Free Speech, next time it will be some other constitutional mandate. It’s a disgrace.
COURTS PICK OFF LOW HANGING FRUIT
Ironically—and for what it’s worth—last month saw a number of GLBT victories in the federal courts as judges began to review some of the extraordinary laws enacted in various red states during the 2023 legislative session. In Arkansas, U.S. District Court Judge James Moody struck down the ban on transgender health care for youth, ruling that the ban violated the constitutional rights of patient and doctors alike. Judges in Indiana, Alabama and Florida also shelved transgender health care bans with temporary injunctions of one sort or another, but Judge Moody’s 80-page opinion was the first decision directly on the merits of this issue. That said, the other rulings also noted that the transgender plaintiffs were likely to win their cases once the litigation was complete.
Additionally we are waiting for the full U.S. Court of Appeals for the Fourth Circuit to hear arguments in challenges to health care restrictions out of West Virginia and North Carolina, both states obviously under the jurisdiction of the same circuit. Neither challenge had seen a ruling from the lower court, let alone a three-judge panel, so it was not standard procedure for the judges to skip ahead. Nonetheless, here we are.
This subject is headed to the justices for sure, and it probably won’t be the only transgender case they face. God help us.
BUT WAIT, THERE’S MORE!
We also saw two federal court wins in challenges to bans on drag performances. In early June, a Trump-nominated judge in Tennessee struck the Volunteer ban, writing that the law “reeks with constitutional maladies of vagueness and overbreadth fatal to statutes that regulate First Amendment rights.” Don’t you love judge-speak?
A few weeks later, a judge in Utah ruled that the City of St. George could not refuse to allow a drag performance in a public park. “Public spaces are not private spaces,” wrote U.S. District Court Judge David Nuffer. “Public spaces are not majority spaces. The First Amendment of the United States Constitution ensures that all citizens, popular or not, majority or minority, conventional or unconventional, have access to public spaces for public expression.”
And on June 24, a federal judge in Florida ruled that the Penis State cannot prevent Hamburger Mary’s restaurant in Orlando from hosting drag shows, issuing a temporary injunction against the new Florida drag ban.
I could go on. We also heard oral arguments before the full U.S. Court of Appeals of the Second Circuit on a challenge to Connecticut’s trans-friendly sports policy, and a Montana state court judge held the Treasure State in contempt for repeatedly refusing to adjust its policy on birth certificates after court rulings in favor of transgender citizens.
I also see an anti-GLBT ruling just emerged from the Fifth Circuit, but we tire of the law, n’est-ce pas? Personally, I’ve had more than enough for one column.
