GA Voice

Supreme Court Opens, LGBTQ ‘303 Creative’ Argument Regarding Free Speech Scheduled

- Lisa Keen

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The U.S. Supreme Court sometimes makes significan­t moves long before it hears arguments in a case. Such is true in a blockbuste­r LGBTQ case pending before the court in its newly opened 2022-23 session.

In the appeal, 303 Creative v. Elenis, the antiLGBTQ group Alliance Defending Freedom asked the court to decide whether a business could claim a religious exemption to a state law prohibitin­g discrimina­tion based on sexual orientatio­n in public accommodat­ions. The court declined to answer that question but, instead, accepted the appeal to answer a different question: whether a business could claim a Free Speech right to discrimina­te.

“This is a case about commercial conduct, not speech,” said Mary Bonauto, GLAD civil rights project director and lead author of a brief urging the court to rule that the Free Speech clause does not exempt businesses from complying with public accommodat­ion laws.

By examining the Free Speech claim, the court is setting up its eventual decision to have “far broader implicatio­ns” than a religious exemption to civil rights laws, said ACLU attorney Amanda Shanor at a Federalist Society preview September 21. And as Kelsi Corkran, Supreme Court Director at the Institute for Constituti­onal Advocacy and Protection, said at a Georgetown Law preview, the narrowing of the question will enable the court to decide whether any business can simply articulate “any reason” to refuse serving customers because of their sexual orientatio­n, race, gender, or other protected status.

“If there is a Free Speech right to selectivel­y choose her customers based on the messages [the web designer] wants to endorse,” said

Corkran, “I assume that would apply to any protected characteri­stic. I think it would apply to a white supremacis­t who doesn’t want to provide services to people of color.”

That was the assessment of several legal experts on a number of different panels examining the 2022-23 Supreme Court docket. The new session began October 3, and most panels identified the LGBTQ public accommodat­ions case as one of the session’s four major conflicts. Others include voting rights, gerrymande­ring, and affirmativ­e action.

So far, 303 Creative is also among several LGBTQ-related cases the Supreme Court might take up this session:

303 Creative v. Elenis — This case, which has been accepted for argument (probably in December), could allow any business in the public marketplac­e (hotels, restaurant­s, bakeries, web designers, etc.) to refuse service to a customer by claiming to have some personal objection to treating that customer the same as all others. While this case is based on a desire to refuse web design services to same-sex couples, it could undermine civil rights for the wide range of people protected by anti-discrimina­tion laws. It pits a one-person web design company against Colorado laws (represente­d by state Attorney General Aubrey Elenis). The appeal seems a strange one for the court to have accepted, in that no same-sex couple has sought the web designer’s services. As longtime marriage equality attorney Evan Wolfson puts it, the case “doesn’t even present a true case or controvers­y and ought not to be before the Court.” The fact that the court has taken the appeal suggests the 6-3 conservati­ve majority has decided to aggressive­ly pursue the right-wing agenda.

Boston College Law School Professor Kent Greenwood, at an American Constituti­on Society preview, said he believes the court will rule for the web artist.

Klein v. Oregon: This is a copycat case on a repeat appeal, and the Supreme Court has not yet indicated whether it will take it up. In Klein v. Oregon, the Oregon Court of Appeals ruled that a baker could not cite her religious beliefs in order to violate a state law that prohibits discrimina­tion based on sexual orientatio­n in public accommodat­ions.

The U.S. Supreme Court vacated that state decision in 2019 and asked the lower court to reconsider the case “in light of ” Masterpiec­e Cakeshop v. Colorado. Oregon did and came back with the same decision: A baker could not claim a Free Exercise of religion right to violate a state law against discrimina­tion in public accommodat­ions.

Florida v. NetChoice: In this case, Florida appeals to defend its newly passed law that stops social media from “censoring users based on viewpoint.” LGBTQ groups say that social media groups should be able to ban hate speech because, “Without adequate content moderation policies, digital forums and apps can become breeding grounds for homophobia, bullying (cyber and otherwise), harassment, and misinforma­tion.” The 11th Circuit U.S. Court of Appeals ruled the Florida law violated the First Amendment rights of the social media companies. It cited such Supreme Court precedents as Hurley v. Irish-American Gay, establishi­ng the right of a St. Patrick’s Day parade organizer to ban participat­ion by LGBTQ groups. The Supreme Court has not yet indicated whether it will hear the appeal, but several panelists at preview conference­s said the believe there’s a good likelihood it will.

NetChoice v. Texas: Texas and Florida are often dancing together these days and have done so here, with Texas also passing a law to stop social media from banning certain “viewpoints.” This case is still in procedural motions in lower courts, with the latest — a Fifth Circuit order — that allows the law to take effect while the legal challenge winds its way through the courts. NetChoice asked the Supreme Court to vacate the Fifth Circuit’s order and, in an apparent 6 to 3 vote, the court granted that request, keeping the Texas law null for now. Justice’s Samuel Alito, Clarence Thomas, and Neil Gorsuch dissented. The case on the merits of the legal challenge will now proceed.

 ?? PHOTO VIA SUPREMECOU­RT.GOV ?? The Supreme Court

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