A GUIDE TO THE UPCOMING LGBTQ-RELATED SUPREME COURT ARGUMENT
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The ordinary rights of LGBTQ people are on the line again at the U.S. Supreme Court — this time on Monday, December 5, with a case seeking to allow any business to deny service to a customer by claiming a personal objection to treating that customer the same as others. The footnotes to this oral argument (see below) are as interesting as the argument itself. But, first, here’s a guide to taking in Monday’s historic event:
When: Monday, December 5, 10am. Seventy minutes have been allotted.
The case: 303 Creative v. Aubrey Elenis, the Colorado attorney general. This case was initiated by the Alliance Defending Freedom, a legal group which has focused largely on anti-LGBTQ projects. In this case, ADF sought to restage an earlier case that fell short — Masterpiece Cakeshop v. Colorado — where the group won only a procedural victory. In this case, ADF has asked a web designer to press a preemptive case against the state public accommodations law protecting LGBTQ people, saying that if she did offer wedding page services, she would not want to offer them to same-sex couples because of her religious beliefs.
The appellant: Graphic artist Lorie Smith was recruited by the Alliance Defending Freedom to file this lawsuit even though no same-sex couple had yet come to her seeking a design for their wedding plans. In fact, Smith had not yet even offered to provide wedding site designs for any potential customers. Although Smith said she has had LGBTQ clients, she said she could not do wedding site designs for same-sex couples because of her belief that the Bible prohibits same-sex marriage.
The respondent: The state of Colorado and its Attorney General Aubrey Elenis are defending the state law prohibiting, in public accommodations, discrimination based on “disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.”
Previous rulings: Both a U.S. District Court and the 10th Circuit U.S. Court of Appeals upheld the Colorado Anti-Discrimination Act (CADA) in this challenge. The 10th Circuit ruled CADA to be a “neutral law of general applicability” and said it is neither unconstitutionally vague nor overbroad and did not violate the free speech or free exercise rights of the plaintiff.
The question at the Supreme Court: The Supreme Court has dramatically reframed the question posed by attorneys for the web designer. ADF attorneys asked: “Whether applying a public accommodation law to compel an artist to speak or stay silent, contrary to the artist’s sincerely held religious beliefs, violates the Free Speech or Free Exercise Clauses of the First Amendment.” The Supreme Court, in accepting the ADF appeal, posed much larger question, one that does not require a religious objection but any objection: “Whether applying a public accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.”
How to take in the argument: Interested parties can attempt to go in person, read a transcript of the argument, or listen to an audio recording. Written transcripts and audio recordings of the argument are available on the court’s website either 90 minutes after the argument or soon thereafter.
How bad could it be: A worst case scenario decision in 303 Creative 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.
Outcome LGBTQ people would prefer: A much better outcome for LGBTQ people would be for the court to rule that laws prohibiting discrimination in public accommodations protect people with religious beliefs, as well as others, from discrimination and only incidentally implicate free speech concerns. And, as a brief from the NAACP stated: “Public accommodations laws are vital to ensuring free and full access to society and its benefits on an equal basis to all. When merchants exclude individuals from commercial transactions based on their identity — as Petitioner wishes to do here — the excluded individuals suffer a stigma that the law is meant to guard against.”
Footnote 1-Hiding behind a beard: The oral argument comes just two weeks after the New York Times reported that Justice Samuel Alito has for years been carrying on cozy relationships with religious conservative groups. The Times obtained a June 7 letter from a former anti-abortion activist to Chief Justice John Roberts in which the activist claims that Alito leaked the outcome of a 2014 religious exemptions case to a personal gathering of anti-abortion donors at his home. The leak enabled anti-abortion groups to move swiftly to capitalize on the decision in Burwell v. Hobby Lobby. Alito wrote the 5-to-4 majority decision and denied leaking the opinion which held that a federal law may not require a closely held commercial employer to provide health insurance coverage for contraception if that employer claims that to do so violates his or her personal religious beliefs.
Footnote 2-Up front and center: Ten transgender lawyers are scheduled to be sworn into the U.S. Supreme Court Bar just days before the historic 303 Creative argument. The plan to swear in transgender attorneys as a group was initiated two years ago but delayed because of the pandemic. The application asks applicants to indicate if they have ever “changed your name or been known by any name or surname other than those appearing on this application.” The ten transgender attorneys include Rook Ringer from Florida, Jesse McGrath from California, Ames Simmons from Georgia, and Zsea Ofure Bowmani from Illinois.
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Police Arrest Chase Staub for Threatening LGBTQ Establishments
Atlanta police have arrested a man who posted threatening remarks toward The Heretic, according to Fox 5.
Chase Staub (left) was arrested on Thanksgiving Day after employees told officers that they saw someone making threatening posts toward the bar on social media. Detectives went to 1510 Piedmont Road, where LGBTQ establishments like Oscar’s, Barking Leather, Brushstrokes, and Felix’s are located, and spoke to others who said someone, identified as Staub, entered Felix’s and was asked to leave.
In a video posted to his Instagram story, Staub says, “How to get away with murder? I guess you’ll find out,” while holding what investigators have identified as a pepper spray gun.
X Midtown closed on Thanksgiving in light of the threat.
“Due to the current rheat of safety we are facing in Midtown tonight, we have made the decision to close for the evening,” they wrote on Facebook. “We ask that you all remain vigilant as you plan to spend time with your family and friends during the holiday weekend. We also want to thank APD for their presence and support tonight during a time when we have experienced loss within our community.”
Police arrested Staub at his home. He was charged with terroristic threats and transported to the Fulton County Jail. Investigators have not determined why Staub was threatening the LGBTQ community.
The threats came only days after the mass shooting at LGBTQ Club Q in Colorado
Springs, Colorado, where five people were killed and dozens injured.
Biden Calls Club Q Owners as Community Grapples with Aftermath
As the LGBTQ community continues to mourn the loss of the five people killed in the mass shooting in Colorado, focus is now shifting to a reflection of anti-LGBTQ sentiment that has evolved from prejudice to incitement according to Nic Grzecka, a coowner of Club Q.
Grzecka said he believes the targeting of a drag queen event is connected to the art form being cast in a false light in recent months by right-wing activists and politicians who complain about the “sexualization” or “grooming” of children.
Even though general acceptance of the LGBTQ community has grown, this new dynamic has fostered a dangerous climate, he said.
“It’s different to walk down the street holding my boyfriend’s hand and getting spit at [as opposed to] a politician relating a drag queen to a groomer of their children,” Grzecka said. “I would rather be spit on in the street than the hate get as bad as where we are today.”
President Joe Biden, while spending the Thanksgiving holiday with the first lady and family members in Nantucket,
Massachusetts, called Grzecka and Club Q co-owner Matthew Haynes.
The president and the first lady offered condolences and reiterated their support for the community as well as their commitment to fighting back against hate and gun violence. They also thanked the two men for the “incredible contributions they have made and will continue to make to Colorado Springs.”
The president told reporters enroute to Nantucket — reflecting on the shooting and another at a Wal-Mart store when a night manager opened fire in a breakroom in Chesapeake, Virginia, killing six and wounding at least half a dozen more — that he has plans to support a bill banning assault rifles during the lame-duck session before the next Congress is seated in January.
Colorado Springs is also home to Focus on the Family, one of the largest anti-LGBTQ groups in the United States. The Christian ministry group has opposed same-sex marriage, LGBTQ service in any branch of the U.S. armed forces and continues to advocate for the discredited practice of conversion therapy.
Someone vandalized the sign at the main entrance to the group’s headquarters complex.
In an Instagram post, Grzecka displayed a picture of the vandalized sign with graffiti spray painted in black reading; “Their blood is on your hands five lives taken.”