Written by: Kayla Sleeper
Edited by: Sean Tonra
“The nature of injustice is that we may not always see it in our own times . . . When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”
- Justice Anthony Kennedy
As of Tuesday, February 22nd, the Supreme Court has granted cert to hear a case regarding Colorado website designer Lorie Smith1 and her petition of the Colorado Anti-discrimination Act (CADA), an act includes provisions to ban the refusal of a commercial service on the basis of sexual orientation. Through her company, 303 Creative LLC, Smith plans to begin offering wedding website designs; however, she would like to include a statement on her company website stating that her services will not be offered to causes inconsistent with her religious beliefs, which will include “messages that condone violence or promote sexual immorality, abortion, or same-sex marriage.” She says that she would “respectfully refer such requests to other website designers” and still design websites for people who are LGBT, so long as when not related to marriage or views disagreeable to her.
Smith has been challenging Colorado’s Anti-Discrimination Act since 2016 in a federal district court since a same-sex couple requested a website design of hers and Colorado threatened persecution under the Act. Her defense for her refusal of service lies in her First Amendment rights to express her religious views about marriage. She says that creating these websites for same-sex couples would be a promotion of the marriage and ideas surrounding it and being forced to design these websites for same-sex couples under Colorado law would require her to violate her own personal beliefs and promote messages she does wish to and does not agree with.
This case acts as a follow up to Masterpiece Cakeshop v. Colorado Civil Rights Commission, decided in 2018, that affirmed the commercial right to refuse a creative, expressive service, such as designing and baking a wedding cake, upon grounds of religious expression provided under the Free Exercise Clause of the First Amendment. Thus, the next qualifier in identifying LGBT discrimination from free expression of religious views is if businesses can preemptively refuse service by declaring it via written speech, such as on a company website.
Within the past 50 years of cases regarding LGBT rights, discrimination is often weighed against freedom of religion; however, LGBT discrimination is also often rooted in biases and assumptions about morality, that for many, stem from their religious views. If a religious view contains the idea that one group is morally wrong, how are legal arguments going to extricate their discrimination from their religion?
Over the course of LGBT case history, it seems the only true indicator of change is public opinion. Yet it can take a long time for such a majority of the American people to be amassed before change occurs, as seen with the federal legalization of gay marriage in Obergefell v. Hodges, a case not even yet a decade old. While this was a win for LGBT rights, there have been many cases in recent American history that show a blatant disregard for the humanity of members of the LGBT community, cases that many might not have even heard of.
In Bowers v. Hardwick in 1986, earlier in the AIDS epidemic, Michael Hardwick was caught by police—in his own home—engaging in oral sex with another man. Charged with sodomy under Georgia law, Hardwick filed suit, arguing the unconstitutionality of the law, but was struck down by the Supreme Court. The ruling affirmed that states could in fact make laws policing homosexual sex, based on their own definitions of morality, as no constitutional right to it exists and thus, the 14th Amendment Due Process Clause does not apply here. A case to overrule Bowers v. Hardwick and legally recognize homosexuals’ rights to engage in sexual conduct would not come about until Lawrence v. Texas in 2003—surprising, given the many social movements in prior decades.
Additionally, it was just 1996 when Clinton passed the Defense of Marriage Act, an act that defined marriage as a “legal union between one man and one woman.” Yet this law was left to stand until 2013, when United States v. Windsor allowed for the federal recognition of same-sex couples married by state law. Windsor and other same-sex couples could now file for a tax exemptions for surviving spouses and other federal benefit programs for married couples.
Though milestones for LGBT rights, the recent nature of these cases demonstrate just how far we have left to go in terms of eliminating the discrimination of homosexual relationships. For a long time throughout American history, the foundational argument behind banning same-sex marriage has been its implications of religious violation. Now that gay marriage is legalized, we have entered an era where the new question is if religion is still justifiable reason for treating members of the LGBT community and same-sex marriages differently in everyday interpersonal interactions. The outcome of this new case may make it an important landmark in the history of the legal limits on—or the allowance of—discrimination of the LGBT community, which may have implications for other minority groups as well.
Comments