Updated June 30, 2023 at 7:07 PM ET
In a major decision affecting LGBTQ rights, the U.S. Supreme Court on Friday carved out a significant exception to public accommodations laws--laws that in most states bar discrimination based on sexual orientation.
By a 6-to-3 vote, the court sided with Lorie Smith, a Colorado web designer who is opposed to same sex marriage. She challenged the state's public accommodations law, claiming that by requiring her to serve everyone equally, the state was unconstitutionally enlisting her in creating a message she opposes.
On Friday, the Supreme Court agreed with her. Writing for the conservative majority, Justice Neil Gorsuch drew a distinction between discrimination based on a person's status--her gender, race, and other classifications--and discrimination based on her message.
"If there is any fixed star in our constitutional constellation," he said, "it is that the government may not interfere with an 'uninhibited marketplace of ideas.'" When a state law collides with the Constitution, he added, the Constitution must prevail.
The decision was limited because much of what might have been contested about the facts of the case was stipulated--namely that Smith intends to work with couples to produce a customized story for their websites, using her words and original artwork. Given those facts, Gorsuch said, Smith qualifies for constitutional protection.
He acknowledged that Friday's decision may result in "misguided, even hurtful" messages. But, he said, "the Nation's answer is tolerance, not coercion. The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands."
Court's liberals dissent
In a blistering dissent, Justice Sonia Sotomayor said that Lorie Smith's objection amounts to discrimination against the status of same-sex couples, discrimination because of who they are. Speaking for the court's three liberal justices, she said, "Time and again businesses and other commercial entities have claimed a constitutional right to discriminate and time and again this court has courageously stood up to those claims. Until today. Today, this court shrinks.
"The lesson of the history of public accommodations laws is ... that in a free and democratic society, there can be no social castes. ... For the 'promise of freedom' is an empty one if the Government is 'powerless to assure that a dollar in the hands of [one person] will purchase the same thing as a dollar in the hands of a[nother].'"
Just what today's decision means for the future is unclear.
A limited decision
Jenny Pizer, chief legal officer for Lambda Legal, called the decision limited.
"This decision says that the laws apply effectively to everyone but doesn't apply to this type of business, and I think there's an enormous question moving forward," she said. "How is this going to be applied to the range of goods and services." that involve "some customizing, and arguably some artistry, depending on the eye of the beholder."
So, what about a cemetery that refuses to engrave a headstone with the words "beloved partner," or a web designer asked to simply announce the time and place for a same-sex wedding, or a tailor who refuses to make a suit for a same sex groom? Or what about the dressmaker who refused to make a gown for Melania Trump to wear at her husband's inauguration in 2017?
Michael McConnell, director of the Stanford Center for Constitutional Law, wrote about that question in academic book chapter, and the Washington post wrote about it.
"Virtually everyone interviewed for a Washington Post story thought it was extremely important that this dress designer was able to refuse to create a gown for the Trump inauguration," McConnell said in an interview with NPR. "And I don't think a tailor is different from a dressmaker," he added.
"Justice Gorsuch in his majority opinion characterizes these as a sea of hypotheticals," observes Brigham Young University law professor Brett Scharffs. "What he had to say is that these cases are not this case."
University of Virginia law professor Douglas Laycock says there likely will be many follow-up cases, probing the outer boundaries of Friday's court decision. But, he says, "the core of this is you can't be compelled to use your creative talents in service of speech that you fundamentally disagree with. That's a pretty clear category."
"My prediction is that we will not see a lot of these cases" says Yale law professor William Eskridge, who has written extensively about gay rights. "Most religious people, including fundamentalist people, do not want to discriminate against LBGTQ persons, particularly in their commercial businesses," he says. And most LGBTQ don't want to sue.
Lambda Legal's Jenny Pizer is not so sanguine.
"The danger here is the message, and the understanding, that this court majority consistently favors those who seek to discriminate," she said. "And that sends a particularly alarming message to members of communities who are under sustained attack.
"This is the world that many of us are living in" she adds. "The civil rights protections are essential for our ability to participate in society."
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