Court’s LGBTQ+ Decision Narrowly Based On Freedom Of Speech

On the last day of Pride Month, the U.S. Supreme Court issued an opinion holding a Colorado website designer could not be forced by the state of Colorado to design a website supporting a same-sex marriage as contrary to her biblical view that marriage is between a man and a woman.

The three-person dissent written by Associate Justice Sonia Sotomayor decried the majority opinion as a huge step back for the LGBTQ+ community.

But if you take the majority opinion at its word (maybe a risky venture), the case was not about the rights of the LGBTQ+ community, rather it was about pure speech protected by the First Amendment to the U.S. Constitution.

The U.S. Supreme Court — front row, left to right: Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, Chief Justice John G. Roberts Jr., Associate Justice Samuel A. Alito Jr., and Associate Justice Elena Kagan. Back row, left to right: Associate Justice Amy Coney Barrett, Associate Justice Neil M. Gorsuch, Associate Justice Brett M. Kavanaugh and Associate Justice Ketanji Brown Jackson. (Fred Schilling, Collection of the Supreme Court of the United States)

The opinion was authored by Associate Justice Neil Gorsuch who wrote, just three years ago, a 6-3 majority opinion (Bostock) for the court that held members of the LGBTQ+ community were protected under the 1964 Civil Rights Act that bans discrimination in employment based on race, religion, national origin or sex.

Gorsuch went out of his way in stating his decision was misrepresented by the dissenting opinion, that his decision was only about freedom of speech, not about the sale of ordinary goods and services on equal terms as required by public accommodation laws or about the LGBTQ+ community.

Gorsuch’s opinion, by its own terms, would allow another website designer or “artist” to deny services based on the requested expression not only to a member of the LGBTQ+ community, but to a member of another protected class (race, religion, national origin or sex), under anti-discrimination laws.

There is no question that this case was put together by the web designer and her legal team to deny the LGBTQ+ community equal protection of the laws. There is also no question that several justices who signed the majority opinion would be only too happy to accommodate them (looking at you, Associate Justices Clarence Thomas and Samuel Alito).

As a former civil rights litigator (including the right of same-sex couples to marry), I do not applaud Associate Justice Gorsuch’s opinion, but I would argue we should hold him to his words.

This case should not be cited as precedent to deny members of the LGBTQ+ community equal protection of the laws, but only as a very narrow First Amendment freedom of speech case exception to our ant-discrimination laws.