This op-ed by Laura K. Chapin appeared on Colorado Newsline on July 3, 2023.
In the annals of terrible Supreme Court decisions, the 303 Creative case validating discrimination against LGBTQ Americans will be listed as one of the worst.
The six conservative justices on the Supreme Court were willing marks for a con job.
The entire 303 Creative v. Elenis case was fabricated and a political set up — a verdict in search of a case. It was not about free speech. It was never about free speech. It was about a Republican political operative in Colorado, backed up by a dark money funded hate group, the Orwellian “Alliance Defending Freedom,” using the courts to do what the right wing can’t do in Congress — take away civil rights from LGBTQ Americans.
One of the foundational principles of law is “standing” — that you were harmed and have a stake in the suit you are filing. For example, in Brown v. Board of Education, Oliver Brown wanted to send his daughter to a school closer to their home but couldn’t because Topeka schools were segregated. So he and other plaintiffs filed a class action lawsuit to change it.
There was no such thing here. Lorie Smith, the plaintiff, is a Republican vendor who designs websites for actual, not pretend, Colorado Republican clients, including insurrectionists like former state Rep. Ron Hanks and anti-abortion panickers like state Rep. Scott Bottoms. She claimed she was afraid that in the future Colorado’s non-discrimination/public accommodation law meant she would have to design a wedding website for a gay couple.
Mind you, that had not happened yet.
The hate group Alliance Defending Freedom, who served as legal counsel on Smith’s case, later claimed that she’d gotten an email from “Stewart” asking for a wedding website for him and “Mike.” When reporters finally followed up with Stewart, because his contact information was listed in the court papers, he had no idea what they were talking about. He was straight, married to a woman, and a web designer himself. The whole thing, the foundation of Smith’s case, was made up. She hadn’t been asked to do anything. She was just worried that in the future as an “artist” she wouldn’t be able to deny services to a gay couple.
There was no standing with which to bring the case.
But that didn’t matter to the Republican justices on the Supreme Court. They were looking for a reason to overturn the gains made by LGBTQ Americans in recent years, and a lawsuit made of political vapor that should have been laughed out of court was just fine with them.
As writer and attorney Elie Mystal put it in The Nation last December, “The long history of public accommodations laws says that business owners cannot do that. To put it plainly, a diner owner can absolutely tell me ‘I don’t like (expletive)’ when serving me lunch, but he still has to serve me lunch. He doesn’t have a free-speech objection to providing me a service that I am willing to pay for, no matter how deeply he hates me. He can be a jerk about it. He can name his business ‘Raisins in Potato Salad’; he can dedicate all of the sandwiches on his menu to Confederate generals and serve me on a plate emblazoned with a swastika. But he has to serve me.”
Two-thirds of Americans support equal rights for gay Americans, and our laws reflect that. Two-thirds of Americans support legal abortion, and yet the Court overturned Roe. In both cases, 303 Creative and Dobbs, the Supreme Court decided to legislate from the bench and invoke by legal fiat, overturning civil rights the vast majority of Americans support.
I’ll credit them with one thing, though: The wingnuts who want a Christian nationalist white male nation are patient. They waited 50 years to overturn Roe and nearly the same to restore segregation and overturn public accommodation laws in 303 Creative.
If we want to reverse it, we need to choose leaders who actually believe in civil rights, equal access for all, and the integrity of our legal system.
We are going to have to rebuild what the Roberts court has destroyed.