Jurisprudence

The Alarming Legal Strategy Behind a SCOTUS Case That Could Undo Decades of Civil Rights Protections

Person waving a rainbow flag on a cloudy day
A gay pride parade in San Francisco in 2015. Reuters/Elijah Nouvelage

The Supreme Court recently agreed to review a case that threatens to undo decades of civil rights protections by allowing business owners to return to a darker time in which they were allowed to fill the marketplace with discriminatory signs. In 303 Creative LLC v. Elenis, a web designer named Lorie Smith seeks the court’s permission to publicly announce that due to her religious convictions, her company “will not be able to create websites for same-sex marriages or any other marriage that is not between one man and one woman.”

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The request conflicts with the law in most U.S. jurisdictions, including Colorado, where Smith resides. The law in those jurisdictions requires businesses open to the public to serve everyone and avoid discriminating on the basis of sex—and that includes, explicitly or implicitly, discrimination based on sexual orientation or gender identity. Unprecedentedly, the court agreed to discuss what it had set aside until now: the argument that some businesses should be free to deny certain clients due to their owners’ freedom of speech that allegedly stretches to their commercial activities.

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Alarmingly, the court seems prepared to enable the intentional harm such discriminatory “speech” is designed to cause.

How did we get to this low point? The answer starts with understanding that Smith’s legal battle is highly hypothetical: Her business does not offer wedding-related services to anyone, and thus she was never asked to offer, nor did she refuse to offer, marriage-related services to LGBTQ couples. So why would she relentlessly litigate the matter for years? As others noted, part of the explanation is that her case is a test case, intentionally brought to the court with the active help of a leading conservative advocacy group, the Alliance Defending Freedom, or ADF. However, there is much more to the story.

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303 Creative is not stand-alone litigation. Rather, it is part of a nationwide experimental legal strategy spearheaded by the ADF to advance a broader anti-LGBTQ project. The strategy is aggressive and preemptive, as I have documented in my research on the group’s methods leading up to Smith’s case. The ADF seeks to secure an advance judicial permission to engage in what is currently forbidden after the fact: refusals to transact with LGBTQ parties. In a wave of preemptive proceedings, the organization represents businesses owned by devout Christians who declare an intention to refuse to deal with LGBTQ couples in the context of marriage. These businesses sue before they deny anyone service and thus, by definition, without being challenged by any legal authority.

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In other words, what these businesses have in common is that—contrary to the phrasing question the court certified for review—they were not compelled to “speak or stay silent.”

This preemptive strategy has already yielded cases in eight states: Arizona, Colorado, Kentucky, Minnesota, New York, Ohio, Virginia, and Wisconsin. The choice to litigate in various jurisdictions is significant. With appeals to different circuit courts, it promises to eventually generate a dispute between them—a recipe for getting the issue to the Supreme Court. The preemptive proceedings are also similarly designed, featuring a two-prong offense pattern. The first prong targets states or localities. Courts are asked to prevent these government actors from enforcing nondiscrimination laws when equality conflicts with religious beliefs. The second prong directly attacks the LGBTQ community.

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Chillingly, courts are urged to allow businesses to announce their excluding policy by putting out signs clarifying that only heterosexual and cisgender couples are welcome. As a result, each time the ADF won a preemptive case, the business it represented was empowered to post an offensive notice such as the one Smith had proposed to use. In Ohio, for example, the litigation resulted in a website declaration, visible to anyone searching for wedding services, that the business will not serve same-sex couples and will also reject “a man or woman who identifies contrary to his or her biological sex.” Note how the statement doubles down on insult by using a demeaning phrase in lieu of “gender identity.”

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While the ADF had represented a host of businesses in litigation of actual denials of same-sex couples, including bakers and florists, it seems more selective in its preemptive actions. The ADF’s preemptive clients offer expressive services to focus on speech: Four out of eight are photography businesses, while the additional four profit from creative services, such as Smith’s website design. Nonetheless, while no one should doubt the sincerity of the business owners’ religious beliefs, one can certainly question the authenticity of their business plans. Smith is not the first to initiate litigation concerning something she does not even do. In Minnesota, the ADF represented a video production company that likewise stated a future intention to enter the wedding industry. However, when the company won its appeal and the 8th Circuit ordered the lower court to resume hearing, the company lost its ostensible interest in weddings and moved to dismiss the case. In response, the trial judge noted it “has likely been a smoke and mirrors case … from the beginning.”

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Critically, having courts decide cases without actual conflicts not only raises procedural questions, but also can deeply and dangerously influence the substance of the debate. Indeed, this has already started to happen. Despite decades of applying nondiscrimination laws to all for-profit businesses open to the public, the preemptive strategy has led some lower courts to side with businesses while overlooking the harm they explicitly plan to cause. This shift is tightly linked to the litigation’s format because there are no actual human victims during the hearing. Therefore, while the business owners’ beliefs, aspirations, and talents are amplified, no one is there to authentically depict the humanity and pain of those about to be rejected. Unsurprisingly, such an imbalanced structure gives an unfair advantage to the idea of expanding free speech into the market even when it means denial of access for all.

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For context, this was precisely the step the Supreme Court declined to take in Masterpiece Cakeshop v. Colorado, when a bakery refused to sell a wedding cake to real humans, Charlie Craig and David Mullins, in the presence of Craig’s mother. While the baker won due to concerns regarding the actual state decision against him, the court declined to discuss his freedom of speech. Instead, it reaffirmed a 1960s precedent, Newman v. Piggie Park, to clarify that business owners cannot deny services due to religious objections. With Craig and Mullins’ compelling story, the court emphasized how undoing this precedent would cause “a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.”

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In contrast, when the court reviews Smith’s grievances this coming fall, the price of a religious boycott will be concealed. No one will embody the ensuing harm and remind the justices of the suffering inflicted by allowing businesses to discriminate. Nor would anyone be able to highlight, as Craig’s mother did, that “it was never about the cake. It was about my son being treated like a lesser person.”

The desire to speak freely, including while doing business, isn’t truly the main issue at stake. Rather, insisting on marking a potential LGBTQ client “a lesser person” is an act of humiliation much more than it is an exercise of speech. As the dissent in a recent Arizona preemptive case noted, “if businesses can selectively treat some customers as second-class citizens,” then “humiliation and stigma” follow. Moreover, outside of the legal arena, humiliation studies empirically show that acts of intentional and public rejection induce a particularly intense and painful emotion that further spreads through a process known as “collective humiliation” to other members and allies of the targeted group. Worse, those studies also teach us that humiliation leads to mental health complications, depression, and even suicide.

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So, before anyone gives a blank check to businesses to intentionally cause such colossal harm, we must pause and recognize the process’s deliberately abstract and carefully orchestrated nature. The preemptive strategy has advanced a one-sided narrative of coercion, censorship, victimhood, and fear of the allegedly punitive state. Rather than trusting this narrative, citizens and judges alike should demand a fuller account of the issue at hand. For example, everyone needs to remember that religious business owners could always freely express their beliefs in the public square, where ideological debates belong. They can publish, protest, campaign, and vote against realities they oppose. They do not have a right to insist on “speaking” through their marketing acts and commercial decisions. Such a marketized version of speech might add a little to the already vast freedom available, but would gravely humiliate the entire LGBTQ community and anyone else later added to the conservative block-list.

Our Constitution not only promises freedom of speech; it also guarantees equal access to the market, without fear of rejections or a painful exposure to humiliating signs. Therefore, even a court controlled by a conservative supermajority must balance citizens’ needs and interests. It also should recognize how the pending petition to expand speech protections threatens to revive a segregated marketplace.

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