A very good year for LGBTQ+ Americans and 303 Creative

The Supreme Court. (Photo: Scott Drake)

LGBTQ+ Americans are having a very good year.

In January, openly gay U.S. Secretary of Transportation Pete Buttigieg spoke up for himself, his husband and all of us. He rebuked a Faux News reporter for their double standard when they questioned Buttigieg about his husband accompanying Buttigieg on official travel, routine for presidential cabinet members.

Kyrsten Sinema of Arizona, elected as a Democrat and as this nation’s first out bisexual U.S. Senator, joined openly lesbian Tammy Baldwin of Wisconsin (also a Democrat) in the Senate. In January, the 118th Congress began with 11 members of the House of Representatives being lesbian, gay or bisexual, 10 being Democratic. None in Congress openly identifies as queer or transgender — yet.  

Since last August, five openly LGBTQ+ justices have begun service with U.S. district courts: Daniel Calabretta, Gina R. Mendez-Miro, Nina Morrison, Ana C. Reyes and Jamar K. Walker. Wikipedia lists more than 20 LGBTQ+ federal judges. 

In December, Democratic president Joe Biden signed into law the Respect for Marriage Act protecting marriage equality. The U.S. has not rescinded its hate crimes law nor the Don’t Ask, Don’t Tell Repeal Act, which made space in the U.S. military for LGBTQ+ people. 

In January, openly lesbian governors Maura Healey of Massachusetts and Tina Kotek of Oregon entered office. These history makers joined Oregon’s Kate Brown (2005-2013), New Jersey’s Jim McGreevey (2002-2004) and Colorado’s Jared Polis (in office since 2019 after a landslide reelection in 2022), all in the Democratic Party.

In March, Michigan became the 24th state with an anti-discrimination law covering sexual orientation and gender identity.

Meanwhile, federal judges have been striking down as unconstitutional some of the hundreds of spitefully anti-LGBTQ+ bills introduced by Repugnicans in gerrymandered Red States.

A very, very good year, indeed! 

But what about the U.S. Supreme Court ruling in 303 Creative v. Elenis, which completely eviscerated all state anti-discrimination laws and threw open the gates for anti-LGBTQ+ bigots to refuse to serve us in restaurants or to rent us hotel rooms? 

It did no such thing. 

The worst thing 303 Creative did? It failed to advance LGBTQ+ equality. 

303 Creative actually strengthens state anti-discrimination laws. 

But don’t take my word for it. Take about 45 minutes at https://www.supremecourt.gov/opinions/22pdf/21-476_c185.pdf. Until then, question what you think you know. (Skip the syllabus, the unofficial summary in small print.)  

Here is the singular holding of 303 Creative: “The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees.” 

More broadly, “[g]enerally, too, the government may not compel a person to speak its own preferred messages” (600 U.S. 8). 

So none of the 24 states with LGBTQ+-inclusive anti-discrimination laws can coerce any person to incorporate that policy’s rationale in any creative or expressive work. With Pennsylvania projected to join them within six years as it trends more Democratic, those 24 states include California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Utah, Vermont, Virginia, Washington and Wisconsin. 

The issue of religious freedom does not appear at all in the Court’s reasoning. The High Court didn’t particularly care why she didn’t want to create certain websites but only that she didn’t want to create them. That’s where Freedom of Speech is attached.

The horseshit about this not being a real case? Forget about it.

Injunctions can be basic and fairly routine legal matters. “To clarify her rights, Ms. Smith filed a lawsuit in federal district court. In that suit, she sought an injunction to prevent the State from forcing her to create wedding websites celebrating marriages that defy her beliefs…Ultimately, the district court ruled against Ms. Smith. So did the 10th Circuit. For its part, the 10th Circuit held that Ms. Smith had standing to sue” (303 Creative, 600 U.S. 2-3, 5). The U.S. Supreme Court did not overrule the 10th Circuit on that issue.

The U.S. Supreme Court relied on precedents it made in similar rulings in 1995, 2000 and 2018 familiar to our community’s elders and legal professionals and aficionados: Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. (505 U.S. 557 (1995)), Boy Scouts of America v. Dale (530 U.S. 640 (2000)) and Masterpiece Cakeshop, Ltd. V. Colorado Civil Rights Commission (584 U.S. ?1? (2018)). In all four cases (including 303 Creative v. Elenis (600 U.S. ?1? (2023)), because of the Supremacy Clause (U.S. Constitution, Article VI, Paragraph 2), the Court found that First Amendment protections of Free Speech could require narrow exemptions to state anti-discrimination laws.

Both Boston’s Irish parade organizers and the Boy Scouts of America have joined the 21st century with our culture’s support for equality. Consider the current membership policy of the Boy Scouts of America: “It is the philosophy of Scouting to welcome all eligible youth, regardless of race, ethnic background, gender or orientation, who are willing to accept Scouting’s values and meet any other requirements of membership.”  Gallup reported that same-sex marriage support had inched up to a new high of 71%.

Very importantly, the High Court in all four cases explicitly upholds public accommodations laws and — in Boy Scouts (530 U.S. 640, 653, 658 and 660), Masterpiece Cakeshop, Ltd. (584 U.S. 1, 9, 10) and 303 Creative (below) — LGBTQ+-inclusive anti-discrimination laws particularly. 

In a decision for a 6-3 conservative majority, Justice Neil Gorsuch (a Trump appointee) carved out a narrow exception to state anti-discrimination laws. SCOTUS had already done this in other cases. Otherwise — believe it or not — the Court actually strengthened such statutes. 

It matters that the Court’s majority asked neither Samuel Alito nor Clarence Thomas to write the majority opinion.  Gorsuch also wrote the 2020 opinion in Bostock v. Clayton County [Georgia] in which a 6-3 majority found in the Civil Rights Act of 1964 protection for LGBTQ+ people against discrimination in employment. 

When Gorsuch served on a federal appeals court in Colorado, he, his wife and their children attended an LGBTQ+-inclusive congregation, St. John’s Episcopal Church in Boulder. Check out that congregation’s inclusive message at stjohnsboulder.org/an-inclusive-place.

Gorsuch in 303 Creative, rather than striking down all 24 state anti-discrimination laws, actually strengthens them by upholding them repeatedly.

First, Gorsuch writes, “Importantly, States have also expanded their laws to prohibit more forms of discrimination. Today…approximately half of States have laws like Colorado’s that expressly prohibit discrimination on the basis of sexual orientation [without mentioning gender identity]. And, as we have recognized, this is entirely ‘unexceptional’” (600 U.S. 13).

That followed this: “[W]e do not question the vital role public accommodations laws play in realizing the civil rights of all Americans. This Court has recognized that governments in this country have a ‘compelling interest’ in eliminating discrimination in places of public accommodations” (600 U.S. 12). 

Second, “States may protect gay persons, just as [they] can protect other classes of individuals, in acquiring whatever products or services they choose on the same terms and conditions that are offered to other members of the public. And there are no doubt innumerable goods and services that no one could argue implicate the First Amendment” (600 U.S. 14). 

Finally, Gorsuch responds to a dissenting opinion: “Much of [the dissent] focuses on the evolution of public accommodations laws…and the strides gay Americans have made towards securing equal justice under the law…And, no doubt, there is much to applaud here” (600 U.S. 19).

Gorsuch for the Court in 303 Creative sustains from Boy Scouts of America v. Dale the Court’s observation from 2000 “that New Jersey’s public accommodations law had many lawful applications.”

Careful reading will find respect for marriage equality in 303 Creative (600 U.S. 12). 

303 Creative v. Elenis — a ruling that does not strike down all LGBTQ+-inclusive anti-discrimination laws and actually strengthens such laws, relying on precedents that uphold anti-discrimination laws with narrow exemptions — made for a perfect contribution to a wonderful year for LGBTQ+ Americans.

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J. Eric Peters, a Disabled American Veteran and an honorably discharged U.S. Army Legal Specialist, received a bachelor’s degree with high honors in pre-law sociology with substantial coursework in paralegal technology and criminology. While a sociology Ph.D. student at the University of Minnesota, Eric served as a teaching assistant for courses including Criminal Law and Criminal Procedure. Also, living in Columbus since 1993, Eric has worked as a civilian legal secretary and an Ohio state bureaucrat. Incidentally, Eric served as a staff writer at Outlook News in Columbus until it ceased publication in 2017. His Discharge Certificate (DD-214) dated 21 September 1987 has these two lines: “characterization of service: honorable” and “reason(s) for separation: engaged in homosexual act(s).”