Law & Courts

In Supreme Court Decision Affecting LGBTQ+ Rights, Both Sides Cite Education Precedents

By Mark Walsh — June 30, 2023 4 min read
People react outside of the Supreme Court Friday, June 30, 2023, in Washington, after the Supreme Court's conservative majority ruled that a Christian graphic artist who wants to design wedding websites can refuse to work with same-sex couples. The court ruled 6-3 for designer Lorie Smith despite a Colorado law that bars discrimination based on sexual orientation, race, gender and other characteristics. Smith had argued that the law violates her free speech rights.
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In the U.S. Supreme Court’s decision on Friday that a state can’t require a website designer to create designs with messages she disagrees with on religious grounds, both the majority and dissent cited landmark education cases in their opinions.

In 303 Creative LLC v. Elonis, the court ruled 6-3 that Colorado could not use its public accommodations law, which includes protections for sexual orientation, to force wedding website designer Lorie Smith to create sites for same-sex couples, which she declines to do based on her Christian faith.

“In this case, Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance,” Justice Neil M. Gorsuch wrote for the majority. In past cases, other states “have similarly tested the First Amendment’s boundaries by seeking to compel speech they thought vital at the time. But, as this court has long held, the opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong.”

One case he cited was West Virginia State Board of Education v. Barnette, the 1943 decision in which the court invalidated a state law requiring schoolchildren to salute the flag and recite the Pledge of Allegiance. The court had overruled its own ruling that went the other way just three years earlier, and Gorsuch quoted, in part, Justice Robert H. Jackson’s line that “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

Gorsuch cited two more recent cases when the court sided with First Amendment free speech arguments over claims for greater protections for LGBTQ groups or individuals, in cases involving a gay group seeking to join a privately sponsored St. Patrick’s Day parade in Boston, and to require the Boy Scouts to accept a gay scout leader.

“As these cases illustrate, the First Amendment protects an individual’s right to speak his mind regardless of whether the government considers his speech sensible and well intentioned or deeply misguided and likely to cause anguish,” he said.

Gorsuch’s opinion was joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito Jr., Brett M. Kavanaugh, and Amy Coney Barrett.

Dissenters worry about a “backlash” against LGBTQ+ rights

Justice Sonia Sotomayor wrote a dissent, joined by Justices Elena Kagan and Ketanji Brown Jackson, that cast the decision as a setback for LGBTQ+ rights at a time when those rights are under renewed attack.

“Today is a sad day in American constitutional law and in the lives of LGBT people,” she said. “Around the country, there has been a backlash to the movement for liberty and equality for gender and sexual minorities. New forms of inclusion have been met with reactionary exclusion. This is heartbreaking.”

Sotomayor argued that the cases cited by Gorsuch were limited to schoolchildren and nonprofit groups, while Smith’s website design company was unquestionably a commercial enterprise that fell under the purview of Colorado’s public accommodations law.

She said the majority “studiously avoids” a 1976 Supreme Court decision, Runyon v. McCrary, in which the court rejected arguments by several private schools in Virginia that they had a First Amendment right of free speech or association to bar Black children from enrolling. The court held that such a policy violated the Civil Rights Act of 1866, which prohibits race discrimination in the making and enforcement of private contracts.

The court in Runyon said “the Constitution places no value on discrimination,” and it held that the government’s regulation of conduct did not “inhibit” the schools’ ability to teach its preferred “ideas or dogma.”

Sotomayor characterized the Runyon decision as holding that “requiring the schools to abide by an antidiscrimination law was not the same thing as compelling the schools to express teachings contrary to their sincerely held belief that racial segregation is desirable.”

She wondered whether Runyon might have come out differently if, under the majority’s logic, “the schools had argued that accepting Black children would have required them to create original speech, like lessons, report cards, or diplomas, that they deeply objected to?”

Gorsuch did not respond to Sotomayor’s discussion of Runyon. He said, “there is much to applaud here” with regard to “the strides gay Americans have made towards securing equal justice under law.” (He was the author of the court’s 2020 decision in Bostock v. Clayton County, joined by Sotomayor, that Title VII of the Civil Rights Act of 1964 covered sexual orientation and gender identity.)

“Of course, abiding [by] the Constitution’s commitment to the freedom of speech means all of us will encounter ideas we consider unattractive, misguided, or even hurtful,” Gorsuch said. “But tolerance, not coercion, is our nation’s answer. 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.”


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