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.
  • Save to favorites
  • Print

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.”

Events

This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
College & Workforce Readiness Webinar
Smarter Tools, Stronger Outcomes: Empowering CTE Educators With Future-Ready Solutions
Open doors to meaningful, hands-on careers with research-backed insights, ideas, and examples of successful CTE programs.
Content provided by Pearson
Recruitment & Retention Webinar EdRecruiter 2026 Survey Results: How School Districts are Finding and Keeping Talent
Discover the latest K-12 hiring trends from EdWeek’s nationwide survey of job seekers and district HR professionals.
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Professional Development Webinar
Recalibrating PLCs for Student Growth in the New Year
Get advice from K-12 leaders on resetting your PLCs for spring by utilizing winter assessment data and aligning PLC work with MTSS cycles.
Content provided by Otus

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Law & Courts Supreme Court Signals Support for State Bans on Trans Girls in Sports
The U.S. Supreme Court weighed Idaho and West Virginia laws that bar transgender girls from sports.
7 min read
Becky Pepper-Jackson holds hands with her mother Heather Jackson outside the Supreme Court after arguments over state laws barring transgender girls and women from playing on school athletic teams on Jan. 13, 2026, in Washington.
Becky Pepper-Jackson holds hands with her mother, Heather Jackson, outside the U.S. Supreme Court after arguments over state laws barring transgender girls and women from playing on female athletic teams on Jan. 13, 2026, in Washington.
Julia Demaree Nikhinson/AP
Law & Courts After 60 Years, a Louisiana District Fights to Exit Federal Desegregation Order
St. Mary Parish is on the frontlines of a legal battle to end ongoing school desegregation cases dating back to the civil rights era.
Patrick Wall, The Advocate, Baton Rouge, La.
6 min read
School bus outside Patterson High School in St. Mary Parish, in Louisiana.
School bus outside Patterson High School in St. Mary Parish, in Louisiana.
Brad Kemp/The Advocate
Law & Courts School Sports Case Reaches the Supreme Court at a Fraught Time for Trans Rights
The justices will consider state laws that bar transgender girls from participating in female sports.
8 min read
Fifteen year-old Becky Pepper-Jackson tosses a discus at home in West Virginia.
Fifteen-year-old Becky Pepper-Jackson tosses a discus at home in West Virginia. Her challenge to the state’s ban on transgender girls in school sports is now before the U.S. Supreme Court.
Scout Tufankjian/ACLU
Law & Courts Judge Bars Trump Admin. From Purging DEI Terms From Head Start Funding Requests
The federal judge also prohibited further layoffs of staff from the federal Office of Head Start.
2 min read
Students ride tricycles during aftercare at a Head Start program run by Easterseals, an organization that gets about a third of its funding from the federal government, Jan. 29, 2025, in Miami.
Students ride tricycles during aftercare at a Head Start program run by Easterseals, an organization that gets about a third of its funding from the federal government, Jan. 29, 2025, in Miami.
Rebecca Blackwell/AP