LGBTQ Americans are having a very good year.
In January, gay U.S. Secretary of Transportation Pete Buttigieg spoke up for himself, his husband and all of us. He rebuked a Fox 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 lesbian Tammy Baldwin of Wisconsin (also a Democrat) in the Senate. In January, the 118th Congress convened with 11 members of the House of Representatives being lesbian, gay or bisexual, 10 being Democratic. No one in Congress identifies as queer or transgender — yet.
Since last August, five openly LGBT 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 over 20 LGBT federal judges.
Democratic president Joe Biden in December 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 The U.S. has not rescinded its hate crimes law nor the “Don’t Ask, Don’t Tell” Repeal Act, which made space in the U.S. military for LGBTQ people.
Some transgender Americans have new federal rights protection as a result of the U.S. Supreme Court denying certiorari after the U.S. Fourth Circuit Court of Appeals ruled that the Americans with Disabilities Act protects people with gender dysphoria. Gender dysphoria sometimes requires gender transitioning.
In January, 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 election in 2022), all in the Democratic Party.
Michigan in March joined the 23 other states with anti-discrimination statutes covering either sexual orientation or sexual orientation and gender identity: California, 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.
A very, very good year, indeed!
But what about the U.S. Supreme Court 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.
Here is the singular holding of that case: “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.”
So a state with an LGBTQ-inclusive anti-discrimination law cannot coerce any person to incorporate that policy’s rationale in any creative or expressive work.
The issue of religious freedom does not appear at all in the Court’s reasoning.
The horseshit about this not being a real case? Forget about it.
303 Creative’s owner had sought an injunction against the State of Colorado, and the U.S. Supreme Court returned the case to a court that had wrongly — in violation of First Amendment Free Speech protections — denied said injunction.
The Court had already made very similar rulings in 1995, in 2000 and in 2018 familiar to our community’s elders and legal professionals and aficionados: Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995), Boy Scouts of America and Monmouth Council v. Dale (2000) and Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018).
In a decision for a 6-3 conservative majority, Justice Neil Gorsuch (a Trump appointee) carved out a narrow exemption to state anti-discrimination laws. 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 St. John’s Episcopal Church in Boulder (Washington Post, 01/31/2017 and Washington Post, 02/01/2017). Check out that congregation’s inclusive message at www.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, “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.’”
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.”
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.”
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.”
303 Creative v. Elenis lays little new ground. In 1995, as our LGBTQ community’s elders and legal professionals and aficionados may recall, the Court granted an exception to the Massachusetts public accommodations statute. Parade organizers had chosen to exclude an LGBTQ group. In 2000, SCOTUS recognized a comparable exemption to New Jersey’s anti-discrimination law when the Boy Scouts refused to do the right thing after learning an assistant scoutmaster was gay. In 2018, the High Court found that the U.S. Constitutions protections for Free Speech called for an exemption to Colorado’s public accommodations laws covering businesses.
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.”
Both the parade organizers and the Boy Scouts have joined the 21st Century with our culture’s support for equality. Gallup reported (6/01/2022) that same-sex marriage had inched up to a new high of 71%.
Careful reading will find in 303 Creative respect for marriage equality.
303 Creative v. Elenis — a ruling that does not strike down all LGBTQ-inclusive anti-discrimination laws and that actually strengthens such laws — made for a perfect contribution for a wonderful year for LGBTQ Americans.
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.
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.