Before I go any further, let me be clear: the Supreme Court’s recent decisions on Affirmative Action and LGBTQ+ rights are wrong and harmful in my view. I disagree with them completely. Having said that I do want to explore the ramifications and consequences.
So in that effort to explore the aftermath of the recent Supreme Court decisions I went to my tried and true method. Honed from years of study in college and my time through the actuarial exams: ice cream and reading.
Hence I am sitting here polishing off my second pint of ice cream while I have about seven dozen web pages open. It’s a nice fudge brownie filled chocolate. Yes, you read that right: it’s my second pint. The first was the Ben and Jerry’s Americone Dream - love the waffle cone pieces in that.
For now, I decided to concentrate on the decision in CREATIVE LLC ET AL. v. ELENIS ET AL - one idiocy at a time. This is the case involving a web site designer “seeking an injunction to prevent the State from forcing her to create websites celebrating marriages that defy her belief that marriage should be reserved to unions between one man and one woman.”
The reading is interesting but I will admit not exactly a page turner.
I am not a lawyer, nor do I play one on TV, but two things stick out.
First, I looked at the June 15, 2020 decision in BOSTOCK v. CLAYTON COUNTY. This decision held firmly that sexual orientation and transgender status were protected classes under the 1964 Civil Rights Act on the basis of sex. The majority opinion, written by Justice Gorsuch, concludes:
“In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”
It is interesting then that in the recent June 30, 2023 decision on CREATIVE LLC ET AL. v. ELENIS ET AL they have ruled that: “The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees.” Thus allowing the business, in this case the aforementioned web designer, to not create a website for a same sex wedding as it violates her religious principles.
Fascinating.
It gets more interesting though. The decision was based on the First Amendment, as Gorsuch (yes that same justice from above) stated “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.” The decision revolved around the freedom of a creative person to be forced to comply with the wishes of a client.
So an artist, or creative person, is protected under the first amendment. Someone can create art and not be limited by the government. It is the same reason, I believe, that Maplethorpe a few decades ago was allowed to create and publish his art.
The decision seems to rest very explicitly on the fact that an artist should not be forced by statute to put aside their first amendment rights to freedom of speech. They can within the constraints of freedom of speech, say anything they want or not say anything they want. Artistic license as it were. And I agree with that to a point. There are limits on freedom of speech. You cannot say “hijack” on a plane, for example. You can be arrested for making violent threats. And from a civil sense, civil court is littered with defamation cases. So where those limits lie from both a criminal and civil perspective is an interesting question.
However, the difference in my mind is this is a business and not a singular artist. An artist puts out their product and if you don’t like it don’t buy it. A business solicits customers but then says, and specifically in this instance, no we do not serve this demographic.
First, that fundamentally sounds like a bad business model.
Second, this smacks a lot of having a “whites only” sign on the doors to restaurants.
Additionally the court has now created a real issue. As stated in the BOSTOCK v. CLAYTON COUNTY decision above, sexual orientation has been identified in legislation and the courts as a protected class under sex within Title VII of the 1964 Civil Rights Act. Yet the court has now said there is a ranking of protected classes and have implied strongly that religion is at the top. In this decision for example, it tops sex.
That is a very interesting outcome.
I wonder what our 51% of the population thinks about that, especially given the way many religions handle gender? So can companies now discriminate against women - legally pay them less for example - because their religious beliefs say that women should not work outside the home? Interesting precedent.
And what about race? Can a business now have separate bathrooms by race if the owner believes the races should not mix?
Or even other religions? Can you now deny services to someone because they are a religion you disagree with?
Folks may say: Of course not! You are taking this way too far!
But it’s not too far. That is exactly what happened to me.
As several long time readers know, I was told I would never be an actuary because of my religion. I was brought up Quaker. I was told very early in my career that I would never be an Actuary because I am a pacifist, in accordance with my religious beliefs. The theory being a pacifist is not aggressive enough to pass the tests, i.e. a pacifist is not a go-getter. Now let’s be clear on this: I am a white, Christian, cisgendered male. I just wasn’t the right kind of Christian in some eyes. Taking this decision on its face, that is potentially legal now.
(Note: I am an Actuary by the way, so yeah pacifists can pass actuarial exams. Your demographics don’t define your ability. Your opportunity, well that is different.)
So while this decision does undermine the legal protections for the LGBTQ+ community, it also undermines the legal protections for everyone. Regardless of your demographics. Someone else's religion can now dictate what services are available to you in the market place.
And this is all happening when the general population is increasingly accepting of gay rights. 71% of Americans are in favor of same sex marriage, for example. Forbes cited the Public Religion Research Institute study: “Americans broadly support laws forbidding LGBTQ discrimination in situations like jobs, public accommodations and housing, with PRRI’s 2022 polling finding that 80% of Americans support such laws." So the court's decision seems out of step with the general public on this as well.
I would love to say I have a conclusion on this. But I don’t. The interaction of on person’s personal beliefs and another person’s rights is complex and needs a greater scrutiny than I can give it.
But I believe the court has opened the door to allow discriminatory behavior to be legalized and thus moved us back a few decades. The decision is just plain wrong.
I also believe this is not over. There will be more litigation and legislation on this. This has not come to an end by any means.
As always I hope this helps. I look forward to continuing the conversation. Please let me know your thoughts in the comments.
All the best,
Dave Terné
