Existing in this country has shown me how culturally adept we are at disguising discrimination as a communal good. I have seen it in recent Supreme Court decisions such as Dobbs v. Jackson Women’s Health Organization and Students for Fair Admissions v. President and Fellows of Harvard College, and now in 303 Creative LLC v. Elenis.
303 Creative LLC v. Elenis should have never made it to the Supreme Court. And yet, its decision will have lasting impacts on not just queer people but anyone who is so much as assumed to be from a marginalized group.
This case originates in 2016, when Lorie Smith began a pre-enforcement challenge to the state courts against the Colorado Anti-Discrimination Act. Smith filed her claim because she runs an LLC called 303 Creative and doesn’t want to create wedding websites for queer couples despite never having created any wedding websites.
While she has planned to launch this service, she cannot openly provide only to heterosexual couples without violating this anti-discrimination act.
In her initial complaint to the state, the Alliance Defending Freedom lawyers who represent her wrote she could not provide wedding websites to same-sex couples “because of her religious beliefs and her desire to affect the current cultural narrative regarding marriage.”
Smith claimed a queer couple, Stewart and Mike, did consult her. But in reality, there was no such couple. The supposed Stewart is a straight, married man, and Mike doesn’t exist.
This case eventually made it to the Supreme Court this year, with Smith framing her argument on the basis of her First Amendment rights. She said it would violate her “sincerely held religious beliefs” to create a wedding website for a same-sex wedding.
She won this case with the court ruling Smith had a First Amendment right to “present their message undiluted by views they did not share.”
Smith brought an imagined incident to the Supreme Court and was successful. Mind you, this seems to violate section two, clause 1 of Article III of the constitution, which outlines that court cases cannot be hypotheticals.
Justice Neil Gorsuch in his majority opinion writes that states may “protect gay persons, just as [they] can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.”
By nature of the ruling, it seems to create a legal wild west; it is up to the states to decide how to handle protections and their enforcement. This opens the doors for any number of potential forms of discrimination that can be rooted very generally.
Justice Sonia Sotomayor notes this in her dissenting opinion, writing that this decision would “nullify public accommodations laws. It would mean that a large retail store could sell ‘passport photos for white people.’”
By nature of how marginalized identities are perceived, this ruling may primarily target those who are not immediately assumed to be of a marginalized community.
Straight men who are going to lunch with other straight men may face a waiter that refuses to serve them under the assumption that they are a couple for any number of reasons, such as wearing clothing that is not seen as masculine, standing too close to each other or having voices that “sound gay.”
This also targets those who express themselves in gender-nonconforming ways. Those who aren’t easily identified as man or woman, regardless of how they identify themselves, may be refused service for not dressing according to God’s image.
We may also see other religion-based forms of discrimination. For example, Joseph Smith, founder of The Church of Jesus Christ of Latter-day Saints, believed Black people had darker skin because of the mark of Cain, a biblical figure who murdered his own brother. A member of this church, or any other person who believes this interpretation of the Bible, could have grounds to deny Black patrons service.
What’s most infuriating about all of this is that Gorsuch concludes his opinion by writing, “all of us will encounter ideas we consider ‘unattractive,’ … but tolerance, not coercion, is our Nation’s answer.”
I take umbrage with the idea that tolerance is the solution to the current discourse around marginalized communities.
Tolerance is the act of putting up with a situation despite not enjoying it or agreeing with its existence. One tolerates a stomach ache until the antacid kicks in just as one tolerates a crying baby until they can leave its vicinity.
Tolerance is to choose indifference for a moment and resume disdain after that moment has passed. One chooses tolerance when they cannot immediately remove a perceived problem. Discrimination on any grounds should not be tolerated; it should be condemned.
The decision on Smith’s imagined case means any one who belongs to a minority community could face discrimination — maybe even on NC State’s own campus. It makes it clear that marginalized people are less important than free speech.
