Tag Archives: Discrimination

The Republicans on the Supreme Court Screw America Again

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It was only this week that I learned there are wedding websites. I don’t mean the kind that tell you how to have the perfect wedding. I mean websites devoted to a specific wedding, i.e., the one you and your prospective spouse plan to have. A site for brides explains:

A wedding website provides a hub for important information regarding a couple’s big day. It can house venue details, dress code specifics, and your registry wishes. Plus, it provides a space to keep guests easily updated and to collect wedding RSVPs. But with a number of options out there, which are the best wedding websites?

Okay, that makes sense. We use the internet for a whole lot of stuff these days.

But if you’re not a web designer, how do you get a site for your wedding, something like, say, (don’t click on it) http://www.Mary_and_John_Are_Having_a_Wedding.org? Fortunately, there are lots and lots of companies that make it easy to do just that. If you visit the link above for brides, you’ll find this list:

8 Best Wedding Websites of 2023

The first one on the list, Joy, offers this:

  • Price: Free
  • No. of templates: 601
  • Custom domain? Yes, separate domain purchase required

So you can use the site for free, they have 601 designs to choose from, and if you want a designated domain name (like Mary_and_John_Are_Having_a_Wedding) you have to give them a nominal sum, maybe $20 a year.

As I said above, there are lots of companies that offer this service to people getting married. And it doesn’t look like there’s a lot of money to be made by doing so.

Yet, a woman in Colorado with a web design business called 303 Creative apparently decided that she wanted to begin offering this service. But wait! Wouldn’t that require her company to sell her services to prospective spouses who happen to be gay? Yes, it would.

Gay people are one of the “protected classes” referred to in federal and/or state laws. In particular, Colorado has a “public accommodations” law that says:

It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, gender identity, gender expression, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.

And a “place of public accommodation” includes any business that sells its services to the public.

So what? Well, the owner of 303 Creative claims to be the kind of non-Christian “Christian” who abhors the idea of gay marriage. She says she could never bring herself to sell her services to a gay couple. What to do?

A reasonable person might say to themselves, all right, given my particular (albeit peculiar) religious beliefs, I guess I’ll skip the wedding web design business. There are weddings I wouldn’t want to handle and I don’t want to break the law.

This is where the Alliance Defending Freedom enters the picture. (I don’t know if this Colorado woman contacted them or they contacted her — maybe they went looking for a web designer with a hatred for gay marriage — it doesn’t really matter.) Here’s what the Southern Poverty Law Center says about the ADF:

Founded by some 30 leaders of the Christian Right, the Alliance Defending Freedom is a legal advocacy and training group that has supported the recriminalization of sexual acts between consenting LGBTQ adults in the U.S. and criminalization abroad; has defended state-sanctioned sterilization of trans people abroad; has contended that LGBTQ people are more likely to engage in pedophilia; and claims that a “homosexual agenda” will destroy Christianity and society.

ADF also works to develop “religious liberty” legislation and case law that will allow the denial of goods and services to LGBTQ people on the basis of religion. [ADF was] one of the most influential groups informing the [previous] administration’s attack on LGBTQ rights.

The ADF helped 303 Creative’s owner file a lawsuit to stop the state of Colorado from enforcing its public accommodation law against her, assuming that (1) she one day began offering wedding website design services, (2) a gay couple tried to buy her services, (3) she refused to sell to them and (4) the state of Colorado was interested enough to prosecute her.

Apparently, it’s an interesting legal question whether 303 Creative had “standing” to sue. Usually, you need to say you’ve suffered an injury in order to sue somebody. But the six reactionaries on the Supreme Court don’t worry much about details like that anymore. They decided the Dobbs forced-birth case in favor of doctors who said they might one day have patients who were upset after they had an abortion.

To make this long story shorter, 303 Creative’s owner sued Colorado in federal court; she lost; she appealed that decision; she lost again; and (as ADF hoped all along) the Supreme Court decided to accept the appeal, after which the Renegade Six decided in her favor. As usual it was 6-3. The majority’s main “justification” for voting that way was that making her accept a gay couple as customers would somehow interfere with her First Amendment right to free speech. Whatever.

Here’s some of Justice Sotomayor’s response to the Six’s radical decision (her dissent begins on page 33):

Five years ago, this Court recognized the “general rule” that religious and philosophical objections to gay marriage “do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law”.

… Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class. Specifically, the Court holds that the First Amendment exempts a website design company from a state law that prohibits the company from denying wedding websites to same-sex couples…. The Court also holds that the company has a right to post a notice that says “no [wedding websites] will be sold if they will be used for gay marriages”.

… “What a difference five years makes.” 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. Sadly, it is also familiar. When the civil rights and women’s rights movements sought equality in public life, some public establishments refused. Some even claimed, based on sincere religious beliefs, constitutional rights to discriminate. The brave Justices who once sat on this Court decisively rejected those claims. 

Now the Court faces a similar test. A business open to the public seeks to deny gay and lesbian customers the full and equal enjoyment of its services based on the owner’s religious belief that same-sex marriages are “false.” The business argues, and a majority of the Court agrees, that because the business offers services that are customized and expressive, the Free Speech Clause of the First Amendment shields the business from a generally applicable law that prohibits discrimination in the sale of publicly available goods and services.

That is wrong. Profoundly wrong…. The law in question targets conduct, not speech, for regulation, and the act of discrimination has never constituted protected expression under the First Amendment. Our Constitution contains no right to refuse service to a disfavored group….

The people of Colorado have adopted the Colorado Anti-Discrimination Act… A public accommodations law has two core purposes. First, the law ensures “equal access to publicly available goods and services”…. For social groups that face discrimination, such access is vital…. Second, a public accommodations law ensures equal dignity in the common market. Indeed, that is the law’s “fundamental object”: “to vindicate ‘the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.’

… Preventing the “unique evils” caused by “acts of invidious discrimination in the distribution of publicly available goods, services, and other advantages” is a compelling state interest “of the highest order”…

A public accommodations law does not force anyone to start a business, or to hold out the business’s goods or services to the public at large. The law also does not compel any business to sell any particular good or service. But if a business chooses to profit from the public market, which is established and maintained by the state, the state may require the business to abide by a legal norm of nondiscrimination.

In particular, the state may ensure that groups historically marked for second-class status are not denied goods or services on equal terms.
The concept of a public accommodation thus embodies a simple, but powerful, social contract: A business that chooses to sell to the public assumes a duty to serve the public without unjust discrimination….

The unattractive lesson of the majority opinion is this: What’s mine is mine, and what’s yours is yours. The lesson of the history of public accommodations laws is altogether different. It is that in a free and democratic society, there can be no social castes. And for that to be true, it must be true in the public market. For the “promise of freedom” is an empty one if the Government is “powerless to assure that a dollar in the hands of [one person] will purchase the same thing as a dollar in the hands of [another]”. Because the Court today retreats from that promise, I dissent.

Republicans outnumber Democrats by six to three on the Supreme Court. With even five votes, they can do whatever they want. One way to fix this problem is to expand the Court. We now have thirteen federal judicial districts, instead of nine. We should have at least thirteen justices on the Court to handle the additional workload and, more importantly, restore some sanity to the institution. Together, the Congress and the President can add justices. We need to keep a Democrat in the White House and add motivated Democrats to Congress. Otherwise, the renegades will keep whittling away at our society. There’s nothing to stop them as long as they have enough votes.

Religious Liberty and Same-Sex Sex

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Marriage isn’t an obscure practice. I bet you know married people even if you aren’t married yourself. Since marriage (the monogamous kind anyway) has always been defined as a relationship between a man (the husband) and a woman (the wife), it’s understandable that many of us are having trouble with the new definition. 

It’s also understandable that some people, including blinkered members of the Supreme Court, are resisting same-sex marriage, arguing that it’s just too weird or that the Constitution doesn’t require legalizing it (their argument being that “equal protection of the laws” doesn’t necessarily mean equal protection of the laws). 

But there’s another reason being offered against same-sex marriage that I’m having more trouble understanding. Here’s the relevant language from Justice Thomas’s dissent (which begins at page 78 of this file):

… the majority’s decision threatens the religious liberty our Nation has long sought to protect….In our society, marriage is not simply a governmental institution; it is a religious institution as well….Today’s decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples….

Religious liberty is about more than just the protection for “religious organizations and persons . . . as they seek to teach the principles that are so fulfilling and so central to their lives and faiths” …  Religious liberty is about freedom of action in matters of religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious practice [pp. 14-15 of the dissent].

Thomas’s concern is that religious liberty includes “freedom of action in matters of religion” and that legalizing same-sex marriage will lead to lots of situations in which people won’t be allowed to practice their religion as they wish. He doesn’t provide any examples, but claims that demands will be made to “participate in and endorse” marriage-related activities to which people object on religious grounds. In support of his position, Thomas refers to the amicus curiae (friend of the court) brief submitted by the Seventh-Day Adventist Church.

The Church anticipates problems of two kinds:

(1) Churches and church-affiliated organizations won’t be eligible for certain benefits if they discriminate against same-sex married couples. For example, church-run adoption agencies might lose their state licenses if they refuse to place children with same-sex couples. Church-run homeless shelters could lose government grants. Religious colleges might lose their accreditation or their access to government financial aid programs. Likewise, individual employees might lose their jobs or be disciplined if they refuse to provide services to same-sex couples.

(2) Individuals will bring lawsuits against churches and church-affiliated organizations that discriminate against such couples, charging illegal discrimination. Religious institutions might be subject to public accommodation laws that require businesses to provide products and services to anyone who can pay. Same-sex couples denied student housing might sue. Employees in same-sex marriages might sue religious organizations in order to keep their jobs.

In these various cases, the Church is arguing that anyone who conscientiously objects to same-sex marriage on religious grounds should have the right to discriminate against same-sex couples. On the face of it, that sounds illegal. But it might not be. An article in The Atlantic explains why:

No law, state or federal, forbids “discrimination” generally. Employers, landlords, and businesses “discriminate” all the time—on the basis of low credit ratings, bad references, and poor employment histories, among other factors. Any type of private discrimination is legal unless a state or federal law specifically forbids it….

Thus, a civil-rights statute has two key parts. The first lays out the traits it governs, the forbidden grounds—for example, … “race, color, religion, sex, or national origin.” To state a claim, plaintiff must show that he or she has been treated less favorably than others who differ in one of the covered traits, and that the unfavorable treatment was because of that trait….

Then the law specifies what activities it covers, and usually offers certain exemptions. For example, … the Fair Housing Act bars a landlord from refusing to rent to anyone because of “race, color, religion, sex, familial status, or national origin.” But it allows religious organizations that own dwellings to favor members of their own sect…

The question, therefore, is where to draw the line between people’s freedom to practice their religion as they see fit and other people’s right to be treated fairly. Religious opponents of same-sex marriage want to draw the line so they can discriminate against same-sex couples in lots of different ways (“we won’t let you attend our college”). Supporters of same-sex marriage want same-sex couples to be treated like other married couples.

Maybe everyone would agree that a minister who thinks same-sex marriage isn’t sacred should not have to officiate at a same-sex wedding. It makes some sense to me that a church-run adoption agency might not want to give a child to a same-sex couple (a Catholic charity in Boston apparently shut down their adoption services to avoid doing that — I’m not endorsing their decision — I’m simply saying it’s understandable from their perspective). But it’s hard to believe there are good religious reasons for the many kinds of discrimination the Seventh Day Adventists and other churches apparently want to practice. 

How can it be against someone’s religion to provide counseling to a same-sex married couple? Or give them food or shelter? Or allow them to attend the college you administer? Or buy flowers or a cake from your shop?

The answer, of course, is that those kinds of discrimination aren’t required by anyone’s religion. In this case, claiming to have religious reasons (or “core religious beliefs”) that justify treating certain people worse than others is a way to attack or renounce their sexual orientation. That’s why the phrase “aid and abet” sometimes appears in discussions of this issue. Opponents don’t want to “aid and abet” what they consider to be deviant sexual behavior, as if that behavior were criminal. They somehow think that acknowledging same-sex marriage or providing aid and comfort to same-sex couples amounts to endorsing same-sex sex.

Certainly, many oppose this evolution in the definition of marriage because it’s strange and new. Following religions that are thousands of years old tends to foster conservatism (the kind that honors tradition, not the fake “conservatism” we hear so much about these days). But the real reason same-sex marriage bothers some people so much is that being in a same-sex marriage is public confirmation that a person has same-sex sex. A person can be gay or a lesbian without announcing that fact to their minister or rabbi, or their college administration, or the staff at their local county clerk’s office. But getting married to someone of the same sex delivers a very clear message. You have the kind of sex that really bothers some people. And you’re planning to have a lot of it for a very long time. You aren’t going through a phase. You aren’t going to change your ways with a bit of counseling. So deal with it.

As a religious person, you can react to this new situation in different ways. You can say “Yuck! I don’t like this at all!” and maybe offer some reasons, religious or otherwise. Or you can mind your own business (“let him who is without sin…”). Or be thankful that more people will be getting married, which is supposed to be a good thing. But you shouldn’t use your religion as an excuse for discrimination. Why make life difficult for people who haven’t done you any harm? Their liberties are just as important as yours.