Stay up to date with notifications from The Independent

Notifications can be managed in browser preferences.

The Supreme Court just made me a second-class citizen

The Supreme Court has ignored a crucial distinction

Skylar Baker-Jordan
Friday 30 June 2023 18:59 BST
Supreme Court rules in favor of Christian web designer

I woke up on June 1 an American citizen enjoying equal protection under the law. I end Pride Month a second-class citizen.

In a 6-3 decision split along party lines, this Republican Supreme Court today ruled that it is lawful for Christian businessowners to discriminate against same-sex couples. The case was brought by one Lorie Smith, a Colorado web designer who is being supported by the Alliance Defending Freedom (ADF), a far-right Christian organization classified as an anti-LGBT+ hate group by the esteemed Southern Poverty Law Center.

Believing that same-sex marriages are “false,” she sued, alleging that Colorado’s anti-discrimination law violated her First Amendment rights by compelling her to produce speech which contradicts her sincerely held religious beliefs. The Supreme Court agreed with Smith and the ADF that serving a gay couple would be a bridge too far for this nice Christian lady. She has a right to discriminate.

As a writer and journalist, I believe very strongly in the sanctity of the First Amendment. Freedom of speech is precious. In that regard, even though I am gay, I am inclined to agree with Smith and the Court that compelled speech is a violation of that sacred right.

Except, Smith is not creating work from scratch or producing art in the way that a novelist or a painter or even a newspaper columnist like me is. Instead of creating a work of art and then selling it in the public market, she solicits customers with the stated intention of making a product to suit their needs. This is not about Smith’s free expression, then. It is about same-sex couples’ rights to participate equally in the free market.

In a big city like Denver, this may not be an issue. Plenty of web designers will be happy to serve same-sex couples. In rural parts of Colorado, as is true across this nation, it becomes much more burdensome on lesbian and gay citizens.

Websites can be designed from anywhere, but the Court’s logic applies to other “creative” industries as well. Suddenly, gay couples in rural America may find it difficult to locate a baker to make them a wedding cake, a photographer to take their wedding photos, or a caterer for their reception. Because discrimination is now legal under the guise of preventing “compelled speech,” any such profession where one hires themselves and their talents out – as opposed to producing art of their own – can now refuse to serve an entire segment of society based on who they are and their exercising of a Constitutional right. (At least, until this extremist Court takes away our right to equal marriage as well, which Justice Clarence Thomas has previously indicated a desire to do.)

Therein lies the crucial distinction this Court ignores. Smith was not being asked to endorse the concept of gay marriage. She was being asked to do a job – a job she would gladly do if the couple was not gay. Had she been asked to espouse a belief which violated her conscience, I would agree with the Court’s decision. This actually happened in the case of Ashers Baking Company in Northern Ireland, where the UK Supreme Court found that the Christian owners had a right to refuse to bake a cake with the message “support gay marriage” because it violated their own beliefs. “Support gay marriage” is a political belief, which the British court rightly found could amount to compelled speech.

Serving gay people who happen to be entering into a legally recognized marriage, however, is not a political belief. It is discrimination against the couple based on a protected characteristic – in this case, their sexual orientation. Smith’s attorneys assert their client would also refuse to serve a heterosexual couple whose marriage violated her beliefs (say, a union born of an adulterous relationship). There is no way she would even know that to be the case, though, unless she is psychic, the couple tells her, or we begin forcing cheating spouses to wear a scarlet “A” like they are Hester Prynne. No decent person wants that.

Gay couples do not have the luxury of hiding from Smith’s prejudices. We are visible by the fact that we are not heterosexual. You don’t have to ask if we are gay – if you see two male names or two female names, or you meet two men or two women, reasonable people can put two and two together. Unfortunately, people like Smith are not reasonable; the idea of two and two together doesn’t equal four, it equals sin, and her right to judge is now more important than the couples’ right to exist in public without fear of discrimination.

Even that might be justifiable if turnabout was fair play. If a gay graphic designer could refuse to serve an evangelical heterosexual couple because their religion condemns homosexuality, we would have a chaotic but equal system.

That is not the case, though. If the shoe was on the other foot, the ADF would no doubt sue for religious discrimination under the First Amendment and/or the Civil Rights Act. It is inconceivable that this Court would find the same First Amendment it found protects a religious person’s right to discriminate against same-sex couples also protects a gay couple’s right to “sincerely held beliefs” not to serve those they may deeply feel are hateful bigots for opposing their own equality under law.

If that sounds like strong language to a Smith or someone like her who wants to discriminate against gay couples because she thinks they are sinners destined to burn in Hell, well, Smith’s own position is equally as offensive to me – not because she believes it, but because she wishes to use it to subordinate the civil rights of her fellow Americans to her own religious prejudices. If Smith was simply an evangelical Christian spouting what I believe to be offensive rhetoric online, but treating gay people equally under the law, I would have no grievance with her. I believe strongly in a pluralistic society, so do not actually have a problem with people holding orthodox religious views or believing homosexuality is a sin. I wouldn’t be their friend, but I adopt a live-and-let-live mentality.

What I do have a problem with is people who want to force those views on the rest of us or deny equality to their fellow Americans because of them. I have an even bigger problem when a Supreme Court which should be protecting the rights of all Americans instead decides some Americans are more equal than others.

That is what happened today. While looking at the First Amendment, these reactionary extremists in judicial robes ignored the promise of the Fourteenth Amendment, which declares all Americans should enjoy equal protection under the law. It is as unconscionable as it is un-American.

The Supreme Court has now created a two-tiered justice system, one in which gay people can be discriminated against because of a person’s prejudice but cannot themselves discriminate against that prejudice. Lesbian and gay Americans are no longer equal citizens under the law, but rather a subset of Americans who it is now acceptable to discriminate against – as long as you do it from behind the Bible.

Join our commenting forum

Join thought-provoking conversations, follow other Independent readers and see their replies


Thank you for registering

Please refresh the page or navigate to another page on the site to be automatically logged inPlease refresh your browser to be logged in