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U.S. Supreme Court

In 303 Creative ruling, SCOTUS marks ‘gays and lesbians for second-class status’

Decision was 6-3 along ideological lines

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The Supreme Court as composed June 30, 2022 to present. Front row, left to right: Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, Chief Justice John G. Roberts, Jr., Associate Justice Samuel A. Alito, Jr., and Associate Justice Elena Kagan. Back row, left to right: Associate Justice Amy Coney Barrett, Associate Justice Neil M. Gorsuch, Associate Justice Brett M. Kavanaugh, and Associate Justice Ketanji Brown Jackson. (Photo Credit: Fred Schilling, The Supreme Court of the U.S.)

The U.S. Supreme Court’s conservative supermajority on Friday ruled in favor of Lori Smith, the graphic artist who did not want to make wedding websites for same-sex couples despite Colorado’s nondiscrimination law barring discrimination on the basis of sexual orientation.

ā€œThe 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,ā€ Justice Neil Gorsuch wrote in the majority 6-3 decision along ideological lines in 303 Creative v. Elenis.

The liberal justices, however, called the majority’s finding of a free speech exemption to nondiscrimination rules “unprecedented,” warning it would blow a hole through these laws and pave the way for anti-LGBTQ discrimination by businesses.

ā€œToday 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,ā€ Justice Sonia Sotomayor wrote in her dissent, joined by Justices Elena Kagan and Ketanji Brown Jackson.

The liberal justices argued the Colorado law targets conduct, not speech.

ā€œToday is a sad day in American constitutional law and in the lives of LGBT people,ā€ Sotomayor wrote. “The immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status.ā€

Biden, U.S. lawmakers, LGBTQ groups weigh in

President Biden reacted saying in a statement released by the White House:

ā€œIn America, no person should face discrimination simply because of who they are or who they love. The Supreme Courtā€™s disappointing decision inĀ 303 Creative LLC v. ElenisĀ undermines that basic truth, and painfully it comes during Pride month when millions of Americans across the country join together to celebrate the contributions, resilience, and strength of the LGBTQI+ community. While the Courtā€™s decision only addresses expressive original designs, Iā€™m deeply concerned that theĀ decision could invite more discrimination against LGBTQI+ Americans.Ā More broadly, todayā€™s decision weakens long-standing laws that protect all Americans against discrimination in public accommodations ā€“ including people of color, people with disabilities, people of faith, and women.
Ā 
My administration remains committed to working with our federal enforcement agencies to rigorously enforce federal laws that protect Americans from discrimination based on gender identity or sexual orientation. We will also work with states across the country to fight back against attempts to roll back civil rights protections that could follow this ruling. And we will accelerate our march towards full equality for every American.
Ā 
When one groupā€™s dignity and equality are threatened, the promise of our democracy is threatened and we all suffer. Our work to advance equal rights for everyone will continue. That is why we must pass the Equality Act, which will enshrine civil rights protections for LGBTQI+ Americans in federal law and strengthen public accommodations protections for all Americans. I urge Congress to swiftly send this legislation to my desk.ā€

Shannon Minter, legal director of the National Center for Lesbian Rights, shared an emailed statement with the Blade:

“As the dissenting justices rightly stress, this is a deeply disappointing decision that, for the first time in our nationā€™s history, holds that the Constitution permits discrimination in the commercial sphere,” adding, “There is no principled basis for this egregious departure from more than a hundred years of precedent.”

On the other hand, Minter said, “the scope of the ruling is incredibly narrow and will not apply to the overwhelming majority of businesses,” but “Unfortunately, the State of Colorado stipulated to a number of ‘facts’ about the designerā€™s hypothetical service of designing websites for weddings,” which “provided a basis, however flimsy, for the majority to rule as it did, including Coloradoā€™s stipulation that the designer picks and chooses which clients she will serve based on whether she agrees with their viewpoints, that each site she designs is customized and original, and that the sites are ‘art’ and express her own personal views, not those of the clients.”Ā 

Minter said “Very few other businesses meet these criteria, so this ruling will have little if any application to ordinary businesses, including those that involve some element of creativity or expression. Under the majority ruling, it is not enough that a service is creative or expressive, the business must selectively choose clients, not open its doors to all, must create a highly customized product, and it must be clear that the product is expressing the views of the business owner, not the customer.Ā  There are very few such businesses.”Ā 

“Nonetheless, this is a sad day for our country and our Constitution. The majority has gone out of its way to gerrymander an exception to nondiscrimination laws that sends a terrible messageā€”especially to LGBTQ peopleā€”at a terrible time, when there is a resurgence of anti-LGBTQ bias and a backlash against equality for women, people of color, and LGBTQ people. I am confident our county will rise above this moment, as we have done in the past, but this is a painful day,” Minter said.

Among the first advocacy groups to condemn the decision was the National Black Justice Coalition, a leading Black LGBTQ+ civil rights organization.

ā€œThe anti-democratic, segregationist, white nationalistic Alliance Defending Freedom (ADF), which is party to this case, has a well-documented history of using legal strategies to erode LGBTQ+ rights, perpetuating discrimination and stigmatization,” said the Coalition’s Executive Director David Johns.

“AĀ perilousĀ precedent is set when the ADF is allowed to manufacture a case in search of a solution to a problem that doesnā€™t even exist for the plaintiff, undermining the principles of justice, equality, and nondiscrimination that are the bedrock of our nation,” he said.

ADF, which represented the plaintiff Lori Smith, is described by the Southern Poverty Law Center as an anti-LGBTQ hate group.

Minutes later, America’s largest LGBTQ organization, the Human Rights Campaign, issued a press release: ā€œMake no mistake, this case was manufactured by the Alliance for Defending Freedom to create a new license to discriminate against LGBTQ+ people,” said HRC President Kelley Robinson.

“Despite our opponents claiming this is a major victory, this ruling does not give unfettered power to discriminate,” Robinson wrote. “This decision does not mean that any LGBTQ+ person can be discriminated against in housing, employment or bankingā€”those protections remain enshrined with federal law.”Ā 

U.S. Sen. Tammy Baldwin (D-Wis.), America’s first openly gay senator, was among the first members of Congress to address the ruling, writing in a statement:

ā€œThis is about fairness and freedom ā€“ about whether LGBTQ+ Americans deserve fairness and freedom to be treated just like everyone else. It is simply wrong to discriminate against any American based on who they are or who they love, and Americans agree. This decision is a step backward in our fight to live up to our nationā€™s ideal of equality, but we cannot let this activist Supreme Court have the last word. I am more committed than ever to fighting to ensure every American can live freely and without discrimination.ā€Ā 

The U.S. Congressional Equality Caucus, through its Chair, U.S. Rep. Mark Pocan (D-Wis.), issued a statement arguing that Friday’s “abhorrent” decision “provides a constitutional basis for businesses that provide customized expressive services to discriminate against all marginalized people currently protected by public accommodations nondiscrimination laws.”

U.S. Rep. Mark Takano (D-Calif.), a co-chair of the Equality Caucus, called Friday’s ruling “horrifying and stunning” in a statement, writing “Todayā€™s harmful decision opens the door for unimaginable legal discrimination against marginalized people.”

Takano added, “We must expand the Supreme Court immediately.ā€

“Millions of Americans,” wrote the Democratic Attorneys General Association, “have been rightly concerned that the floodgates would open to a raft of legal challenges to vital LGBTQ+ protections.”

The group added, “Between rulings like this, waves of extreme and hateful legislation, and an increase in anti-LGBTQ+ threats and violence, the fact is that this is indeed a frightening time for the LGBTQ+ community.”

GLAAD’s statement noted that “Not one LGBTQ couple sought the businessā€™ services so this case is a massive abuse of the judicial system and part of a coordinated effort from groups like the Alliance Defending Freedom to leverage corrupt extremist justices to roll back rights of marginalized Americans.”

Departing from the LGBTQ and civil rights advocacy groups that universally objected to Friday’s ruling was the conservative LGBT organization, Log Cabin Republicans.

“Today’s Supreme Court decision is a win for anyone who believes, as LGBT conservatives do, in freedom of speech and religious expression, even when we may not agree with it,” said LCR President Charles Moran.

“LGBT conservatives,” he said, “have long believed, as Justice Gorsuch wrote in his opinion, that ‘tolerance, not coercion, is our nation’s answer, and forcing anyone to create expressive speech with which they disagree is a massive step backwards.””

Ā 

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U.S. Supreme Court

164 members of Congress urge Supreme Court to protect trans rights

GRACE files separate brief in gender affirming care case

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U.S. Supreme Court (Washington Blade photo by Michael Key)

A group of 164 members of Congress filed an amicus brief on Tuesday urging the U.S. Supreme Court to defend transgender Americans’ access to medically necessary healthcare as the justices prepare to hear oral arguments this fall in U.S. v. Skrmetti.

Lawmakers who issued the 27-page brief include House Democratic Leader Hakeem Jeffries (N.Y.) House Democratic Whip Katherine Clark (Mass.), House Democratic Caucus Chairman Pete Aguilar (Calif.),Ā U.S. Sens. Ed Markey (D-Mass.) and Jeff Merkley (D-Ore.), and Congressional Equality Caucus Chair U.S. Rep. Mark Pocan (D-Wis.), along with the caucus’s 8 co-chairs and 25 vice-chairs. Ranking members of the powerful House Judiciary and House Ways and Means Committees, U.S. Reps. Jerry Nadler (D-N.Y.) and Frank Pallone Jr. (D-N.J.), were also among the signatories.

The case, among the most closely watched this term, will determine whether Tennessee’s ban on gender-affirming care for minors, along with a similar law passed in Kentucky, violate the Equal Protection Clause of the 14th Amendment.

In their brief, the lawmakers urge the Supreme Court to treat with skepticism “legislation banning safe and effective therapies that comport with the standard of care” and to examine the role of “animosity towards transgender people” in states’ gender affirming care bans.

ā€œDecisions about healthcare belong to patients, their doctors, and their familiesā€”not politicians,ā€ Pocan said. ā€œThe law at issue in this case is motivated by an animus towards the trans community and is part of a cruel, coordinated attack on trans rights by anti-equality extremists. We strongly urge the Supreme Court to uphold the constitutionā€™s promise of equal protection under the law and strike down Tennesseeā€™s harmful ban.ā€

ā€œFor years, far-right Republicans have been leading constant, relentless, and escalating attacks on transgender Americans. Their age-old, discriminatory playbook now threatens access to lifesaving, gender-affirming care for more than 100,000 transgender and nonbinary children living in states with these bans if the Supreme Court uphold laws like Tennesseeā€™s at the heart ofĀ SkrmettiĀ fueled by ignorance and hate,” Markey said.

ā€œTransgender people deserve the same access to healthcare as everyone else,” said Nadler. “There is no constitutionally sound justification to strip from families with transgender children, and their doctors, the decision to seek medical care and give it to politicians sitting in the state capitol. I trust parents, not politicians, to decide what is best for their transgender children.ā€

Pallone warned that if Tennessee’s ban, S.B. 1, is “allowed to stand, it will establish a dangerous precedent that will open the floodgates to further discrimination against transgender Americans.ā€

ā€œUnending attacks from MAGA extremists across the nation are putting trans youth at risk with hateful laws to ban gender-affirming care,” said Merkley author of the Equality Act. “Letā€™s get politiciansā€”who have no expertise in making decisions for patientsā€”out of the exam room.Ā The Court must reject these divisive policies, and Congress must pass the Equality Act to fully realize a more equal and just union for all.ā€

Also filing an amicus brief on Tuesday was the Gender Research Advisory Council + Education (GRACE), a transgender-led nonprofit that wrote, in a press release, “SkrmettiĀ  is critically important to the transgender community because approximately 40% of trans youth live in the 25 states that have enacted such bans.”

The group argued laws like Tennessee’s S.B. 1 are cruel, discriminatory, and contradict “the position of every major medical association that such treatments are safe, effective and medically necessary for adolescents suffering from gender dysphoria.”

GRACE’s brief includes 28 families “who hope to share with the Court that they are responsible, committed parents from a variety of backgrounds who have successfully navigated their adolescentā€™s transition.”

ā€œThese parents sought medical expertise for their children with diligence regarding the best care available and input from experienced physicians and mental health professionals and they have seen firsthand the profound benefits of providing medically appropriate care to their transgender children,” said GRACE Board Member and brief co-author Sean Madden.

Left unchecked, this may start with the transgender community, but it certainly won’t end there,” added GRACE President Alaina Kupec. “Next it could be treatments for HIV or cancer.ā€

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U.S. Supreme Court

Concern over marriage equality in US grows two decades after first Mass. same-sex weddings

Gay and lesbian couples began to marry in Bay State in 2004

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(Bigstock photo)

Two decades after Massachusetts became the first state to legalize same-sex marriage, a new study reveals both significant progress and ongoing challenges for married LGBTQ couples in the U.S., with a growing sense of insecurity about the future of their rights.

The Williams Institute at UCLA School of Law surveyed 484 married same-sex couples from all 50 states and D.C. The study, released Monday, marks the 20th anniversary of legal same-sex marriage in the U.S.

Researchers found that 93 percent of respondents cited love as a primary reason for marrying, with 75 percent also mentioning legal protections. Over 83 percent reported positive changes in their sense of security, and 74.6 percent noted improved life satisfaction since marrying.

However, the study also highlighted persistent discrimination and growing concerns about the future. About 11 percent of couples who had a wedding reported facing prejudice during the planning process.

Alarmingly, nearly 80 percent of respondents expressed concern about the potential overturning of the 2015 Obergefell v. Hodges decision, which legalized same-sex marriage nationwide. This anxiety has been exacerbated by initiatives like Project 2025, a conservative policy blueprint that some fear could roll back LGBTQ rights if implemented.

The possibility of a former President Donald Trump victory in the upcoming election has further intensified these concerns. Many respondents cited Trump’s previous U.S. Supreme Court appointments and his statements on LGBTQ issues as reasons for their apprehension. One participant stated, “The thought of another Trump presidency keeps me up at night. We’ve come so far, but it feels like our rights could be stripped away at any moment.”

The current political climate has 29 percent of respondents considering moving to another state, with 52.9 percent citing socio-political concerns as a primary reason. This reflects a growing sense of insecurity among LGBTQ couples about their rights and freedoms.

Brad Sears, founding executive director of the Williams Institute, noted, “The data clearly show that marriage equality has had a profound positive impact on same-sex couples and their families. However, it also reveals ongoing challenges and serious concerns about the future of these rights in light of current political trends and the upcoming election.”

Christy Mallory, legal director at the Williams Institute and lead author of the study, added, “This research provides crucial insights into the lived experiences of same-sex couples two decades after marriage equality began in the U.S. The high level of concern about potential loss of rights underscores the continued importance of legal protections and public support for LGBTQ+ equality.”

The study found that 30 percent of surveyed couples have children, with 58.1 percent of those parents reporting that marriage provided more stability for their families. However, many of these families now worry about the security of their legal status in the face of potential policy changes and shifting political landscapes.

As the nation reflects on two decades of marriage equality, the study underscores both the transformative power of legal recognition and the ongoing need for vigilance in protecting LGBTQ+ rights. The findings highlight the complex reality faced by same-sex couples in America today: Celebrating hard-won progress while grappling with uncertainty about the future, particularly in light of upcoming political events and potential shifts in leadership.

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Supreme Court to consider challenge to Tenn. law challenging gender-affirming case for minors

Volunteer State lawmakers approved ban in 2023

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U.S. Supreme Court (Washington Blade photo by Michael Key)

The U.S. Supreme Court on Monday agreed to consider a challenge to a Tennessee law that bans health care providers from offering gender-affirming care to transgender minors.

Tennessee lawmakers approved the law in 2023.

A federal judge in Nashville issued a temporary injunction against portions of the statute before it was to have taken effect on July 1, 2023. The 6th U.S. U.S. Circuit Court of Appeals last September rejected a request to block the law the Justice Department has also challenged.

ā€œThe future of countless transgender youth in this and future generations rests on this court adhering to the facts, the Constitution, and its own modern precedent,ā€ said Chase Strangio, deputy director for transgender justice at the American Civil Liberties Union’s LGBTQ and HIV Project, on Monday in a press release. “These bans represent a dangerous and discriminatory affront to the well-being of transgender youth across the country and their constitutional right to equal protection under the law. They are the result of an openly political effort to wage war on a marginalized group and our most fundamental freedoms.”Ā 

“We want transgender people and their families across the country to know we will spare nothing in our defense of you, your loved ones, and your right to decide whether to get this medical care,ā€ added Strangio.

The Associated Press reported Tennessee is among the more than two dozen states that have enacted laws that either restrict or ban gender-affirming care for trans minors.

The ACLU notes the Supreme Court “is not expected to hear arguments” in the case until the fall.

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