June 30, 2023 - In response to the Supreme Court ruling that businesses may deny services to LGBTQI+ people, the Center for Constitutional Rights released the following statement:
Today, in its latest display of its political activism, the Supreme Court sanctioned discrimination by giving businesses that engage in "expressive conduct" a license to deny services to LGBTQI+ people. We have known for a long time that in the eyes of the Court, there are only two Constitutional rights that matter: the First Amendment right to religious expression and the Second Amendment right to bear arms. Nonetheless, today’s decision was crushing. It deals another blow to a community already under attack in legislatures across the country, by the very same movement that claims the allegiance of six justices on the Supreme Court.
Public accommodations laws regulate what businesses must do, not what they must think, if they seek the public benefit of accessing the public marketplace. Such nondiscrimination laws, like the one in Colorado, are designed to ensure that LGBTQI+ people can freely shop for services like everyone else, rather than being required to shop for businesses that don’t discriminate against them. The right-wing justices have once again signaled that their mission is to dismantle laws that protect marginalized communities and to use the law to back punitive and exclusionary social hierarchies. As Justice Sotomayor lays out in the dissent, “[t]hose who would subordinate LGBT[QI+] people have often done so with the backing of law.”
In this case, the Court was so determined to carry out its mission that it bypassed Constitutional requirements of standing by weighing in on an imaginary dispute concocted by conservative legal activists and issuing an advisory opinion, so that they could legislate policy.
The Religious Liberty Clauses of the First Amendment have been historically used to protect minority religions against discrimination by majoritarian orthodoxy and to advance a pluralistic, egalitarian democracy. It is thus especially perverse that this Court would delight in producing the exact opposite, anti-democratic result: granting orthodox Christianity an imagined constitutional freedom to discriminate against the minority LGBTQI+ community. And, as Justice Sotomayor emphasized, the decision is not limited; it could give license for businesses to discriminate against interracial couples because of the pervasive extremist-evangelicalist commitment to segregation.
Together with yesterday’s decision invalidating affirmative action, this ruling lays bare the values of this Court. In six justices’ view, the Constitution says it is just fine for a business to exclude someone on the basis of their protected status (LGBTQI+), but it is unconstitutional for a university to include someone on the basis of their protected status (race). This is bigotry masquerading as law. And, in so ruling again, this Court continues to advance a Jim Crow jurisprudence in which the white, male, Christian insider’s freedom is made meaningful only through the subjugation of vulnerable populations. For this conservative movement, as for John Calhoun or George Wallace, discrimination fuels their feelings of freedom. These six individuals somehow retain the power to impose their 18th Century values on a democratic majority that believes in equality and fairness. The Court has little legitimacy left.
We reject these cruel and unlawful decisions and the cowardly attempts by a right-wing movement to wield the Constitution to protect white power and deny the human rights of the multitude. But human rights cannot be suspended by reactionaries in robes. And they cannot be secured by even enlightened court rulings. If there is solace to be found today, it is in the knowledge that that task before us is the same as it was yesterday: to resist, organize, and unite. Our potential collective power, and only that, offers hope of liberation and full human dignity for LGBTQI+ people and other marginalized communities.
The Center for Constitutional Rights works with communities under threat to fight for justice and liberation through litigation, advocacy, and strategic communications. Since 1966, the Center for Constitutional Rights has taken on oppressive systems of power, including structural racism, gender oppression, economic inequity, and governmental overreach. Learn more at ccrjustice.org.