Why the US Supreme Court’s decision in favour of website designer who refused to serve gay couples is a free pass to discrimination

By denying LGTBQIA+ rights, the US Supreme Court's verdict is a tactical erosion of individual liberty, remains rather inconsistent with the country's jurisprudence, and is likely to cause a ripple effect around the world. 

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ON June 30, 2023, US Supreme Court, in 303 Creative LLC versus Elenis, ruled in favour of a Christian web designer who refused to create websites for the LGBTQIA+ community on religious grounds. 

The decision taken by the Supreme Court is a devastating blow to the court's decision in Bostock versus Clayton County (2020). In the landmark Bostock judgment, the court had extended federal civil rights law to gay, lesbian and transgender workers. 

The decision in 303 Creative LLC also contradicts Obergefell versus Hodges (2015), which legalised same-sex marriage in all 50 states US states. In a 6:3 majority, the court cemented its decision on the grounds of the right to freedom of speech.

The premise of the 303 Creative LLC verdict was set on the content posted on a web page. Lorie Smith, a business person, expressed her intention of expanding her business into the wedding sphere and simultaneously mentioned her reservations to create websites for same-sex couples. 

However, Colorado's public accommodation law prevented her from doing so, which prompted her to challenge the law in the Supreme Court. 

Writing for the majority, Justice Neil Gorsuch argued, "[T]he 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." Colorado's public accommodation law sought to prevent that 'promise', the majority judgment averred.

Justice Sonia Sotomayor in her dissent argued that the decision will undermine the government's compelling interest in making public market spaces accessible to all people. She wrote, "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." 

Also read: Bar Council of India turns ventriloquist for 'common men', opposes marriage equality

The 303 Creative LLC case presents a carefully crafted juxtaposition of two rights: the right to free speech and the right against discrimination. 

The Supreme Court in Brandenburg versus Ohio (1969) held that every single form of speech and expression, involving political speech before it reaches the level where it incites imminent violence, enjoys core and absolute constitutional protection. 

The Brandenburg case overruled the Supreme Court's five-decades-old clear-and-present-danger doctrine established in Schenck versus United States (1919), which offered unchecked power to the State to curb any form of dissent. 

Writing for the majority in the Schenck case, Justice Oliver Wendall Holmes Jr had argued that the State could punish any speech if it poses "a clear and present danger of bringing about substantive danger that the Congress may prohibit." This undoubtedly offered unchecked power to the State to curb all forms of dissent. 

A cursory glance at the 303 Creative LLC judgment shows that it is compatible with the standard laid in the Brandenburg case and corroborates the speaker's first amendment rights. But a closer look at the verdict brings out certain issues that are incompatible with the Constitution's free speech rights and the right against discrimination.

Although the content of the website does not incite any imminent and immediate violence, it widens the scope to further alleviate the structural violence existing in society. 

The court's decision has given a free pass to all business establishments to actively exclude a section of the citizenry from accessing these public spaces. 

Also read: National and Delhi Commissions for Protection of Child Rights on opposing sides on adoption by same-sex couples

Thus, the nature of the speech inflicts long-term violence by actively excluding a section of people differently on account of their sexual identity. Here, not only the State safeguards the structures of domination that the society exercises but legitimises these structures through the institution of the State. 

Additionally, the premise of this discrimination is further reinforced by unequal power dynamics within the framework of the majority and the minority. When the court's verdict legitimises differential and discriminatory practices against minorities, the institution of the State actively acts like a majoritarian entity. 

The outlook of the court takes one back to the old conundrum of what happens when the State and its institutions place the fate of minority rights at the whims of the majority by actively legitimising the institutions of discrimination.

Beyond discrimination, the verdict opened a wide range of possibilities for the State and the people to challenge the evolving jurisprudence of LGBTQIA+ rights that was bolstered by recent judgments like the legalisation of same-sex marriage. 

The 303 Creative LLC verdict might also have a significant effect on the jurisprudence on equality concerning LGBTQIA+ rights around the world. 

In a significant development in Nepal, the Supreme Court on June 28, 2023, issued an interim Order to the government to make necessary arrangements for registering same-sex marriage. The matter of same-sex marriage was also diligently debated in the Supreme Court of India, awaiting its final verdict once the Supreme Court reconvenes after the summer vacation. 

Also read: Marriage equality in Nepal: A long walk to freedom despite recent fillip by the Supreme Court

The Constitutions of liberal democracies prohibit discriminatory practices, especially when they are reinforced by unequal power relations. The judiciary as the defender of citizens' constitutional rights adjudicates these unequal power relations either between the State and its citizens or sustains them by structures of repression.

The Constitution as a site for self-determination encourages everyone to realise their potential through a set of rights. While granting these rights, the Constitution regards each citizen as a free, equal and rational being. 

As a natural corollary, citizens are entitled to exercise these rights on an equal footing. But when the State and its institutions reinforce the very structures of domination that the Constitution aspires to dismantle, the spirit of the democratic Constitution gets defeated.

Therefore, amidst the clash between individual autonomy and collective will, when the constitutional commitment to dismantle the structural hierarchy gets disrupted, the agency of the citizens should prevail.