When is a website just a website and when can it be considered a form of expression covered by the First Amendment?
And if the law applies to a website owner who wishes not to serve LGBTQ clients, then could a website be a restaurant that wishes not to serve gay people?
Or maybe even a private university that wishes not to serve LGBTQ students? The ACLU, which heretofore has been absolutist on free speech rights for even the most odious, has reportedly released a statement that warns what could happen:
“If 303 Creative wins here, we will live in a world in which any business that has an expressive service can put a sign that says, ‘Women Not Served, Jews Not Served, Black People Not Served.”
It’s hard not to think of the history we’ve had to overcome as we hear the oral arguments in the 303 Creative Ltd. Vs. Elenis case heard by the U.S. Supreme Court on Monday.
It’s the case where a Colorado web designer, Lorie Smith, refuses to make wedding websites for LGBTQ couples because it infringes on her artistic free speech.
And it could be a major step backward.
Most people know about the historic Jim Crow laws in the South. But did you know in the 1920s in California there were anti-Asian signs that said, “No Filipinos Allowed”?
Subsequent to that after Dec 7, 1941 there were similar views against Asian American Japanese people, which ultimately fueled the incarceration of innocent Asian Americans around the country.
In the 303 Creative case, the attorney general of Colorado has argued that a business open to the public must serve all of the public.
That essentially was the conclusion after a similar 2018 ruling over wedding cakes in Colorado.
The wedding cakes were easy for the Supreme Court to rule on. But I guess they didn’t consider the scripted frosting and decorations on a wedding cake as a First Amendment right.
It’s a different story for a wedding website.
So now we have the insertion of the First Amendment rights that would allow discrimination based on a business owners’ free speech rights.
It could be the pathway to legal discrimination in the land.
Just think how that could apply to private universities whose trustees and board members believe as the website maker.
Are you ready for a new era of Affirmative Discrimination?
If the court upholds a website designer’s assertion that creating a marriage website conflicts with her free speech and religious right, what is to stop a college, its administrators, and professors from saying they cannot teach or serve LGBTQ people whose beliefs offend their rights?
And, of course, why stop there?
As the ACLU suggests, why would a racist empowered by the First Amendment stop at the LGBTQ? If the plaintiffs win it will cause an avalanche of racism. It will be protected racism as speech.
Too hypothetical for you?
There were a lot of hypotheticals that came up among the justices questions on Monday, which only revealed a clear division between the conservatives and the liberals especially when it comes to religious freedom.
The court’s ruling is expected sometime next year. I don’t know how the justices will rule on this case. But we know how they were very willing to end abortion rights.
And we know the political class is ready for more “in your face” racism.
We’ve already seen the moral failure in our political leaders recently.
Where was the Republican Party in denouncing the former President Donald Trump’s dinner with anti-Semite Ye, formerly known as rapper Kanye West, and his partner Nicholas Fuentes, known white supremacist?
A full-throated denunciation of racism and bigotry? Not from the Republicans, afraid of their leader, Trump, who has since threatened to terminate the Constitution.
Higher ed is already bracing for the court’s decision on affirmative action.
This will be yet another case to fear from the predominantly conservative court that threatens what diversity means in America.
Emil Guillermo is a journalist and commentator. His work appears on the website of the Asian American Legal Defense and Education Fund and on amok.com