Neglecting LGBTQ Status as a Protected Identity: The Result of Politicized Courts

Sexual Orientation is Endangered by the Courts

In September 2016, Petitioner Lorie Smith, the owner of a website design business 303 Creative LLC, desired to expand her services to offer wedding websites; however, due to her religious beliefs, she wanted to advertise her refusal to create any content that surrounded the idea of same-sex marriage [1]. As a result, Smith filed an injunction against the Colorado Civil Rights Commission in fear that her business policies would violate the Colorado Anti-Discrimination Act (CADA). CADA is a Colorado state law that prohibits public accommodations, including “almost every public-facing business in the State” from denying services to individuals on the basis of “race, creed, disability, sexual orientation, or other statutorily enumerated trait.”[2]

In the end, the Supreme Court decided that the CADA violated the Free Speech Clause of the First Amendment. In a 6-3 decision, the Court released an opinion in June 2023 deeming that any public accommodation law may not make individuals feel inclined to produce content that they disagree with [3].

303 Creative LLC v. Elenis, along with other landmark cases, is a model illustration of the Court’s deep confusion between protected speech and constitutionally forbidden actions. The Court continues to uphold the First Amendment under the conditions of incessant, institutionalized debasement of key Fourteenth Amendment protections. American courts have facilitated substantial degradation of LGBTQ rights through their failure to acknowledge sexual orientation as identity. This failure to acknowledge sexual orientation as a foundational protection is motivated by a court that is politically motivated to threaten LGBTQ rights.

What about the First Amendment?

The First Amendment is a fortifying feature of the nation and should therefore still be a strongly protected civil liberty; though, to what extent can an individual enforce their First Amendment freedoms before severely inflicting upon the liberties of others? The Supreme Court continues to uphold rulings that prioritize First Amendment liberties, such as free exercise and freedom of speech, but neglects the inequities that these decisions entail.

303 Creative LLC is not the first case to utilize the First Amendment as a justification for the weakening of state public accommodations laws that protect the LGBTQ community. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission was a 2017 Supreme Court Case between cakeshop owner Jack Phillips and gay couple Charlie Craig and David Mullins [4]. Craig and Mullins sued Phillips after refusing to bake a nondescript wedding cake for the couple due to religious reservations. As a result, the lower courts ruled that Mullin’s refusal to provide certain services to the couple violated the CADA, which was affirmed by the Colorado Civil Rights Commission (CCRC) [5]. Ultimately, the Supreme Court decided that the ruling of the CCRC "showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection.”[6]

To many Americans, this decision, along with that of 303 Creative LLC, appeared rather straightforward: Under the free American market and the First Amendment, business owners should not have the obligation to produce materials that relate to ideas that they do not endorse [7]. Therefore, many believe that cases such as Masterpiece and 303 Creative LLC are not politically motivated, but rather a representation of the Court’s strictly scrutinized interpretation of the Constitution and the profound protections that the First Amendment affords. Nevertheless, the Court’s interpretation of which individuals should be included within the inalienable protections of the Fourteenth Amendment are still skewed and abandon the development of necessary precedent that have historically institutionalized the rights of groups of other identities. In other words, the Court's prioritization of freedom of speech and religion over the Fourteenth Amendment in these scenarios is unjustly arbitrary and unfairly distributes the vital protections of the Equal Protection Clause.

Justice Sotomayor, in her dissenting opinion to the 303 Creative LLC decision discusses the importance of this precedent by comparing the newly established uncertainty of access to public accommodations for members of the LGBTQ community with the experiences of Black people during the Segregation Era [8]. Sotomayor affirms that, before racial integration, Jackie Robinson’s most intense struggle was “was not an inability to find some hotel that would have him; it was the indignity of not being allowed to stay in the same hotel as his white teammates.”[9] Similarly, if a Black, heterosexual couple asked Lorie Smith to design a wedding website, or Jack Phillips to bake a wedding cake, would the Court have ruled differently? In these scenarios, the sole difference between the Black couple are characteristics of identity yet, still, the precedent of the Court, which has so strongly upheld the precedent of the anti-discrimination of race, would have likely ruled that First Amendment religious or reservations on the basis do not justify consumer discrimination.

The fact is, this period in time is an opportunity for the Court to develop precedent in an ever-changing country that increasingly values the sentiment that sexual orientation is a valid, often unalterable part of one’s identity. The World Psychiatric Association reports that, “There is no sound scientific evidence that innate sexual orientation can be changed.”[10] Furthermore, almost 7.2 percent of the US population identifies as “something other than straight or heterosexual,” making these decisions alarmingly negligent of such a substantial portion of the American people [11]. Phillips’s and Smith’s exercise of the First Amendment were motivated against the identity of these individuals, not a voluntary ideology. Therefore, the Fourteenth Amendment should protect the respondents, just as the Amendment would protect individuals from discrimination based on an attribute that is more institutionally considered as an identity trait, such as race or gender.

A Reversal of the Times

The reversal of laws that were previously established as monumental, but fundamental civil rights precedents are no stranger to the modern political climate. Many Americans report being fearful of the times due to one of the government’s most defining characteristics: the rising politicization of the Supreme Court. In August 2020, seventy percent of Americans viewed the Supreme Court as favorable; however this number drastically diminished to a mere forty-eight percent by August 2022 immediately after several claims of a politicized Court that strategically revoked federal abortion protections [12]. In addition to establishing this distrust, the effect of politics in the Courts continues to evolve as a prodigious hazard to LGBTQ liberties.

Dobbs v. Jackson Women’s Health Organization, the case that overturned the precedent that guaranteed national protections for the right to an abortion, has been one of the most notable recent examples of how the politicization of the Court can lead to decisions that were engineered by political intentions of the executive branch [13]. Former President Donald Trump, appointing three Supreme Court Justices, held litmus tests to ensure that all of his nominees were “pro-gun” and would overturn Roe v. Wade “automatically.” When advised to abandon these litmus tests, Trump insisted, “I’m putting conservative people on [the Supreme Court].”[14]

The stacking of the Court with judges who have historically issued conservative opinions has not only affected abortion rights, but threatens the rights of groups marginalized by the right, such as the LGBTQ community. In his concurring opinion to Dobbs, Justice Clarence Thomas opines that the Fourteenth Amendment “does not secure any substantive rights,” suggesting the reconsideration of court cases that derived any right from the Fourteenth Amendment that is separate from due process [15]. Specifically, Thomas calls for the reconsideration of Griswold v. Connecticut, Lawrence v. Texas, and Obergefell v. Hodges. While Lawrence and Obergefell offer monumental protections for sexual and marital rights for the LGBTQ community, Thomas fails to call for the reconsideration of Loving v. Virginia [16]. Loving established the protection of all interracial marriages and was justified by the same “substantive due process” that Thomas opposes [17]. Many legal critics agree that the decision to omit Loving from his opinion to reconsider precedent was intentional due to the fact that Thomas has been in an interracial marriage himself for thirty-six years [18].

With both the former President’s permanent damage to conservatively ideologize the Supreme Court and the inherent political motivations of Justices to cherry-pick anti-LGBTQ cases, the new, unprecedented political landscape of the Supreme Court aims to use politics as a proxy for judicial reversal of fundamental LGBTQ rights.

State-Level Judicial Advocacy

Below the level of the Supreme Court, there are hundreds of state-level cases that aim to reinforce this national movement of judicial advocacy against LGBTQ rights. PFLAG v. Abbott is a pending lawsuit filed by PLAG, a nationally-renowned LGBTQ advocacy organization, against Governor Greg Abbot, who issued a directive declaring gender-affirming healthcare treatment to minors as “child abuse.”[19] While the Travis County District Court issued a temporary injunction to prevent PFLAG’s transgender members and clients from being subject to investigation by child protective services, the state continues its battle to appeal the injunctions and win the case to criminalize gender-affirming care for minors in Texas officially.

Motivations for states to invest so many resources into anti-LGBTQ policy initiatives and lawsuits are purely political. According to federal surveys, only 1.42 percent of children aged 13-17 in Texas identified as transgender in 2022 [20]. Meanwhile, other issues concerning children are left completely abandoned; the literacy rate in Texas, at a mere 71.8 percent, is the second lowest in the country behind New Mexico [21]. As the Republican party tends to use easily understandable, controversial, and highly emotional hot-button issues to advance their presence, these court cases are mechanisms of statewide conservative political expression and influence.

Small Steps toward Big Change

A major transformation in precedent is essential for not only the Courts, but the entirety of the federal government, to overcome its politicized view of the LGBTQ community and finally recognize sexual orientation as an objective attribute to one’s identity [22]. It is outstanding that non-heterosexual individuals are finally receiving social acceptance for their identities that they had to previously repress. Our Constitution is purposefully malleable to the times defined by the people. Just as people of color tirelessly fought for their recognition in the eyes of the Constitution, further strides for institutional reform are necessary for the LGBTQ community; nonetheless, is this dream achievable with the modern political climate that infiltrates Courts around the nation?

No person should have to be uncertain to freely purchase certain services in fear that their identity will be immediately confronted with hostility. In America, consumerism is power — if one of the major restrictive factors is an attribute as broad as identity, the idea of American democracy is inherently hypocritical.

Bibliography

1. “303 Creative LLC v. Elenis | League of Women Voters,” accessed October 23, 2023, https://www.lwv.org/legal-center/303-creative-llc-v-elenis.

2. 303 Creative LLC v. Elenis, 600 U. S. ___ (2023)

3. 600 U. S. ___ (2023)

4. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 584 U. S. ___ (2018)

5. 584 U. S. ___ (2018)

6. Ibid.

7. “Half-Baked? The Supreme Court Decision on Masterpiece Cakeshop - Freedom Forum,” accessed October 12, 2023, https://www.freedomforum.org/half-baked-the-supreme-court-decision-on-masterpiece-cakeshop/.

8. 600 U. S. ___ (2023)

9. Ibid.

10. Dinesh Bhugra et al., “WPA Position Statement on Gender Identity and Same‐Sex Orientation, Attraction and Behaviours,” World Psychiatry 15, no. 3 (October 2016): 299–300, https://doi.org/10.1002/wps.20340.

11. Jeffrey Jones, “What Percentage of Americans Are LGBT?,” Gallup.com, March 3, 2022, https://news.gallup.com/poll/332522/percentage-americans-lgbt.aspx.

12. Reem Nadeem, “Positive Views of Supreme Court Decline Sharply Following Abortion Ruling,” Pew Research Center - U.S. Politics & Policy (blog), September 1, 2022, https://www.pewresearch.org/politics/2022/09/01/positive-views-of-supreme-court-decline-sharply-following-abortion-ruling/.

13. Dobbs v. Jackson Women’s Health Organization, 597 U. S. ___ (2022)

14. Barbara Sprunt, “Trump Downplays Roe v. Wade Litmus Test As He Considers A Supreme Court Nominee,” NPR, July 1, 2018, sec. Politics, https://www.npr.org/2018/07/01/625100343/trump-downplays-roe-v-wade-litmus-test-as-he-considers-a-supreme-court-nominee.

15. 597 U. S. ___ (2022)

16. Quint Forgey and Josh Gerstein, “Justice Thomas: SCOTUS ‘Should Reconsider’ Contraception, Same-Sex Marriage Rulings,” POLITICO, June 24, 2022, https://www.politico.com/news/2022/06/24/thomas-constitutional-rights-00042256.; Lawrence v. Texas, 539 U. S. 558 (2003); Obergefell v. Hodges, 576 U. S. 644 (2015)

17. Loving v. Virginia, 388 U. S. 1 (1967)

18. Forgey and Gerstein, “Justice Thomas.”

19. “PFLAG v. Abbott | American Civil Liberties Union,” accessed October 12, 2023, https://www.aclu.org/cases/pflag-v-abbot

20. “How Many Transgender People Are There in Texas? One Study Has a Good Guess,” Dallas News, June 10, 2022, https://www.dallasnews.com/news/2022/06/10/estimates-of-trans-youth-in-texas-doubles-study-shows/.

21. “Literacy Rate by State 2023,” Wisevoter, accessed October 9, 2023, https://wisevoter.com/state-rankings/literacy-rate-by-state/.

22. Brown v. Board of Education, 347 U. S. 483 (1954)