Saturday, December 10, 2022
A restaurant in Richmond last week canceled a reservation for a private event being held by a conservative Christian organization, citing the group’s opposition to same-sex marriage and abortion rights.
“We have always refused service to anyone for making our staff uncomfortable or unsafe and this was the driving force behind our decision,” read an Instagram post from Metzger Bar and Butchery, a German-influenced restaurant in the Union Hill neighborhood whose kitchen is helmed by co-owner Brittanny Anderson, a veteran of TV cooking shows including “Top Chef” and “Chopped.” “Many of our staff are women and/or members of the LGBTQ+ community. All of our staff are people with rights who deserve dignity and a safe work environment. We respect our staff’s established rights as humans and strive to create a work environment where they can do their jobs with dignity, comfort and safety.”
The group, the Family Foundation, was set to host a dessert reception for supporters on Nov. 30, the group’s president, Victoria Cobb, wrote in a blog post describing the incident. About an hour and a half before it was slated to start, one of the restaurant’s owners called to cancel it, she wrote. . . . “Sure enough, an employee looked up our organization, and their wait staff refused to serve us.”
The Family Foundation is based in Richmond and advocates for “policies based on biblical principles.” It has lobbied against same-sex marriage and abortion rights.
In her blog post, Cobb likened the restaurant’s move to establishments that refused to serve Black customers in the 1950s and ’60s, and she decried what she called a “double standard” by liberals . . . .
Legal experts say neither of those are apt analogies. While it’s illegal to discriminate against someone because of their race or religion, the restaurant’s refusal had to do with the group’s actions, said Elizabeth Sepper, a professor at the University of Texas. “It’s about the overall positions and policies the group has taken — it’s not about Christian vs. non-Christian,” she said.
Restaurants have made news for taking issue with their patrons’ politics. Sarah Sanders, then the White House press secretary and now the governor-elect of Arkansas, was asked to leave the Red Hen in Lexington, Va., in 2018. The owner of the restaurant, Stephanie Wilkinson, wrote that she thought Sanders was “a person whose actions in the service of our country we felt violated basic standards of humanity.” And a judge in 2018 sided with a New York bar that ejected a customer for wearing a “Make America Great Again” hat in support of President Donald Trump.
If past is prologue, Metzger’s move — which was first reported by Virginia Business — is likely to bring it both criticism and support. Wilkinson described the aftermath of the incident with Sanders — which made headlines around the world — as intense. Her phone lines were hacked, she and her staff had private information about them posted online, and many of them received death threats.
The restaurant and the foundation used interest in the event to fundraise. Metzger on Saturday posted an image of a bourbon-based cocktail dubbed “Cracks in the Foundation” and said it would donate the profits from its sale to Equality Virginia, a group that advocates for LGBTQ rights. “We are so grateful to our many guests and neighbors for their support the past few days!” read the Instagram post. “To say thank you we are donating all proceeds from this cocktail to @equalityva tonight!”
In the years I have writing this blog I have received numerous death threats - which is why I moderate comments - ALL of which have come from "godly Christians."
Friday, December 09, 2022
On Tuesday, a suspect accused of fatally shooting five people at a Colorado Springs queer nightclub in November was charged with hate crimes, assault, and murder. Elsewhere, armed protesters have been intimidating drag performers. And meanwhile, some states have banned gender-affirming health care and LGBTQ-inclusive instruction in public schools. Chase Strangio, an ACLU lawyer who has written for The Atlantic, argues that the LGBTQ community is under threat in part because of broader antidemocratic currents.
There has been deeply embedded structural discrimination and violence against LGBTQ people for centuries in the United States and around the world. So while it’s not new, I think that what we’re seeing right now is a sort of escalation in the types of rhetoric targeting LGBTQ people coming from both public and private actors, which of course results in the escalation of extralegal discrimination and violence.
What’s driving this escalation? Why now? . . . . I think it’s a combination of things. Part of it is a backlash to the increased visibility of LGBTQ people, as well as increased informal legal protection gained through Supreme Court wins in marriage and the Title VII cases. When you have a dynamic of people gaining more access to supportive public discourse, more legal protections, and increased visibility in popular culture and media, there’s a dynamic of more people feeling like they can live as themselves.
In addition to the backlash against those successes in visibility, we’re seeing a resurgence of far-right politics around the world and in the United States—a rise in far-right governments and far-right nongovernmental actors. And a feature of far-right government is a sort of fixation on the control of family and sexuality. If you look globally, you can see that anti-LGBTQ rhetoric rises with the rise in fascism. . . . That’s why we’re seeing this historical moment of anti-LGBTQ backlash in the same places where we’re seeing those types of governments rising around the world.
It’s all so inextricably connected, all part of a desire to control and restrict people’s sense of possibility and freedom. You can look at something like [the conservative activist] Christopher Rufo’s campaign against what he calls “critical race theory” and related efforts to restrict historically accurate teaching in public schools, and see how that quickly morphed into the same individuals targeting drag performance, trans health care, and the mention of LGBTQ people in schools.
All of this can be understood in two fundamental ways. One is the simple political opportunism of trying to [mobilize] voters in the lead-up to the next presidential election by stoking a sense of fear, of unfamiliar change. The second is exactly what I mentioned: The more you can control people’s sense of possibility, of expansiveness and freedom, the more that governments can expand their authority over people’s lives in general. I think we’re seeing those things in dynamic interaction at this moment.
The history of policing gender and criminalizing cross-dressing was always targeted at trans people, but it was also targeted at drag performance. We have a long history of criminal cross-dressing laws, and drag performers [have been arrested in the past]. If what you really want is to target queerness and transness, then drag is a huge part of that. It's a visible celebration of culture.
That has been combined with the fear and outrage being pushed from far-right media outlets, which have capitalized on the historical tradition of calling LGBTQ people “groomers” and saying that we pose a threat to children to create this moment where we’re seeing threats on children’s hospitals, attacks on drag performance, and so on. This is unfortunately part of a long tradition of positioning queerness and transness as “criminal.”
On the one hand, we’ve made incredible forward progress. . . . . At the same time, targeted rhetorical and governmental attacks are increasing dramatically. And so we have a sense of progress, but it’s difficult to sit in it, because there’s such precarity in all that’s happening right now. The way in which anti-trans antagonism has become so commonplace that people feel comfortable with it, I think that is a really scary proposition as we move into the presidential-election lead-up—especially when you consider the rise of far-right governments in the U.S. and around the world.
I feel that, with more visibility in the ability to find our people, there will continue to be beautiful and flourishing community spaces. Unfortunately, I think we are also going to keep seeing really troubling and expansive assaults on those spaces, and on our communities.
It is an unsettling time to be LGBT in America even with the passage of the Respect Marriage Act by Congress. Too many Republicans are only too happy to use hate and fear to promote themselves.
Thursday, December 08, 2022
For those who do not know here history, Hartzler has an ugly anti-gay history: she hosted ex-gay torture advocates in her office next door to Rep. Ted Lieu, who had just introduced a bill to ban the practice. That same year she publicly pressured Amazon to resume selling books by the now-dead and discredited Joseph Nicolosi, the so-called father of ex-gay torture. Before being elected to Congress, Hartzler headed the Missouri Coalition to Protect Marriage, which in 2004 backed the successful campaign to install a statewide constitutional ban on same-sex marriage. Indeed, it is people like Hartzler who seek to force their hate based beliefs on all who are driving younger generations away from religion entirely. A piece in the Washington Post looks at today's vote. Here are excerpts:
The House on Thursday passed landmark legislation that would enshrine marriage equality in federal law, granting protections to same-sex and interracial couples and clearing the way for President Biden’s signature.
“Today, Congress sends the Respect for Marriage Act to the president’s desk, a glorious triumph of love and freedom,” said House Speaker Nancy Pelosi (D-Calif.), quoting the gay rights activist Edith Windsor in comparing marriage to magic. “This legislation honors that magic, protecting it from bigoted extremism, defending the inviolability of the same-sex and interracial marriages.”
In a 258-169 vote, the House on Thursday passed the bill with the amendment, which clarifies that the federal government would not be authorized to recognize polygamous marriages and confirms that nonprofit religious organizations would not be required to provide “any services, facilities, or goods for the solemnization or celebration of a marriage.” Thirty-nine Republicans joined all Democrats in supporting the measure.
At a bill enrollment ceremony after the vote, members of the House and Senate celebrated as Pelosi (D-Calif.) and Senate Majority Leader Charles E. Schumer (D-N.Y.) signed and formalized the bill’s passage.
“We can put to rest the worries of millions of loving couples who are concerned that someday an activist Supreme Court may take their rights and freedoms away,” said Sen. Tammy Baldwin (D-Wis.), the first openly gay person elected to the Senate. “We are giving these loving couples the certainty that their marriages are legal and that they will continue to have the same rights and responsibilities and benefits of every other married couple.”
Biden has signaled his support, saying that ensuring federal protections for marriage equality is among his legislative priorities in Congress’s lame-duck session.
“The House’s bipartisan passage of the Respect for Marriage Act — by a significant margin — will give peace of mind to millions of LGBTQI+ and interracial couples who are now guaranteed the rights and protections to which they and their children are entitled,” Biden said in a statement after the House passed the bill. He added that after the Supreme Court in June ended the right to abortion after nearly 50 years, “Congress has restored a measure of security to millions of marriages and families. They have also provided hope and dignity to millions of young people across this country who can grow up knowing that their government will recognize and respect the families they build.”
Republican support for former president Donald Trump is declining. Even his popularity among evangelicals has faded — not because they have discovered his abysmal character or lack of reverence for the Constitution, but because they fear he might not be a winning candidate.
But Republicans have a significant problem for 2024, even if Trump is not the nominee and miraculously goes away quietly without instructing his minions to stay home on Election Day 2024: Their bench of alternatives is weak.
Trump’s principal challenger, Ron DeSantis, has less to offer than the pundits surmise. The Florida governor is the flavor of the moment, just as former Florida governor Jeb Bush and then-Wisconsin Gov. Scott Walker were in 2016. But like Bush and Walker, DeSantis has a dull affect, lacks a compelling message (What does “Stop woke Democrats!” actually mean?) and suffers from a dearth of national security experience.
His policy “victories” in Florida might be less than meets the eye. The New York Times reports, “Florida lawmakers are reportedly working to reverse a law stripping Disney of its special tax status in the state. . . . .
The Palm Beach Post editorial board also notes, “Gov. DeSantis successfully undermined efforts to protect Floridians against COVID-19, punished private business and public schools for encouraging racial and gender diversity, restricted voting rights and stripped African Americans of political representation.” That might work in increasingly ruby-red Florida, but if the GOP is looking for a viable general election candidate who can win over independents, DeSantis might not be their guy.
Put differently, the idea of a DeSantis candidacy might be more compelling than an actual DeSantis candidacy.
Beyond DeSantis, it’s downhill for the GOP. The once-promising Virginia Gov. Glenn Youngkin looks much less promising. The Associated Press reports: “Most of the midterm candidates Youngkin tried to help this fall were defeated. Major presidential donors, even those who support him, see the 55-year-old former private-equity chief as simply one in a crowded class of would-be Trump alternatives. And there’s concern that Youngkin has few resonant accomplishments to sell skeptical Republican primary voters.”
Others with less name recognition share DeSantis’s lack of base appeal. Former secretary of state Mike Pompeo lacks a national identity, personal charisma and a record of achievement. Former U.S. ambassador to the United Nations Nikki Haley never managed to decide if she would distance herself from Trump or remain a loyal soldier. She, too, lacks any discernible record or rationale for a presidential run.
Ted Cruz of Texas remains among the least likable senators. . . . . his polling numbers among GOP voters “can’t go down any further.” And former vice president Mike Pence might be the weakest of the alternatives, . . . .
Beyond that are the legion of former blue-state governors who might have had a chance in a pre-Trump, normal GOP
Republicans are reaping what they sowed in the Trump era: A base too extreme and too delusional to accept viable general election candidates; a bench of candidates tainted either by excessive loyalty to Trump or excessive independence (or in Pence’s case, both); and, most critically, a lack of any compelling message.
What do these people want to do, other than gain power? Railing at wokeness, bullying LGBTQ youths and demanding more tax breaks for billionaires don’t make for an attractive platform. (Remember, the party didn’t even bother putting together a platform in 2020, because the only thing it stood for was four more years of an unhinged narcissist.)
Perhaps DeSantis will get the nod by default. But Republicans will probably be chagrined when they discover he is not so much “sanctimonious,” as Trump sneered, but boring and devoid of a rationale for seeking the presidency.
Wednesday, December 07, 2022
Herschel Walker could be basking in his former glory, his many offenses against women, children, honesty and the English language neatly masked by the invisibility cloak of celebrity. . . . . Perhaps, to borrow a phrase, he got tired of winning, because today he is known for his humiliating campaign for U.S. Senate from Georgia. The debacle — which featured allegations of his abandoned children, terrorized mates, brandished firearms, fictionalized achievements and secret funding of girlfriends’ abortions — ended on Tuesday with Walker’s opponent, Sen. Raphael G. Warnock (D), reelected in a runoff.
Yet some 1.7 million Georgians voted for Walker, most likely many of those being evangelicals who make up the core of the cult of Trump. Like Trump, Walker should have been anathema to the values of true followers of Christ. Nonetheless, the evangelical loyalty to Walker and Trump underscores the abject moral bankruptcy of this segment of supposed Christians. Indeed, they make the Pharisees of the Bible often look virtuous in comparison - something totally lost on them (a case in point is Victoria Cobb of The Family Foundation who is screaming foul after having a restaurant refuse to accommodate members of her hate group). A column in the New York Times looks at the continued moral lapses of these self-annointed modern day Pharisees. Here are excerpts:
There have been encouraging signs lately of influential evangelicals inching away from Donald Trump.
The Washington Post last month quoted a self-pitying essay by Mike Evans, a former member of Trump’s evangelical advisory board, who wrote: “He used us to win the White House. We had to close our mouths and eyes when he said things that horrified us.” Religion News Service reported that David Lane, the leader of a group devoted to getting conservative Christian pastors into office, recently sent out an email criticizing Trump for subordinating his MAGA vision “to personal grievances and self-importance.” On Monday, Semafor quoted Bob Vander Plaats, a prominent Christian conservative activist in Iowa, saying that evangelicals weren’t sure that Trump could win.
Because I see the ex-president as a uniquely catastrophic figure — more likely to lose in 2024 than the current elite Republican favorite Ron DeSantis, but also more likely to destroy the country if he prevails — I’ve eagerly followed the fracturing of his evangelical support. But Russell Moore, the editor in chief of Christianity Today, told me he doesn’t yet take evangelical distancing from Trump seriously. After all, he pointed out, we’ve been in a similar place before.
Moore is the rare evangelical leader who has consistently opposed Trump, a stance that nearly cost him his former job as president of the Ethics & Religious Liberty Commission of the Southern Baptist Convention. (He left the Convention in 2021 over its handling of sexual abuse and white nationalism in the church.) Moore suspects that if the base of the Christian right, which over the last six years has forged a quasi-mystical connection with the profane ex-president, decides to stick with Trump, the qualms of their would-be leaders will evaporate.
What matters, then, are the sentiments of ordinary evangelicals. A recent survey by the Public Religion Research Institute found right-leaning white evangelical voters closely divided in their Republican primary preferences: 49 percent want Trump to be the nominee, while 50 percent want someone else. But Moore thinks most rank-and-file evangelicals aren’t focused on presidential politics yet, so it’s too soon to know which direction they’ll go.
The last six years, said Moore, has changed the character of conservative evangelicalism, making it at once more militant and more apocalyptic — in other words, more Trump-like.
“I see much more dismissal of Sermon on the Mount characteristics among some Christians than we would have seen before,” Moore said, referring to Jesus’ exhortation to turn the other cheek and love your enemies. There is instead, Moore said, “an idea of kindness as weakness.” Pastors have spoken to Moore about getting blowback from their congregants for preaching biblical ideas about mercy, with people saying, “That doesn’t work anymore, in a culture as hostile as this.”
Meanwhile, said Moore, some of those inspired by Jesus’ radical compassion are leaving the church. There have always been evangelicals who become disillusioned, said Moore, often because they “didn’t believe in the supernatural anymore, or couldn’t accept moral teachings of the church anymore.” But now, he said, “I find more and more young evangelicals who think the church itself is immoral.” Speaking of the new, pro-Trump recruits to evangelicalism, Moore said, “If the trade-off is getting more of them and losing some of the really best of our young people because they’re associating Jesus with this, that’s not a good trade.”
The trade, of course, is much like the one the Republican Party made in choosing to subordinate itself to Trump. Contrary to Evans’s lament, no one had to close his mouth and eyes. The Republicans chose to because they wanted power, and their critique now is largely about power lost.
I spoke to Moore before Trump called for the “termination” of the Constitution but after he’d dined with two of America’s most virulent antisemites. I asked if that meeting had been a turning point for any Christian Trump supporters. It’s landing, he said, only with “people who already had concerns about Trump.” The born-again Trump critics are mostly just worried about whether he can get elected, which is one reason he still can.
All they care about is power. Loyalty to the gospel message, not so much.
Tuesday, December 06, 2022
Of all the protected categories within non-discrimination laws, only one - religion - is a matter of choice. One cannot change one's country of birth, skin color, sexual orientation or gender, but as the surging number of "Nones" are proving, one can make a conscious decision to walk away from religion. Or one can change one's religious affiliation: I went from Catholic to Episcopalian to Luthern to "None." Yet the extremist majority of justices - which too many in the press wrongly continue to describe as "conservative" - on the U.S. Supreme Court appear poised to grant special rights and exemptions from non-discrimination laws to self-styled "Christians" who exhibit little Christ-like behavior and seek to use religion and "free speech" claims to discriminate against others. If the Court grants these people special rights, the consequences could be far reaching for many. One can only hope that as Christianity slides to minority religion status in America the day will one day come where these people get treated as they have mistreated others for centuries. A more near term hope is that such a ruling will further motivate the majority of Americans to further punish Republicans at the polls for having saddled the nation with a majority on the Court that has a mindset more akin to the ayatollahs in Tehran than that of the Founding Fathers. A piece at CNN looks at the ruling that may be forthcoming in the coming year. Here are excerpts:
At the Supreme Court, the conservative majority seems to have a new mantra that half way is no way.
From the beginning of oral arguments on Monday, it appeared the Supreme Court’s conservatives had come to the bench with their minds set. They sidestepped the lack of clear facts in the case, brushed off worst-case consequences and diminished past rulings that would seem to disfavor a Colorado website designer who has refused to serve same-sex couples.
Justice Samuel Alito was even prepared to invoke lines from Obergefell v. Hodges, the 2015 landmark that gave same-sex couples a right to marry, for the proposition that certain business owners can refuse gay couples.
He noted that the author of the opinion, the now-retired Justice Anthony Kennedy, had referred to “honorable” people who might object to same-sex marriage, and Alito suggested “religious objections to same-sex marriage” could be differentiated from other discrimination, for example, based on race.
Other justices on the right wing highlighted the expressive dimension of website designer Lorie Smith’s work, downplaying that she runs a commercial enterprise subject to the state’s public accommodation laws.
“You’re on your strongest ground,” Justice Amy Coney Barrett told Smith’s lawyer, Kristen Waggoner, “when you’re talking about her sitting down and designing and coming up with the graphics to customize them for the couple.”
Conservative justices seemed unpersuaded by the fact that, as liberal Justice Sonia Sotomayor pointed out, if they rule for Smith, “this would be the first time in the court’s history that it would say … a commercial business open to the public, serving the public, could refuse to serve a customer based on race, sex, religion or sexual orientation.”
The right-wing majority that coalesced with former President Donald Trump’s three appointments has shown a single-minded focus to transform certain areas of the law, notably those that touch on religious liberty.
Individual justices have made clear that they believe religion is under siege and that Christian views have been suppressed. They have ruled broadly, even when the facts of the case might suggest that believers have not been victimized.
Last session, the court by a 6-3 vote (the conservative majority against liberal dissenters) ruled in favor of a football coach who had been suspended by a Washington state public school district for praying at midfield after games.
The majority, in an opinion by Justice Neil Gorsuch, portrayed coach Joseph Kennedy’s conduct as modest and solitary, far from disruptive to players or people near the field. Dissenters contended the majority had misconstrued the facts of the case, ignoring how Kennedy’s behavior could affect students and breach the Constitution’s separation of church and state.
In the most consequential dispute of last session, over a Mississippi ban on abortions at 15 weeks of pregnancy, which carried some religious overtones, conservative justices went beyond the legal question presented to unflinchingly reverse a half century of precedent, striking down the 1973 Roe v. Wade case that first made abortion legal nationwide.
In Monday’s chapter, the justices took up whether website designer Smith has a free-speech right to create a wedding website for same-sex couples. The case lacks the factual record of the Masterpiece Cakeshop dispute because Smith is challenging the law before it has been used against her.
She is seeking an injunction to halt any enforcement for declining to create a website for any marriage that is not between a man and a woman. She said such an action would compromise her Christian beliefs.
Under questioning from liberal justices, Waggoner said that even a basic message announcing a gay marriage would put Smith in a difficult position.
“If you believe the wedding to be false, then the government would be compelling you to say something that you otherwise wouldn’t say,” Waggoner said.
Colorado Solicitor General Eric Olson, defending the state’s prohibition on discrimination based on sexual orientation urged the justices to avoid providing the Court’s “imprimatur” on a web designer who would “say no to same-sex people.”
“The Free Speech Clause exemption the company seeks here is sweeping because it would apply not just to sincerely held religious beliefs, like those of the company and its owner,” he said, “but also to all sorts of racist, sexist, and bigoted views.”
Olson tried to argue that the anti-bias law was not intended to stifle any free speech but rather to ensure that businesses do not discriminate based on the status of the customers. Most of the conservative justices remained skeptical.
Be very afraid of what these extremists will rule going forward in order to inflict their own beliefs on the nations.
Monday, December 05, 2022
Can an artist be compelled to create a website for an event she does not condone? That’s the question the Supreme Court has said it will take up on Monday, when it hears oral arguments in 303 Creative v. Elenis. The answer would seem to be obviously “no.”
But that’s the wrong question. The right question is whether someone who chooses to open a business to the public should have the right to turn away gay customers simply because the service she would provide them is “expressive” or “artistic.”
Should an architecture firm that believes Black families don’t deserve fancy homes be permitted to turn away Black clients because its work is “expressive”?
Can a florist shop whose owner objects to Christianity refuse to serve Christians?
The answer to these questions would seem to be, just as obviously, “no.”
So why is the first question the wrong one in this dispute? The case before the court was brought by 303 Creative, a business that says it wants to offer wedding website design services to the public, but doesn’t want to serve gay couples. Under Colorado’s “public accommodations law,” businesses that choose to serve the public at large cannot turn people away because of their race, sex, religion, sexual orientation or other protected characteristics. 303 Creative claims that because its service is expressive and its owner objects to same-sex marriage, it can’t be required to obey Colorado’s law.
If this sounds familiar, that’s because five years ago the Supreme Court considered a similar case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which a bakery asserted a free-expression right to turn away a gay couple that asked it to make a cake to celebrate their wedding. The court resolved that dispute on other grounds, so did not answer the question. Masterpiece Cakeshop’s lawyers are back before the court, making the same argument with a new client. (303 Creative has actually never made a wedding website for anyone, but it claims that it can’t even get started without a legal ruling that it can turn away gay couples.)
The A.C.L.U. has been this nation’s leading defender of free speech for more than a century. We firmly believe that states cannot compel artists or anyone else to express messages with which they disagree.
But we filed an amicus brief supporting Colorado in 303 Creative, and we defended the same law five years ago on behalf of the gay couple denied service by Masterpiece Cakeshop. We did so because Colorado’s law does not do what 303 Creative claims it does.
Public accommodations laws, which have been on the books since the 19th century, ensure that everyone has equal access to the public marketplace without regard to attributes historically marking them for second-class status. Those laws don’t trigger serious First Amendment concerns because they treat all businesses equally, whether they take corporate headshots or serve burgers and fries. The purpose of these laws is not to dictate the content of anyone’s speech, but to make sure that nobody is denied goods or services in commercial markets for discriminatory reasons.
Two features of the law make clear that Colorado’s law does not coerce artists to express a message with which they disagree.
First, no artist has to open a business to the public in the first place. . . . . the choice to benefit from the public marketplace comes with the legal obligation to equally serve members of the public. And requiring businesses that offer expressive services in the public marketplace to follow the same rules as all other businesses does not violate the First Amendment.
Second, even businesses open to the public are free to define the content of what they sell. A Christmas store can sell only Christmas items without running afoul of public accommodations laws. It need not stock Hanukkah candles or Kwanzaa cards. But it cannot put a sign on its doors saying, “We don’t serve Jews” or “No Blacks allowed.”
303 Creative argues that it is not turning away same-sex couples because they are gay, but because it objects to the message that making a wedding website for them would convey. The company has, however, asked the court to declare its right to refuse to make any website for a same-sex couple’s wedding, even if its content is identical to one it would design for a straight couple.
303 Creative has plenty of freedom to speak or not speak as it wishes. It need not serve the public and it need not design wedding websites featuring content it would not sell to anyone. But the First Amendment does not give it an exemption from laws requiring equal treatment of customers simply because its service is “expressive.”
Otherwise, interior decorators, landscape architects, tattoo parlors, sign painters and beauty salons, among countless other businesses whose services contains some expressive element, would all be free to hang out signs refusing to serve Muslims, women, the disabled, African Americans or any other group. The First Amendment protects the right to have and express bigoted views, but it doesn’t give businesses a license to discriminate.
Sunday, December 04, 2022
The Supreme Court on Monday will revisit a long-simmering tension between legal protections for LGBTQ people and the rights of business owners who oppose same-sex marriage. The case, 303 Creative v. Elenis, is a challenge by a Colorado website designer to a state law that bars businesses that are open to the public from discriminating against gay people or announcing their intent to do so. The designer, Lorie Smith, argues that subjecting her to the law would violate her right to free speech. Colorado counters that exempting Smith from the law would open a Pandora’s box that would “upend antidiscrimination law – and other laws too.”
The justices have already grappled with this question once. In 2018, the court handed a narrow victory to Jack Phillips, a Colorado baker who refused to make a custom cake for a same-sex couple because he believed that doing so would violate his religious beliefs. Justice Anthony Kennedy’s opinion rested largely on the majority’s conclusion that the Colorado administrative agency that ruled against Phillips treated him unfairly by being too hostile to his sincere religious beliefs. The opinion seemed to leave open the possibility that, in a future case, a service provider’s sincere religious beliefs might have to yield to the state’s interest in protecting the rights of same-sex couples, and the majority did not rule on one of the central arguments in the case – whether compelling Phillips to bake a cake for a same-sex couple would violate his right to freedom of speech.
Enter Lorie Smith, the owner of 303 Creative LLC, a designer of websites and graphics based in Littleton, Colorado. Smith is a devout Christian who believes that marriage “is only between one man and one woman.” So although Smith wants to expand her business to include wedding websites, she does not want to design websites for same-sex weddings, and she wants to post a message on her own website to make that clear.
In 2016, Smith went to federal court in Colorado, seeking a ruling that Colorado could not enforce its public-accommodations law, known as the Colorado Anti-Discrimination Act, against her because it would violate her First Amendment rights to free speech and free exercise of religion. When the U.S. Court of Appeals for the 10th Circuit rejected her arguments, Smith came to the Supreme Court. The justices agreed in February to take up her case – but only on the free speech question, not on the free exercise issue.
In the Supreme Court, Smith’s argument is straightforward: Applying CADA to her would violate the First Amendment because it would require her to create messages that are inconsistent with her religious beliefs, and it would bar her from announcing those beliefs on her website.
Smith points to the Supreme Court’s 1995 decision in Hurley v. Irish-American Gay, Lesbian & Bisexual Group, holding that Massachusetts could not require the private organizers of Boston’s St. Patrick’s Day parade to allow an LGBTQ group to march in the parade.
Under Hurley, Smith argues, courts must consider two questions: whether the service or good involved is speech or conduct; and whether the speaker’s message was affected by the speech it was required to accommodate. Both of those criteria are met in this case, Smith contends. The service at the center of the dispute is her design services, which are “pure speech,” and CADA requires her to change that speech “in untenable ways.”
Colorado makes an equally straightforward argument, albeit one that is diametrically opposed to Smith’s: CADA merely regulates sales, rather than the products or services being sold, and therefore does not require or bar any speech.
Public-accommodations laws like CADA, the state writes, follow “a common-law tradition that predates the Founding” and are intended to protect marginalized groups like LGBTQ people and racial minorities from discrimination in the marketplace. Such discrimination, the state explains, can create “wide-ranging” injury, from “the difficulties of finding a hotel while traveling” to “humiliation, frustration, and embarrassment” when a business refuses to serve someone.
CADA, the state stresses, does not require Smith to offer specific kinds of design services or bar her from including biblical quotes reflecting her view of marriage on any wedding websites that she might create. All that CADA requires, the state insists, is that Smith sell whatever products or services she decides to offer to anyone who wants to buy them.
The state points to Rumsfeld v. Forum for Academic and Institutional Rights, the Supreme Court’s 2006 decision holding that a federal law withholding some federal funding for colleges and universities that restricted the access of military recruiters to students did not violate the First Amendment. Just as in this case, the state argues, the court reasoned in FAIR that the law “regulates conduct, not speech” because it “affects what law schools must do – afford equal access to military recruiters – not what they may or may not say.”
Although the justices declined to review Smith’s claim that CADA violates her right to freely exercise her religion, both sides nonetheless argue that the court’s ruling will have a sweeping impact on religious rights. And numerous scholars and interest groups have weighed in on ramifications for disfavored populations.
Colorado counters that the exemptions that Smith and her supporters propose would “upend antidiscrimination law – and other laws too.” These exemptions would create “an enforcement regime riddled with uncertainty and inconsistency,” the state says, because Smith and her supporters offer “no meaningful standards” to determine what services are covered by an exemption. Allowing businesses an exemption based on the effect that a law would have on their message would, the state contends, allow businesses to opt out of public-accommodation laws for a wide variety of reasons, including racist, sexist, or anti-religious beliefs.
“Friend of the court” briefs supporting the state echo the state’s warnings. The carve-out from public-accommodation laws that Smith seeks, a brief by religious organizations cautions, “risks devastating consequences for all historically marginalized groups,” but particularly for religious minorities. A brief on behalf of LGBTQ service members notes that those service members and their families are often required to live in places where, without public-accommodations laws, they might be targets of discrimination that would strip away their access to important products and services.
The Supreme Court has changed substantially since it gave Phillips a narrow victory in 2018. Kennedy, the author of the ruling, retired that year and was replaced by the more conservative Justice Brett Kavanaugh. And perhaps most notably, in 2020 Justice Amy Coney Barrett succeeded the late Justice Ruth Bader Ginsburg, cementing a solid 6-3 conservative majority. The decision to take up Smith’s case, combined with the court’s recent rulings expanding religious liberties, suggests that Smith may be on the verge of securing the broader victory that Phillips sought four years ago.
The role of extremist white nationalists in the GOP may be approaching an inflection point.
The backlash against former President Donald Trump’s meeting with Nick Fuentes, an avowed racist, anti-Semite, and Christian nationalist, has compelled more Republican officeholders than at any point since the Charlottesville riot in 2017 to publicly condemn those extremist views.
Yet few GOP officials have criticized the former president personally—much less declared that Trump’s meeting with Fuentes and Ye, the rapper (formerly known as Kanye West) who has become a geyser of anti-Semitic bile, renders him unfit to serve as president again.
Even this distancing from Fuentes (if not Trump) comes as House GOP Leader Kevin McCarthy, the putative next speaker, is poised to restore prominent committee assignments for Representatives Marjorie Taylor Greene and Paul Gosar, two House Republicans who have publicly associated with Fuentes. It also comes as Republican officials, including McCarthy and Governor Ron DeSantis of Florida, are locking arms in support of Elon Musk’s push to allow extremist voices more access to Twitter.
Although it took days to develop, some believe the widespread Republican criticism of Trump’s meeting could signal a new determination to restore the barriers between mainstream conservatism and far-right Christian and white nationalism that eroded during the Trump era.
Elizabeth Neumann, a former assistant secretary at the Department of Homeland Security under Trump who focused on domestic extremism, told me she believes the backlash—however belated—combined with the GOP’s disappointing performance in last month’s midterm elections, could mark a turning point.
Yet others remain unconvinced that the GOP is ready to fundamentally break with Trump or ostracize the coalition’s overtly racist, homophobic, and anti-Semitic white supremacists and Christian nationalists. “I think what we are looking at is the entrenchment of extremism, and that’s what is so worrisome,” Jonathan Greenblatt, the CEO of the Anti-Defamation League, told me.
Michael Edison Hayden of the Southern Poverty Law Center’s Intelligence Project told me. If Musk opens the door to extremist organizing on Twitter, Hayden said, the white-nationalist presence in the GOP coalition will become “potentially irreversible in the short term.”
Other officials inside the GOP coalition have pushed through the boundaries Trump has weakened. Gosar and Greene both appeared at Fuentes’s America First Political Action Conference. So did Republican Arizona State Senator Wendy Rogers, who called the audience at one of the events “patriots,” and declared, “We need to build more gallows. If we try some of these high-level criminals, convict them, and use a newly built set of gallows, it’ll make an example of these traitors who have betrayed our country.”
The Republican-controlled Arizona State Senate censured Rogers this year for threatening her colleagues, but she was nevertheless fulsomely embraced by Kari Lake, the Republican nominee for Arizona governor this year. Other prominent GOP candidates, including Doug Mastriano in Pennsylvania, also associated with white and Christian nationalists or directly echoed themes from those movements this year.
McCarthy also promised Greene and other hard-line conservatives that he would authorize an investigation into the government’s prosecution and treatment of the January 6 insurrectionists, many of whom are extremists tied to white and Christian nationalism.
“After Trump’s rise, these barriers became softer and softer, and they really broke down in the aftermath of January 6 altogether,” Hayden said. “And now you have this kind of opening between the fringe world and the mainstream world in a way that is very difficult to separate.”
Musk has quickly become a major new factor in further razing those barriers between the far right and the conservative mainstream, restoring the Twitter accounts of figures banned for misinformation, promotion of violence, or intimidation—including Trump and Greene. Hayden said the Southern Poverty Law Center’s research shows that some previously banned white nationalists have already been restored to the site.
In a torrent of combative posts, Musk wrapped himself in the mantle of “free speech” to justify restoring accounts previously banned for violating the site’s standards. And he’s accused individuals and institutions that argue for drawing a line against extremist rhetoric of threatening the core American value of free expression. In Musk’s formulation, even the most noxious forms of hate speech can be justified as free speech, and any effort to combat divisive rhetoric is an un-American attempt at censorship or intimidation by the “woke” mob. . . . According to Musk’s logic, it’s a form of “tyranny” to oppose his amplification of authoritarian, racist, and neo-Nazi views antithetical to democracy.
The rush of GOP leaders such as McCarthy, DeSantis, and incoming House Judiciary Chairman Jim Jordan to support Musk as he works to restore more banned accounts shows how hard it will be for the GOP to completely divorce itself from white and Christian nationalism.
[O]nly about one in 11 Republicans expresses directly favorable views of white-nationalist groups such as the Proud Boys and Oath Keepers . . . . But a much larger slice of Republican partisans express views that might be called white-nationalist adjacent. In various polls, preponderant majorities of GOP voters have said that discrimination against white people is now as big a problem as bias against minorities, that Christianity in the U.S. is under assault, and that the growing number of immigrants threatens American values and traditions. About half of Republicans have expressed agreement in other polls with tenets of white nationalism, including the racist “replacement theory” . . . .
[T]he receptivity of so many Republican voters to arguments, even if less virulent, that overlap with those championed by white- and Christian-nationalist organizations may be a crucial reason for party leaders’ reluctance to confront Trump and others, like Greene, who have associated with such groups. Given the extent of such views inside the GOP coalition, Neumann said, Republicans feel no political incentive to reject the far right “other than out of the goodness of their heart and moral clarity. And apparently that wasn’t enough.”
Neumann, now the chief strategy officer of Moonshot, a company that combats online extremism, worries that organized far-right violence could still erupt if Trump ever faces a trial as a result of the various investigations targeting him. But she sees the possibility that the visibility and influence of the extreme right inside the GOP peaked with this fall’s converging events, especially the party’s disappointing election results.
For the short term future at least, expect more hate, bigorty and extremism to explode within the GOP base.