Episode 2 Transcript & Show Notes

Hello everybody, welcome to Queerdo’s second episode. This one is an emergency episode because we have some breaking news. And it is not good.

Title of today’s episode is “How many expressive ways can the Court say screw you?” because that is exactly what the Supreme Court’s conservative justices said to queer people everywhere in their 303 Creative vs. Elenis opinion.

Alright queerdos, buckle in – here’s our news.

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On the very last day of pride month, the Supreme Court ruled 6-3 to allow businesses more leeway in discriminating against queer customers.

The case, 303 Creative vs Elenis, arose out of Colorado website designer Lorie Smith’s concerns over making wedding websites for same-sex couples. Of note, Smith had not yet started making wedding websites AND THUS had not actually been asked to make one for a gay couple. She said a gay couple had inquired, but in some breaking reporting, it turns out that that couple was made up!!

Usually court cases require such a thing, called an injury, to bring a case. Also of note, Smith wants not only to be able to refuse service, but to be able to put a “no gays allowed” note on her website.

Colorado’s public accommodation law, which many states have, says that businesses cannot deny customers the full and equal enjoyment of their goods or services based on protected traits like race or sexual orientation.

Justice Gorsuch, in his majority opinion, ruled such laws are a violation of creative services’ 1st Amendment expressive rights. He wrote, “In saying this much, we do not question the vital role public accommodations laws play in realizing the civil rights of all Americans. This Court has recognized that governments in this country have a 'compelling interest' in eliminating discrimination in places of public accommodation. ... At the same time, this Court has also recognized that no public accommodations law is immune from the demands of the Constitution.”

In a fiery dissent that is worth reading, Justice Sotomayor 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.” She continued, “Around the country, there has been a backlash to the movement for liberty and equality for gender and sexual minorities. New forms of inclusion have been met with reactionary exclusion. This is heartbreaking. Sadly, it is also familiar. When the civil rights and women’s rights movements sought equality in public life, some public establishments refused. Some even claimed, based on sincere religious beliefs, constitutional

rights to discriminate.”

So what does this opinion mean going forward?

It means any business offering a creative or expressive service can refuse queer customers, Black customers, immigrant customers, you name it! I want to stress this – there is no limiting principle here. If you’re looking to get photos done, a cake made, a DJ, what have you, they can deny you even based on things like race. And they can put a sign on their business or website saying as much.

Now, while the discrimination limit does not exist in this ruling, we can expect lawsuits over the next few years that will force the Court to define when, where, and against who these businesses can discriminate.

But a lot of harm can be done in a few years. People will be turned away and stigmatized, in a time where the queer and many other minority communities face increased hate and marginalization. This is not just a case of “take your business elsewhere.” This is walking down a street and seeing signs saying people like you are not welcome. This is enabling and emboldening bigotry. For people who live in rural areas or small towns, this could mean people have no local options for these creative services.

In her dissent, Justice Sotomayor brought up Jackie Robinson as an illustration of this point. She said the issue wasn’t that he couldn’t find ANY hotel that would allow black people – it’s the degradation of not being able to stay in the same hotel as his white teammates.

It is the act of being turned away that causes the harm here. That harm stays with you, even if you find a baker or a photographer elsewhere.

This is bad news. But here at Queerdo, one of our guiding principles is to highlight the agency and power of the queer community. So, we’re not ending on despair. What can be done?

As was mentioned in our previous episode, Congress has reintroduced the Equality Act. This act would grant LGBTQ people additional legal protections under the Civil Rights Act. Although it might not undo all the harm of this 303 Creative ruling, it would extend crucial protections against further discrimination.

There are many good LGBTQ legal groups, like Lambda Legal, who have announced they will be fighting this decision. Such groups are always in need of volunteers and donations.

And, speaking of money, consider spending a little more of it – at queer-owned businesses! If you need a non-exhaustive list, check out the National LGBT Chamber of Commerce’s website – I’ll link it in the show notes.

Alright Queerdos, that is a wrap for our very first emergency episode. It was heavy, emotional stuff today. It seems like times are getting tougher every day. But know the queer community is strong, resilient, and most importantly, we’re fighters that show up for each other. So if you’re feeling down, reach out! Local LGBT organizations can connect you with your community or with resources if you’re struggling. And check in on your friends too.

With that, we will catch you back here next time.

Stay gay, everybody.