The United States Supreme Court just told certain business owners that they have the right to discriminate against people they disagree with, based on the way they think, love and act.
This decision comes at a time when LGBTQI+ discrimination is on the rise throughout the country, in schools, healthcare institutions and workplaces. While it only applies to a narrow group of businesses, the Supreme Court’s decision in 303 Creative is a monumental step backwards in the fight for LGBTQI+ rights. In the face of this threat to progress, Congress must take action and pass greater anti-discrimination protections through the Equality Act.
This decision affirmed that 303 Creative business owner Lorie Smith cannot be compelled to create customizable wedding websites for LGBTQI+ couples because doing so would violate her right to free speech. Going forward, business owners offering original, expressive services are free to discriminate against LGBTQI+ and other marginalized groups. This is a devastating blow to the fight for equal rights and is sure to galvanize existing anti-LGBTQI+ groups who aim to challenge the rights and freedoms of LGBTQI+ people nationwide.
The extremist majority in this case is out of touch with the American people and goes against widespread public opinion that opposes the discrimination of LGBTQI+ people. Over 70 percent of Americans do not believe that businesses should have the right to discriminate against LGBTQI+ people based on religious beliefs. Despite that, more than one third of LGBTQI+ Americans faced some form of discrimination in the last year, in settings ranging from healthcare, employment, housing and public spaces.
Existing structural and cultural forms of discrimination create significant disadvantages for LGBTQI+ Americans as they attempt to move through society looking for equal treatment. Evidence shows that LGBTQI+ Americans’ mental health is significantly impacted when exposed to systemic and prolonged discrimination. Research from the Center for American Progress suggests that discriminatory experiences or fear of discrimination leads to avoidance behaviors like changing the way they dress, hiding a relationship, or avoiding a doctor’s office. Discrimination like that sanctioned by in the303 Creative decision could have drastic implications for marginalized communities attempting to participate in regular daily life, erasing their valuable inputs and experiences.
Only 22 states currently have laws that provide explicit protections against discrimination in public accommodations based on sexual orientation and gender identity. In her dissenting opinion, Justice Sonia Sotomayor affirms the importance of anti-discrimination protections in public accommodation laws, writing “a business that chooses to sell to the public assumes a duty to serve the public without unjust discrimination.” Not only does the 303 Creative decision erode anti-discrimination protections for LGBTQI+ people in public accommodations, it sets a dangerous precedent for the treatment other marginalized communities as well.
As a nonbinary, queer person dedicated to advocating for the rights of LGBTQI+ people, it is becoming increasingly worrying to have to navigate the various types of discrimination that are enacted against my community in this country. While we can organize and testify against harmful legislation, more has to be done to combat discrimination and the laws that permit it. Currently 22 states have no anti-discrimination protections in place related to public accommodation practices.
While it wouldn’t directly address the outcome of the 303 Creative decision, the recently reintroduced Equality Act would greatly expand civil rights protections for LGBTQI+ people to protect against discrimination. We cannot let this decision stymie the important work that needs to be done. Congress must pass the Equality Act and take the next critical step toward expanding civil rights protections for LGBTQI+ people.
In her dissenting opinion, Justice Sotomayor made clear that discrimination is not just about denying goods and services but fosters the “lingering embarrassment” that a person feels when they are denied equal participation. While this decision and the growing anti-LGBTQI+ movement intensifies that lingering embarrassment felt by millions across the country, the LGBTQI+ community remains resilient.
We will fight back. Congress should too.
J. Egler is a policy analyst for LGBTQI+ Policy at American Progress.