In the new term, which starts October 2022, SCOTUS will hear 303 Creative LLC v. Elenis. The question at issue is the following: “Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the first amendment.” This is a narrowing of the petitioner’s filing, which also asked the Court to consider “Whether a public-accommodation law that authorizes secular but not religious exemptions is generally applicable under Smith, and if so, whether this Court should overrule Smith.” It is odd that the Court elected only to hear this case as it relates to free speech and not freedom of religion, but I’ll opine on that a bit later. What I do want to turn to first is the second question that the Court will not hear — ostensibly.
In short, SCOTUS demurred hearing a challenge to Smith, which essentially held that “Although a State would be ‘prohibiting the free exercise [of religion]’ in violation of the Clause if it sought to ban the performance of (or abstention from) physical acts solely because of their religious motivation, the Clause does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons.” The petitioners (303 Creative LLC) basically wanted the Court to overrule Smith, thereby rendering states unable to enforce anti-discrimination laws because of religious objections. In other words, they wanted to legalize gay discrimination based on freedom of religion, but SCOTUS decided to answer another question: Discrimination based on freedom of speech. Why choose the less offensive route?
An excellent question to which I don’t have an answer, but I think the “why” is moot. Let’s face it. This is just a means to allow gay discrimination and legalize gay hate based on First Amendment rights. What Clause SCOTUS decides to use as the justification is irrelevant. Not only that, but the Court can really “answer” any question they want. Any idea when they last used the bait-and-switch tactic to deliver an opinion of the Court? You have three guesses, and the first two don’t count. I’ll help: It was the Dobbs case that overturned Roe. The original question the Court accepted when they took the case was the constitutionality of a 15-week ban imposed by Mississippi law — this is the question Roberts answered in his opinion on Dobbs. But once Barrett was placed on the Court, Mississippi asked the Court to change the question from a 15-week ban to overturning Roe. Naturally, SCOTUS obliged — this is the question the other five conservative justices answered in their Dobbs opinion. In short, they changed the rules in the middle of the game, which is their prerogative. I’ve written about this in a previous post. Petitioners before the Court can argue the A B C merits of a case, and the Court can rule on A B C or X Y Z or both. To be sure, the Dobbs decision was actually 5-1-3.
This 303 Creative LLC case is going to be the exact same thing. Freedom of speech is the front door attack on gay rights while freedom of religion will be the backdoor (additional question) attack, even though Smith suggests that a state can prohibit discrimination based on sexual orientation if the state has a compelling reason (e.g., public-accommodation law). Guess who wrote the majority opinion for that case? Scalia — not exactly your liberal justice. But fear not. This SCOTUS has no issues with undoing precedent; in fact, they just ignored another Scalia opinion when they ruled against New York in the New York State Rifle & Pistol Association Inc. v. Bruen case. In the Heller case (2008), Scalia wrote that states have a right to regulate guns and that the Second Amendment was not unlimited. Well, this SCOTUS basically said f*** that! So, do not think this uber-conservative supermajority has any reservations about deciding whatever they want on any matter they want while ignoring every previous ruling of the Court — even by their own conservative predecessors.
As a layman, I don’t need to try applying any sense of legal reasoning to draw my conclusions of what SCOTUS will do because, like they, I start with the end result in mind. They want to legalize gay discrimination in the name of First Amendment protections. That is their goal. Then they merely fill in the blanks with whatever reasoning and arguments they want to “justify” the final decision, which had already been cast before the case was accepted. Of course, there is absolutely no recourse because they are literally the final word on the Constitution. ¯\_(ツ)_/¯
Mark my words, morons. This SCOTUS is hell-bent on making gays second-class citizens, and they will do it because no one cares. I’m telling you, idiots. These conservative justices are going to find a First Amendment right to discriminate against the LGBTQ community. Of course, such a right can only ever be confined to the gays because they’ll never find a right to discriminate against any other group with immutable characteristics, which is generally the test for such cases. Oh, no. The gays will be relegated to second-class citizenship status, right next to women. This is just the beginning. Welcome to stupid America!