67. 303 Creative LLC v. Elenis

Snarky Opener (0:00)

Guess what. It is against my religion to deal with mediocre, straight people. So, can I start turning away the heteros?

Episode Introduction (0:26)

Hello, my LGBTQuties, and welcome back to another episode of A Jaded Gay.

I'm Rob Loveless and, today, I am a non-jaded gay because recently, this past weekend, I actually had a nice little beach day. You know, summer is flying by.

I can't believe we're already getting towards the end of it, and I haven't gone to the beach that much. So, I was really grateful that I was able to get together with some friends. We went down to Asbury.

It was a quick drive from Philly. Really nice beach day. Super fun, super gay there. Loved it. Definitely want to go back.

And just laying out in the sunshine, it just kind of helps me decompress and relax, which I definitely need to take more time where I can just kind of sit still, not do anything, not worry about anything, and just kind of enjoy the fresh air.

But that day is not today, because I am currently worrying about the Supreme Court's recent ruling.

303 Creative LLC v. Elenis (1:08)

That's right. Today we are talking about their recent decision that gives business owners the right to turn away and discriminate against LGBTQ+ people.

Now I know this is coming out at the beginning of August, so it may not seem super recent to you, but keep in mind, I record about a month in advance.

So, I put this show together shortly after the June 30 decision. But regardless, I think it's really important to fully understand this case, what's going on, and talk about the future impacts this can have on us.

But before we get into that heaviness, let's pull our tarot card.

Tarot (1:41)

So, the card for this episode is the Nine of Swords. Now Swords, I feel like we haven't pulled a Swords card recently.

Anyway, it's tied to the element of air, and it's symbolic of thoughts, ideas, and the words we speak.

It's masculine energy, which is very action-oriented, and it's associated with communication, guiding principles, and structure.

So, you can kind of think of think of phrases like the Sword of Truth and the pen is mightier than the sword when dealing with this card.

Now in numerology, the number nine is nearing completion of a full cycle. Remember, we go from zero to 10 or one to 10, depending on how you look at it.

So, when we're getting to nine, we're almost towards the end of that first full cycle. We're about to achieve something, finish something up, and then start something new.

And as we get close to finishing that cycle, we can feel a sense of solitude, but it can also lead to feeling lonely. So, when we draw this card, it's telling us we might be filled with anxiety and worry.

And the traditional depiction of this card shows a woman sitting upright in bed in a darkened room with her head in her hands while nine swords dangle over her.

And literally, that was me the other night. I was drifting off to sleep, and all of a sudden, boom, I like, lurched up in bed. My heart was racing. I don't even know why I woke up.

I must have had that feeling of falling, or I must have had a nightmare. I don't remember. I don't know, but literally, like, jumped up in bed. I was the Nine of Swords. Anyway, though, back to the card.

It's telling us that anxiety is preventing us from seeing the reality in front of us.

So, we might be having dark thoughts and disturbing feelings weighing upon us, and if we don't keep it in check, these fears may end up ruling our lives.

So much so that fear and worrying can actually become a self-fulfilling prophecy. So, we really need to examine our situation from a new perspective.

We need to pay attention to what is in our control and know when to ask for help from others. And we also need to pay attention to what's going right in our lives to help ground ourselves in reality.

And with that in mind, let's get right into it.

303 Creative LLC’s Backstory (3:28)

So, starting off. Lori Smith is a website designer in Colorado who runs 303 Creative LLC.

Previously, she had been selling website development services and wanted to move into making wedding announcement websites.

So, she wanted to post a notice on her business website to notify users of her unwillingness to create websites promoting same-sex marriages, and instead, would refer gay patrons to other potential designers who may provide services to them.

Wow, isn't that so thoughtful of her?

Anyway, according to the American Bar Association, Smith claims to serve any client, regardless of race, creed, sexual orientation, or gender, but she will not create content that contradicts her Christian beliefs.

So, she, and this is a quote, “will decline any request—no matter who makes it—to create content that contradicts the truths of the Bible, demeans or disparages someone, promotes atheism or gambling, endorses the taking of unborn life, incites violence, or promotes a concept of marriage that is not solely the union of one man and one woman.”

However, before she could post that message about her unwillingness to create websites for same-sex couples, she realized that posting that notice would violate the Colorado State anti-discrimination laws that were amended in 2008.

Now the first, the Accommodations Clause, prohibits businesses that sell or offer services to the public from discriminating based on disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.

And the second, the Communications Clause, prohibits businesses from displaying a notice that indicates that the full and equal enjoyment of the goods or services will be refused, withheld from, or denied an individual, or that an individual's patronage or presence at a place of public accommodation is unwelcome, objectionable, unacceptable, or undesirable based on a protected characteristic.

So, seven years ago, in 2016 she sued Colorado in the United States District Court for the District of Colorado, seeking to block enforcement of the anti-discrimination law in a pre-enforcement challenge.

And fun fact, Smith was represented by the Alliance Defending Freedom, which is a conservative Christian legal advocacy group that works to expand Christian practices within public schools and in government, outlaw abortion, and curtail the rights of LGBTQ+ people.

And they've been affiliated with former Vice President Mike Pence and Amy Coney Barrett. You know, the one who currently sits on the Supreme Court bench.

Anyway, the district court wanted to wait for the result of the 2018 Supreme Court case Masterpiece Cakeshop v. Colorado Civil Rights Commission. Now you're probably familiar with this case.

Masterpiece Cakeshop v. Colorado Civil Rights Commission (6:03)

So, in 2012, same-sex couple Charlie Craig and David Mullins from Colorado made plans to be lawfully married in Massachusetts and returned to Colorado to celebrate with their family and friends.

Now keep in mind, gay marriage wasn't legalized until June 2015 and the state constitution prohibited same-sex marriage in Colorado.

So, July 2012, Craig and Mullins visit Masterpiece Cakeshop in Lakewood, Colorado to request a wedding cake and are turned away because they're gay.

They filed a complaint to the Colorado Civil Rights Commission under the state's Public Accommodations law known as the Colorado Anti-Discrimination Act, which prohibits businesses open to the public from discriminating against their customers on the basis of race, religion, gender, or sexual orientation.

And this complaint resulted in a lawsuit, which eventually was decided in favor of Craig and Mullins. Masterpiece Cakeshop was ordered to provide cakes to same-sex marriages and to also change its company policies, provide comprehensive staff training regarding public accommodations discrimination, and provide quarterly reports for the next two years regarding steps it has taken to come into compliance and whether it has turned away any prospective customers.

The cake shop owner appealed the decision to the Court of Appeals with the aid of Alliance Defending Freedom. Funny how they just keep popping up there, right?

And refused to comply with the state's orders, instead opting to remove themselves from the wedding cake business.

However, the Supreme Court of Colorado declined to hear an appeal, so this went to the US Supreme Court.

And on June 4, 2018, they ordered a reversal of the decision made by the Colorado Civil Rights Commission.

The opinion stated that although a baker in his capacity as the owner of a business serving the public, might have his right to the free exercise of his religion limited by generally applicable laws, nevertheless, a state decision in an adjudication in which religious hostility on the part of the state itself is a factor, violates the state's obligation of religious neutrality.

So basically, Masterpiece Cakeshop was given the go-ahead to continue discriminating.

The Supreme Court’s Ruling (7:59)

Anyway, back to Lori Smith of 303 Creative LLC. So, in 2019, the district court accepted review of the pre-enforcement challenge but ruled against Smith and upheld the law's constitutionality in 2019.

Then Smith appealed to the United States Court of Appeals for the 10th Circuit, and they took up the pre-enforcement challenge and found that Smith had, and this is a quote, “sufficiently demonstrated both an intent to provide graphic and web design services to the public in a manner that exposes them to [Colorado Anti-Discrimination Act] liability and a credible threat that Colorado will prosecute them under that statute."

However, the 10th Circuit still ruled in favor of the state, two to one, but the majority ruling recognized Smith's pre-enforcement challenge that her First Amendment rights would be violated.

So, from there, Smith filed a petition, which was granted by the Supreme Court in February 2022.

And this case was limited to the question of whether Colorado's law violates the Free Speech Clause of the First Amendment. And oral hearings were heard on December 5, 2022.

So then on Friday, June 30, 2023, in a six-three vote, the Supreme Court sided with Smith and ruled that the First Amendment entitles her to refuse same-sex wedding work.

What a way to close out Pride. The conservative judges handed us this ruling and essentially said, Happy Pride Month, faggots.

And go ahead and guess where the Trump-appointed judges stood on this issue.

Anyway, Justice Neil Gorsuch wrote for the conservative majority and attempted to draw a distinction between discrimination based on a person's status, such as gender, race, and other classifications, compared to the discrimination based on Smith's message.

Here's a quote from him:

“The Nation's answer is tolerance, not coercion. The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands."

That's cute because I haven't really seen that much tolerance in the last eight years or so.

And funny enough, while Gorsuch is all about this tolerance, he also acknowledged that their ruling could result in misguided and even hurtful messages.

So, he recognizes the potential ramifications, but still says, yep, that's the way it is. Sucks to suck.

Also, while we're talking about tolerance, I thought it was worth mentioning that during the oral arguments for this case in December, Justice Samuel Alito, another conservative, joked about the Ku Klux Klan.

And here's a quote from him:

"So, if there's a Black Santa at the other end of the mall and he doesn't want to have his picture taken with a child who's dressed up in a Ku Klux Klan outfit, that Black Santa has to do that?"

"No, because Ku Klux Klan outfits are not protected characteristics under public accommodation laws."

"And presumably that would be the same Ku Klux Klan outfit regardless whether the child was Black or white or any other characteristic."

"You do see a lot of Black children in Ku Klux Klan outfits, right? All the time. Suppose it, I mean..."

Super-duper. Great way to equate LGBTQ+ people with a known hate group.

Meanwhile, in her dissenting opinion, Justice Sonia Sotomayor said:

“Time and again businesses and other commercial entities have claimed a constitutional right to discriminate, and time and again this court has courageously stood up to those claims. Until today. Today, this court shrinks. The lesson of the history of public accommodations laws is ... that in a free and democratic society, there can be no social castes. ... For the 'promise of freedom' is an empty one if the Government is 'powerless to assure that a dollar in the hands of one person will purchase the same thing as a dollar in the hands of another.'"

Potential Ramifications of 303 Creative LLC v. Elenis (11:30)

And obviously, there's a lot of emotions and opinions and things to say about this, but the biggest thing I want to say is people like to say, well, go to another bakery. Go to another web designer.

And yes, generally speaking, there may always be another business to shop at. But for me, it doesn't matter if there's another business because I grew up fearing that I was gay.

I grew up hearing homophobic remarks and thinking that gay was bad before I knew what it actually meant.

And there's still a lot of emotions from growing up gay that I'm working through, and I know I'm not alone in that.

So, if a business turns me away, while there may be another business to go to, that doesn't make up for the sense of rejection.

A business turning someone away only further contributes to that sense of otherness and that you're less than and an abomination and all those terrible things you hear when you're growing up gay.

I know we talk about this on almost every episode. A lot of us grapple with shame for growing up gay, and it's not just something you get over.

You have to continually work on it and make progress on it because it's always there, weighing on you. And the kicker is, it's not our shame we're feeling.

It's the shame of society that they placed upon us for thinking we're different. And despite all the work you can be doing on yourself, one little thing like this and boom, that scab is ripped off the wound.

And this is just talking about a cake or a website. Where are we going to go from here? What if this extends to life-saving services?

What if an EMT arrives at a scene and says, oh, sorry, I don't like gay people. It's against my religion to treat their life-threatening injuries. Call another ambulance.

And I know people will go, Well, that's an extreme example.

Bullshit. I don't want to hear it. Look at what's going on over the past eight years, and look what's continuing to go on every day. Like this is where we're at right now.

Straight People React (12:58)

And unfortunately, I wasn't surprised by this ruling. I mean, I was hoping for a different outcome, but I was preparing for this.

Given last year's overturning of Roe v Wade and then the week of this website bullshit, the ruling on affirmative action, I knew which way this Court was leaning.

But straight people seemed really surprised by this, and they shouldn't be, but they are.

You know, I've had friends say to me in the past, well, you know that older conservative generation is going to die off, and then things will be fine.

Well, guess what? That's not good enough for me. You're telling me I have to put my life, my rights, on pause and wait 20+ years for that generation to die off?

I need to wait till I'm 50 to have equal rights? Okay, cool.

And that's also assuming that you know this conservative wave isn't spreading across younger generations too.

But also, now look at this ruling that's putting the dominoes in place to set LGBTQ+ rights back by decades. Who knows where we're going to go from here?

This is why elections matter. This is why who's appointing Supreme Court justices matter, and also those shocked heteros shouldn't be so shocked, considering the state of the world.

According to a 2023 Gallup poll, 71% of Americans support marriage equality.

However, a Pew Research Center study, which was published just two weeks before the June 30 ruling, found that only 38% of respondents expressed support for LGBTQ customers and said business owners should have to provide services that may conflict with their views.

Additionally, Data for Progress found that only 65% of voters believe businesses should not be allowed to turn away customers who are of a particular sexual orientation because of the business owners' personal beliefs.

So those numbers don't really inspire much confidence in me for an equal future.

Is 303 Creative LLC v. Elenis a Made-Up Case? (14:34)

And the kicker is there's some legitimacy questions around Smith's initial lawsuit. In it, she referenced a request for a website from a man named Stewart and Mike, his husband-to-be.

In a February 2017 filing, Smith's lawyers maintained that she didn't have to be punished for violating Colorado law before challenging it.

However, they revealed that even though she did not need a request to pursue the case, she had, in fact, received one.

And included with this filing was a website request form submitted by Stewart on September 21, 2016, a few days after the lawsuit was filed. Convenient, yeah?

And this filing also included a February 1, 2017 affidavit from Smith stating that Stewart's request had been received.

Here's an excerpt from the Associated Press:

“Lawyers for Colorado wrote in their brief to the Supreme Court in August that it did not amount to an actual request for a website and the company did not take any steps to verify that a “genuine prospective customer submitted the form.” It’s not clear whether the state took any steps to verify whether Stewart — whose contact information was included in court papers — was a real potential customer.”

And here's the plot twist: Stewart claims he never submitted the request and didn't even know his name was invoked in the lawsuit until he was contacted the week of the June 30 ruling by a reporter from the New Republic, which first reported his denial.

And double plot twist: he's straight and married to a woman, or at least was married to a woman. I saw somewhere that he was married to a woman for 15 years.

Another article said that he was married to a woman at the time that the request was submitted, but regardless, straight.

Stewart also explained that he himself is a designer and is capable of designing his own website if he needed to.

Now, the request did contain his name, phone number, and address, but he didn't actually submit it.

So, Smith's case, which has a terrifying, profound impact on LGBTQ+ rights is referencing a website request from a gay couple that has legitimacy concerns. Cool, cool.

Smith's lawyer Kristen Waggoner denied this request was fabricated and suggested it could have been a troll making the request, but she said that detail is irrelevant to the case.

*She's like a clogged toilet with all fuckin' bullshit. Maybe she should get her fuckin' plumber to fuckin' clean it out.*

However, Colorado Attorney General Phil Weiser called the lawsuit a quote-unquote made-up case because Smith wasn't offering wedding website services when the suit was filed.

And Weiser also said the nation's high court should not have addressed the lawsuit's merits without any basis in reality.

Still, Smith's lawyers maintain that she did not have to be punished for violating the Colorado anti-discrimination law before challenging it. So just a whole lot of bullshit there.

The Future of Marriage Equality (17:10)

And like I said, we don't know what ramifications this may have for LGBTQ+ rights going forward, but understandably, a lot of people are concerned with what this can lead to.

And as of recording this, I saw that somewhere in Texas, and of course, it's Texas, they're trying to petition that they can now legally deny marriage licenses to gay couples because of the Supreme Court's recent ruling.

And as of recording this, I'm not sure where that stands now. But this also raises a question, what is the Supreme Court going to go after next? Gay marriage?

And remember back in February, in the episode on Obergefell v Hodges, we talked about how the 2022 Respect for Marriage Act doesn't codify Obergefell v Hodges.

Instead, it only forces states without marriage equality laws to recognize LGBTQ+ marriages from other states.

So, if Obergefell v. Hodges is overturned, the Respect for Marriage Act would not stop any states from once again refusing to issue marriage licenses to same-sex couples.

And legal experts aren't sure if there would be a way to reinstitute marriage equality nationally if the Supreme Court strikes it down.

Pass the Equality Act (18:11)

So, we need to stay vigilant. We can't just sit by and let this happen. Pay attention to what's going on in the news. We're unfortunately coming up on another presidential election, so let the anxiety begin.

But make sure you're registered to vote and do your research to see who you're voting for.

Because one orange Oompa Loompa was able to tip the scales of justice by appointing three extremely conservative judges. And look at the ramifications this is going to have for decades to come.

So, pay attention to who you're voting for, and make sure your friends and family are paying attention to who they're voting for.

Make sure they're aware of LGBTQ+ issues and how certain candidates are a threat to our life, liberty, and pursuit of happiness.

And if you haven't already, email your Senators urging them to pass the Equality Act, which can fully protect us from discrimination.

The ACLU has a page set up that makes it really easy to send an email to your Senators urging them to pass the Equality Act.

I did it back in February. It takes less than a minute. You just enter in your information, and it sends it directly to your state senator.

And I've included the link to this in the episode notes, so as soon as you're done listening to this do it, send your email, and encourage your friends and family to do the same.

Episode Closing (19:15)

And connecting this back to the tarot, you know, Nine of Swords indicating that there's a lot of fear, worry, and anxiety in our lives. And shocker. Are we surprised that there is?

But in all seriousness, while it's easy to get angry and emotional and fearful and maybe just even shut down, we can't do that. We really need to assess our situation in a new light.

When these things happen, it can really feel like we have no sense of control over our own lives, our own bodies, our own rights. But there are things we can do.

We can make sure that our friends and family are aware of the issues facing us and that they're voting for people who won't hurt us.

We can also, like I said, email our senators and urge them to pass the Equality Act. So, take the action you can to do this.

Yes, we may not be lawyers. We may not be sitting on the Supreme Court bench. We may not be able to actually make these rulings that affect us, but we can do our part to make sure our voices are heard.

And while we can't be complacent, we also need to be mindful of the good things that we do have in our lives.

And one way I do that is by thinking, you know what, whatever these rulings are, I'm still gay, I'm still here, I'm not going anywhere.

So, you can take away my rights, but I'm still going to be here, and I'm just going to get louder. And yes, it's really scary because it seems like there's threats to our equal rights, left and right.

But despite these threats, despite this noise coming from these super conservative, homophobic assholes, we're gay, we're queer, we're LGBTQ+, and we're not going anywhere.

They can throw their stones. They can try to pass whatever legislation they want, but it's not going to eradicate gay people. We have always been here, and we will always be here.

And that being said, we really need to be there for one another. We need to be there for our community. We need to support each other, whether that's a romantic partner, a friend, a family member, whoever.

And we really need to rely on our allies right now, and we need our allies to step up and start speaking up.

So, I know this is tough to talk about. I know a lot of people are probably feeling really emotional about this, myself included, but it's important that we talk about this, and I appreciate you listening to this as always, I'd also really encourage you to send this episode to your straight friends and family who may not be aware of what this case fully means for us.

Because again, just like the tarot said, we need to know when to ask for help, and the time for help is now.

Connect with A Jaded Gay (21:13)

So, thank you for listening. Share this with your straight friends and family. Any questions or feedback, feel free to reach out to me rob@ajadedgay.com.

You can also connect with the podcast on Instagram, TikTok, SoundCloud, and YouTube @ajadedgaypod. You can follow me personally, Rob Loveless, on Instagram @rob_loveless.

And remember, every day is all we have, so you got to make your own happiness.

Mmm-bye.