Is "Creative Expression” the New Strategy for “Christian” fundamentalists & SCOTUS to Heart Bigots?

Bigots are switching to “creative expression” instead of religion as the club they’ll use to beat down public accommodation laws.

Image by Victoria Model from Pixabay

The Supreme Court appears hell-bent on making America bigoted again. Step-by-step, they’re undoing every bit of progressive legislation from the past 80 years that they can find.

Now they’re going after the right of gays and lesbians who want to get married to shop for a website, or pretty much anything else that requires “creative” effort.

There was a time in America when any retail business could, as the old sign said, “reserve the right to refuse service to anyone for any reason.” Often such proclamations were just slightly more subtle than the “No Negros,” “No Jews,” or “No Irishmen” signs they replaced, although they still pepper retail establishments across the nation.

And it’s true that if you run a “public accommodation,” you’re welcome to toss out drunk, belligerent, naked, high, or otherwise offensive customers. Bars and airlines — clearly public accommodations — do it daily.

But, particularly since passage of the 1964 Civil Rights Act, there are boundaries around who you can and can’t refuse to serve. Under federal law, you can toss out somebody because they’re wearing a tee-shirt that has offensive language printed on it, but you can’t toss out somebody because they’re Black or wearing a yarmulke.

Title II of the Civil Rights Act specifically says a company doing business with the public can’t discriminate based on “race, color, religion, or national origin.”

And in 23 states plus Washington, DC you can’t refuse service to somebody because of sexual orientation. (The Equality Act, which would put that protection into federal law, has passed the House twice, last year and in 2019, but died both times in the Senate because of Republican filibusters.)

Now the Supreme Court has those state laws protecting gay people in its cross-hairs in the 303 Creative LLC v. Elenis case they heard argued yesterday: specifically Colorado’s law that bans discrimination based on “disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.”

In a twist, the Republicans on the Court chose not to hear Lorie Smith’s original argument that, through her company 303 Creative, she shouldn’t have to make a website for a gay wedding because it offends her “deeply held Christian faith.”

(Although no gay couple has ever asked her to make a wedding website — in fact, no couple of any sort has ever asked her to make any website for their wedding — she’s apparently worried that it may happen and so, with big bucks from rightwingers behind her, took her case to the Supreme Court.)

Instead, Republicans on the Court used their majority status to decide, from among her various arguments, to shift the frame toward “creative expression,” choosing to decide:

“Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.”

In this context, the answer is a slam-dunk. Of course, no law (outside of contract law) should or could compel an artist to speak or stay silent unless their “artistic expression” violates other laws like inciting to violence, etc.

But Ms. Smith isn’t just an artist: she and her company are doing business with the public, just like bars and lunch counters do. And, while federal law doesn’t protect LGBTQ+ people the way it does racial and religious minorities, Colorado law does.

Tearing down Colorado’s law in the name of “creative expression” is the new strategy for “Christian” fundamentalists to attack public accommodation laws; this is in large part a repeat of their failed effort to strike down Colorado’s public accommodation law in the infamous 2018 Masterpiece Cakeshop gay wedding cake case.

When baker Jack Phillips’ case was decided that year, the Court ordered he take a class offered by the State of Colorado in how to comply with public accommodation laws. This is not unusual and is a lot less punishment than sending somebody to jail: when all three Trump children were convicted of nonprofit fraud the State of New York similarly ordered them to attend nonprofit law classes instead of going to jail.

But yesterday Neil Gorsuch freaked out at the very idea, comparing Phillips’ having to attend the class with Mao’s and Stalin’s “re-education programs.” These are some very serious yet very hysterical rightwing justices, and it appears at least some are committed to ending these protections for minorities.

Bigots using religion as their excuse have chafed at these laws ever since Bobby Kennedy used them to forcefully integrate lunch counters in the South and his federal prosecutors used them to end racial and religious discrimination in hotels, theaters, and bars.

Now they’re switching to “creative expression” instead of religion as the club they’ll use to beat down public accommodation laws.

But doing business with the public is not an absolute right in America. You must form the company, apply for a business license, and then figure out how best to offer your goods or services. You must operate, under the laws of most states, “in the public interest” or at least in a way that doesn’t harm the public interest.

Lorie Smith is arguing that she should be able to run a business that serves the public, but that she should also be able to legally discriminate against gay customers because she’s “creative.”

Is the guy painting my gay friend’s house “creative” because he’s helping choose colors and paint the house? How about a barber? Or the chef who owns his own restaurant or lunch counter? A bartender who custom-mixes cocktails?

If this decision is handed down in Smith’s favor and knocks down the Colorado law (and 22 other states’), expect a whole spectrum of businesses run by bigots and religious freaks to begin discriminating against people not protected by the federal Civil Rights Act, with queer people at the top of that list.

If SCOTUS goes the whole distance and guts the Civil Rights Act — like Republicans on the Court did with the Voting Rights Act in 2013 — discrimination against women, Blacks, Jews, Muslims, and the disabled will again become part of the American landscape.

Is there no bottom for the six Republicans on this Court? We’ll soon find out.