How The Supreme Court's LGBT-Gay Case Fractured The First Amendment

 

Craig Konnoth 

University of Virginia School of La

The University of Virginia Law School’s Craig Konnoth says the Supreme Court’s First Amendment doctrine has divided—anti-gay speech enjoys strong Constitutional protection, and pro-gay speech protection grows progressively weaker.

In 1958, the US Supreme Court issued its first ruling involving the rights of what would later be known as the LGBTQ+ community.

The US postmaster general had seized copies of One Magazine, one of the nation’s first gay publications, claiming it was “obscene, lewd, lascivious, and filthy” simply for discussing homosexuality. The trial court agreed with him, as did the federal court of appeals. Without oral argument, the Supreme Court reversed, holding that the First Amendment protected gay speech.

The decision had lasting consequences—it allowed LGBTQ+ people to create publications, spaces, and institutions—and ultimately, to thrive as a community. This community-built a movement that made its way to the Supreme Court.

In 1996, the Supreme Court struck down a provision in the Colorado state constitution that targeted gay people. In 2003, it invalidated laws that criminalized intimate same-sex sexual conduct. In 2015, it vindicated marriage equality. And in 2020, it held that LGBTQ+ people are protected from employment discrimination nationwide.

Yet, stalking each of these decisions was a series of less-prominent cases engineered by anti-LGBTQ+ advocates, who used the First Amendment to hollow out LGBTQ+ victories.

The cases began in 1995 when the Supreme Court allowed the organizers of the Boston St. Patrick’s Day parade to reject LGBTQ+ groups in violation of Massachusetts anti-discrimination law. (The organizers admitted LGBTQ+ groups only in 2015.)

In 2000, the court set aside another anti-discrimination law—this time New Jersey’s—so that the Boy Scouts of America could expel a gay scoutmaster. In 2010, a Christian law student group sued to exclude their LGBTQ+ classmates. In 2018, the court sided with a baker who refused to bake a cake for a same-sex wedding—albeit on very narrow grounds.

These cases formed an ominous backdrop to the movement’s many victories: What the Supreme Court gave with one hand, it seemed ready to take away with the other.

The shoe dropped on June 30. In 303 Creative v. Elenis, the court’s conservative majority held that a graphic designer could decline to build websites for same-sex weddings in violation of Colorado’s anti-discrimination law.

The majority claimed that its decision didn’t target gay people because the website designer would make wedding websites for gay people—just not for same-sex weddings. As the dissent put it—“apparently, a gay or lesbian couple might buy a wedding website for their straight friends. This logic would be amusing if it were not so embarrassing.”

Even more troubling, however, is that this weaponized First Amendment seems good only for anti-gay speech. Taking a page from the anti-gay playbook, in 2006, a group of American law schools argued that because the military discriminated against gay people at the time—a policy ended by President Barack Obama—it would violate the schools’ free speech rights to let the military recruit on campus. The Supreme Court, which had approved anti-gay speech claims in previous cases, held that the schools didn’t have free speech interests in that case.

In Friday’s decision, the court tried to distinguish away the law school case. It asserted that the law schools were only required to post “logistical notices” to let students know where to meet recruiters.

But as the dissent notes, based on the facts before the court, the law schools were also required to “create and disseminate speech propagating the military’s message, which they deeply objected to.” In other words, under the court’s reasoning, an anti-gay designer can refuse to “create and disseminate” pro-gay speech, but a pro-gay law school can’t refuse to do the same for anti-gay speech.

This isn’t the first time that the court has applied a double standard for speech it favors. In the abortion context, for example, the conservative majority allowed red states to compel doctors to offer advice that would steer women away from abortions. But it prohibited blue states from ensuring that pregnant women got information regarding state-funded abortion services.

Similarly, plaintiffs who challenged President Donald Trump’s ban on immigration from certain Muslim-majority countries pointed to Trump’s numerous statements that he would end Muslim immigration. The Supreme Court’s conservative majority claimed that those statements didn’t prove that the ban was anti-Muslim.

But that same year, the court held that the Colorado baker who declined to make cakes for same-sex weddings had suffered discrimination because a member of the Colorado civil rights commission had said that religion had historically been used to justify discrimination.

Today’s First Amendment is a far cry from the one that shielded the LGBTQ+ community in its early days. It has been transformed by today’s Supreme Court into a weapon.

But even worse, there are two different First Amendments depending on the speech at issue. Anti-gay speech? Strong First Amendment protections. Pro-gay speech? Weak protections. Speech against reproductive rights? Strong protections. Speech supporting reproductive rights? Weak protections.

By fracturing rights depending on who is speaking, today’s court has fashioned a First Amendment that will, itself, become the biggest threat to free speech in the United States.

The case is 303 Creative LLC v. Elenis, US, No. 21-476, 6/30/23.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Craig Konnoth is the Martha Lubin Karsh and Bruce A. Karsh Bicentennial Professor of Law at the University of Virginia School of Law.

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