Justice Jackson Has The Perfect Question When An Attorney Urges SCOTUS To Allow LGBTQ Discrimination

The U.S. Supreme Court is hearing oral arguments today in a case involving the rights of private businesses to discriminate against LGBTQ Americans on “religious grounds,” and there are fears that conservatives on the high court may allow discrimination if the defendant claims it violates his or her beliefs.

Reuters reports on the case:

The wedding websites that Colorado-based web designer Lorie Smith would like to create for clients might offer ceremony details, pictures, a story about the couple and a biblical quote celebrating how through marriage they “become one flesh.”

They would not, however, show same-sex nuptials.

Smith, an evangelical Christian who believes marriage is only between a man and a woman, has taken her fight to refuse to make wedding websites for same-sex couples and to advertise that policy to the U.S. Supreme Court in a major case to be argued on Monday. Smith is appealing lower court rulings backing Colorado.

During oral arguments, some of the conservative justices did indeed seem included to allow such blatant discrimination, according to CNN.

Justice Neil Gorsuch noted that a businessperson’s objection would not be based on the status of the same-sex couple, but instead, the message the businessperson did not want to send. The question isn’t the “who” Gorsuch said, but the “what.”

Justice Amy Coney Barrett told a lawyer for the designer that her “strongest ground” is that the designer’s work is “custom.”

The newest justice, Ketanji Brown Jackson, had a brilliant question for an attorney representing Smith before the court.

“Give me your thoughts on a photography business in a shopping mall during this holiday season that offers a product called Scenes with Santa, and this business wants to express its own view of nostalgia about Christmases past by reproducing classic 1940s and 1950s Santa scenes…because they’re trying to capture the feelings of a certain era, their policy is that only white children can be photographed with Santa in this way, because that’s how they view the scenes with Santa that they’re trying to depict.”

The attorney desperately attempted to differentiate between the two:

“Because in the photograph itself, the objection is not contained in that photograph. But in addition, I think it’s important to remind the court –”

When Jackson countered that the two instances are exactly the same, the attorney replied, “The specific objection that you’re including is not necessarily in that photograph, but even if it were, this court has protected vile, awful, reprehensible, violent speech in the past.”

How exactly is it “speech” to refuse to set up a website for someone just because the potential client is LGBTQ? That’s discrimination and it wouldn’t be allowed based on the color of a person’s skin, as Justice Jackson noted. But the current right-wing 6-3 majority on the court may allow it to happen with their approval. Yet another reason we need to expand the court and make sure these six extremist judges don’t take away every right we have.