Supreme Court ruling on ‘303 Creative’ shows it has little interest in protecting LGBTQ rights

As a 17-year-old closeted high schooler spending my summer of 2015 in rural Rowan County, Ky., I vividly recall the day I sat staring at a public library computer as then-President Barack Obama powerfully declared that same-sex couples had a right to marry those they love. As a young gay man spending that summer in the very same county as the notorious Kim Davis, who refused to issue marriage licenses after the decision, the court’s opinion in Obergefell v. Hodges — the 2015 U.S. Supreme Court ruling that legalized gay marriage — felt like a powerful affirmation that it was OK to be gay.

For some passive onlookers, the court’s opinion in Obergefell appeared to be a signal that the gay rights movement could finally wrap up its decades-long struggle to achieve legal equality in the United States.

On Friday, the Supreme Court reminded LGBTQ Americans that the fight to achieve legal equality in the United States is far from over.

Rather than continuing the efforts of past courts in expanding the rights of queer people, the court has ruled in 303 Creative LLC v. Elenis that states are no longer permitted to protect LGBTQ individuals from businesses that refuse certain services to our community.

The Supreme Court has fully revealed that it prioritizes the faux speech of businesses seeking to avoid serving queer people over the antidiscrimination principles embedded in our country’s Constitution.

Friday’s decision concerns a wedding web designer who refused service to same-sex couples.

Now imagine instead that it is a heterosexual couple getting married. Imagine also that this couple is an interracial couple who sought out a cake designer to create a custom wedding cake, and that designer refused to serve the couple solely because designing the cake allegedly implied approval of interracial marriage.

That doesn’t feel like free speech. That feels like clear-cut discrimination based on race.

That doesn’t feel like free speech. That feels like clear-cut discrimination.

Yet with LGBTQ people like myself, the court has now turned its eye to what is obvious discrimination and instead casts such a practice as falling under the protected “free speech rights” of the business owner. In doing so, the conservative justices on the court — for the first time in history — have granted businesses the constitutional right to refuse services to a protected class.

Only one thing can account for the radical decision to interpret denying LGBTQ Americans services not as discrimination, but as “free speech”: The court is willing to accept discrimination on the basis of sexual orientation.

Such a sweeping attack on antidiscrimination protections across the country will undoubtedly result in LGBTQ Americans having a new form of heightened anxiety any time they enter a business establishment that offers creative services. Each time, we will wonder if we will be the next queer person to be shamed through a public denial of that business’ services. More significantly, the 303 Creative decision will signal to queer people that our identities are somehow worthy of discrimination and that our ability to express our queerness is not guaranteed.

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These setbacks will undoubtedly stand as an affront to the decades of queer activism that led to Supreme Court decisions powerfully decriminalizing private conduct between LGBTQ individuals, legalizing marriage, and expanding employment discrimination protections.

For those of us who will be impacted by Friday’s devastating decision, we will have no choice but to continue to work against the backdrop of a court that continues to stack the cards against us.

Robert Blake Watson is a 2023 dual-degree graduate of the University of Pennsylvania Carey Law School and Graduate School of Education. He is a native of Louisville, Ky.