Supreme Court gets another shot at weakening other rights
Here is how the League of Women Voters assessed the slippery slope greased by the Dobbs decision to overturn Roe v. Wade after half a century:
Justice Alito maintained that, contrary to the fears of many civil rights advocates, this decision had no bearing on other unenumerated rights (rights not specifically spelled out in the Constitution but nevertheless recognized as fundamental) such as marriage equality, same-sex intimacy, and contraception access. However, Justice Thomas undermined this assertion by penning a concurrence calling for a new look at the decisions protecting all the above rights, and more.
Congress just passed The Respect for Marriage Act to codify rights Justice Thomas threatened not so obliquely in his concurrence. But whether Alito’s opinion can be trusted will be tested in a case the U.S. Supreme Court hears next week.
The American Prospect explains:
In 303 Creative v. Elenis, slated for oral arguments next week, the Court has a chance to redeem its word by protecting LGBTQ equality again. If bets are right, however, and the case yields new First Amendment free-speech exemptions to Colorado’s public accommodations law, the Court will squander the chance.
By appearances, 303 Creative doesn’t involve LGBTQ constitutional rights. Technically, the case centers around claims by a religious conservative graphic artist and website designer to First Amendment speech protections against Colorado’s public accommodations law. This law includes a ban on public-facing businesses discriminating against would-be customers based on their sexual orientation. Many people fear a ruling vindicating these free-speech claims will precipitate constitutional cutbacks to other measures outlawing anti-LGBTQ discrimination, and even to civil rights protections prohibiting discrimination based on categories like race, ethnicity, and sex.
The court set aside First Amendment arguments in the 2018 Masterpiece Cakeshop case.
“Whatever the craft, skill, or artistry in creating a custom wedding cake, selling those cakes to marrying couples who were equals in the law’s eyes was like Freud’s cigar: The sales were just sales—economic transactions or business trades—that happen to involve custom wedding cake-making, nothing else or more,” is how Marc Spindelman interprets the court’s majority opinion in which Thomas sympathized with the cake-maker’s free-speech argument.
But things could change in the case of Lorie Smith, a Colorado religious graphic artist and website designer.
Clarifying Kennedy’s opinion’s logics, the Thomas concurrence tipped its own hand. Its affinities for the cake-maker’s free-speech rights traveled with skepticism about Obergefell, which surfaced at one point as the concurrence described same-sex weddings as “weddings,” as though unreal. Thomas has repeatedly questioned Obergefell since. His Dobbs concurrence openly called for its—and other LGBTQ constitutional rights’—repudiation.
Thomas, then, may favor a First Amendment ruling crediting Smith’s claims in 303 Creative, which would speed Obergefell’s demise from another direction. It’s easy to imagine a Thomas opinion promising “individuals the [First Amendment free-speech] right to disagree about Obergefell and the morality of same-sex marriage” that suggests those same individuals should be allowed to translate that disagreement into policy action restoring marriage’s traditional definition. Obergefell’s elimination is key to that achievement.
Watch that space.