What does the new law on same-sex and interracial marriage do? + Supreme Court debrief: free speech v. LGBTQ rights
What does the new law on same-sex and interracial marriage do? + Supreme Court debrief: free speech v. LGBTQ rights
Following the Supreme Court's oral argument in an important civil rights case, President Biden signed a landmark bill with (limited) protections for same-sex and interracial marriage
President Joe Biden signed landmark legislation this week providing some protections for same-sex and interracial marriage. I discussed the legal implications on ABC News below:
What does the Respect of Marriage Act do?
Requires states and the federal government to honor all marriages regardless of sex, race, ethnicity or national origin.
Does not require states to issue same-sex or interracial marriage licenses.
Repeals the 1996 Defense of Marriage Act, which President Bill Clinton signed into law, allowing the federal government and states to reject same-sex marriages. The Supreme Court struck down key provisions of that law in the 2015 case, Obergefell v. Hodges, and a 2013 case called United States v. Windsor. So, as a practical matter, the new law doesn’t do much to change existing rights.
Creates a legal mechanism for individuals to sue in court for violations.
These marriages are already constitutionally protected by Obergefell (for gay couples) and the 1967 decision Loving v. Virginia (for interracial couples). The new law prevents married same-sex and interracial couples from being denied civil rights benefits granted to them now if either of these cases is overturned by the Supreme Court later.
The Court could still abolish the constitutional right to marry and leave that choice to the states—like it did in the Dobbs case with the right to terminate pregnancies. If that happens, the new law will require all states to recognize pre-existing marriages.
The law is of historic and symbolic significance because it had bipartisan support in Congress, sending a message to the extremists on the Supreme Court that the other two branches are not exactly on board with its narrowing of additional constitutional rights on flawed theories of “textualism” or “originalism.”
What is at stake in the related First Amendment case before the Supreme Court?
✝️ v. 🏳️🌈 Do businesses have a constitutional right to deny commercial services for same-sex couples, in violation of a state’s anti-discrimination law?
“What this case is addressing is whether you have a constitutional right under the First Amendment to discriminate, notwithstanding . . . protections against discrimination. This case has huge implications beyond LGBTQ rights.”
— Kim Wehle on SCOTUS review of a website designer’s desire not to create wedding pages for same-sex couples
Source: Andrew Harnik / AP Photo
Case: 303 Creative LLC v. Elenis
Issues: Can a Colorado-based web designer be obligated by the state’s anti-discrimination law to design wedding websites for same-sex couples along with heterosexual ones? Or does Colorado’s anti-discrimination law violate the First Amendment’s Free Speech Clause?
Context: The State of Colorado has a law on the books called the Colorado Anti-Discrimination Act, which prohibits businesses that serve the general public from discriminating against customers on the basis of protected characteristics like race, sexual orientation, and marital status.
Although the case does not directly implicate the U.S. Constitution’s Equal Protection Clause, the Colorado law guarantees “equal access to public accommodations, housing, and employment regardless of disability, race, creed, color, sex, sexual orientation (including transgender status), marital status, family status, religion, national origin, or ancestry.”
These protections mirror many rights enshrined in the Constitution and under Supreme Court precedent.
So in theory, the case pits a potential First Amendment right to not “speak” favorably about gay marriage against other folks’ right not to be discriminated against because of sex, sexual orientation or marital status.
If the Colorado law is struck down on free speech grounds, there’s nothing clearly stopping the ruling from infecting other legal rights protections, including freedom from discrimination on the basis of race.
During oral argument, Justice Ketanji Brown Jackson took the theory to its logical conclusion by asking: Could a company offering a “Scenes with Santa” photo op in Colorado have a policy that only white kids can sit with Santa—because that’s constitutionally protected free speech?
(The logical implication: If so, what kind of country could we soon be living in?)
The Christian web designer, Lorie Smith, opposes same-sex marriage on religious grounds. She argues that the Colorado law violates the First Amendment by making her engage in speech with which she does not agree—what is legally known as “compelled speech.”
Flashback: Didn’t the Supreme Court hear a case like this before?
Yes. In 2018, the Supreme Court heard a case challenging the same Colorado statute called Masterpiece Cakeshop v. Colorado Civil Rights Commission. The case involved a bakery that refused to sell wedding cakes to same-sex couples. The Supreme Court sidestepped the constitutional questions and ruled for the baker based on a narrow procedural issue. It left open the big question of whether the First Amendment creates an exception to laws banning discrimination.
(Kristen Waggoner of Alliance Defending Freedom argued for the baker in Masterpiece. She also represents the web designer, five years later.)
The Christian website designer has yet to make a wedding site. Her concern about violating the Colorado law is hypothetical. There is therefore a valid argument that she does not have standing—i.e., the legal right to initiate a lawsuit—in the first place, because she has no actual injury. The Supreme Court could have easily refused to take the case on that basis.
Its decision to ignore the problem of standing means it will probably make new law on the rights-versus-rights question.
The website designer is asking the Court to apply a 1995 case called Hurley v. Irish-American Gay, Lesbian & Bisexual Group, which held under the First Amendment that Massachusetts could not require private organizers of Boston’s St. Patrick’s Day parade to allow an LGBTQ group to march.
In Pittsburgh Press v. Human Relations Commission, however, the Court in 1973 upheld a municipal law banning discrimination on the basis of gender in employment want-ads. The company claimed it had a First Amendment free speech right to post “men only” jobs. The Supreme Court disagreed.
To rule for Smith, therefore, the modern Court will have to grapple with some precedent.
Colorado wants the Supreme Court to uphold its anti-discrimination law, which it says does not target the speaker’s message. According to Colorado, the law merely prohibits discriminatory sales, so it is constitutional. A store could decide that it will only sell Jewish-themed items, for example, but it can’t refuse to sell those items to Muslim or Christian customers.
Looking ahead: At oral argument, Justice Sotomayor posed a troubling hypothetical—If the Court sided with the website designer, does that mean a designer could refuse to create wedding websites for interracial couples or for people with disabilities who want to marry?
If the Supreme Court creates a First Amendment exemption from anti-discrimination laws, the decision could ultimately extend to other immutable characteristics, such as race.
Sooo….does this case suggest that we could one day revert to racially-segregated water fountains or bans on women attending certain private schools—all in the name of free speech?
Maybe.
Education is key to protecting democracy. Now is a good time to pick up or gift a copy of my first book, How to Read the Constitution-and Why.
