Last summer, the Supreme Court of the United States of America issued a series of decisions that welcomed the conservative movement on the other side of the Atlantic. They considered such issues as the constitutional right to abortion, the freedom of expression of faith and the separation of religion from the state or the interference of federal agencies in the environmental policy of the state. Exactly one year has passed and that’s it! – Several decisions that followed each other in quick succession seem to share the same conservative vision of how American society should be organized. Among them, I propose in two episodes to comment on the ruling on the denial of services with pro-LGBT content and, subsequently, on affirmative action measures at several American universities (“affirmative action”).

At first glance, both decisions consider facts related to the area of ​​discrimination. The first deals with discrimination against homosexual couples; at least that’s what the many translations of the Court’s reasoning headings tend to boil down to “Court limits protections afforded to LGBT community…” In a higher education decision, the Court ruled unconstitutional the use of race in some universities’ admissions policies.

Thus, at first glance, the US Supreme Court would recognize a constitutional form of discrimination in one of the decisions, while overturning in the other as an unconstitutionally discriminatory but justified practice. It is not difficult to see the ideological affinity of the decisions with the conservative vision. Thus, the mass media and international civil society interpreted the decision predictably – that is, in an ideological way. I will argue below that this reading of the decision on services “for same-sex couples” is incorrect; and in the next episode, about positive action, which is actually much more complicated.

Before analyzing the first judgment, one more prehistoric observation. Today, the vast majority (about 60%) of Americans are not only in favor of same-sex couples, but also in favor of same-sex marriage. Among supporters of the Republican Party, this position is shared by more than 40%; among supporters who identify as conservative, the figure is one-third. When it comes to the use of racial criteria in university admissions, only a third of Americans support the practice, while half disapprove and 16% have no clear opinion. Statistics are important for understanding the social context in which the Supreme Court operates. At the same time, it is worth emphasizing now that the first decision does not threaten the right of same-sex couples to marry and, in my opinion, access to services as well. The second decision restricts the right to use race as a criterion for access to education – although, I suspect, not as much as it first appears.

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decision 303 Creative v. Elenis relates to a website creator’s dispute with the State of Colorado. The legal conflict began with the fact that the first initiated the case for the purpose of obtaining a preventive measure (ban), so that the authorities of the mentioned state could not force it to create, according to the business plan, portals for marriages between persons of the same sex. Such creations would express a point of view that contradicts the religious beliefs of an entrepreneur named Laurie Smith. (If this preventive action seems suspicious to you, since the woman was actually never bothered by the authorities, and the object of activity that the company is aiming for was not even implemented, then the reason is simple – this is how strategic processes, left and right, are planned, which are aimed at important normative changes through high courts.)

Specifically, it involved a Colorado law that prohibited commercial services intended for the general public from excluding people based on, among other things, their sexual orientation. RS. Smith argued that the “creative” services his firm intended to offer excluded messages that “contrary to biblical truth.” The entrepreneur lost the case in the federal court of first instance and then in the federal appeals court. In other words, he did not obtain an injunction against the Colorado authorities.

The Supreme Court decided the case in terms of the free speech clause of the First Amendment to the US Constitution. He favored that approach over another recent case, also in Colorado. It focused on the government’s violation of religious neutrality obligations imposed by the religion clauses of the same amendment. Since the decision of 2018 Confectionery “Masterpiece”., was relatively limited by the specifics of the legal process, the interest in the case discussed here is obvious. In fact, the Constitutional Court had the opportunity to speak more clearly about conflicts of the considered type, placing them under the auspices of a more general principle.

The point of view of the Constitutional Court is well illustrated by comparing it with the decision of the Federal Court of Appeal, which is contested directly in the reasoning. In particular, the appeals court held that, even though Colorado law imposed restrictions on the free will of an entrepreneur, the limitation of the right would be acceptable due to the fact that the company provided commercial services open to the general public. Such a service should be available to all citizens, regardless of such criteria as sexual orientation, the protection of which is a legitimate interest of the state. But, the authors of the motivation note, this perspective implies that some service providers are obliged to express themselves “as required by the state, or accept sanctions for expressing their own beliefs.”

The nature of the services provided by Ms. Smith plays a key role in the Supreme Court’s reasoning. The service provides access not to an ideologically neutral product (for example, a place in a restaurant or housing), but, on the contrary, to a creative or expressive product with a pronounced ideological charge. The difference becomes clearer if we slightly change the details of the case. We can imagine a web designer refusing to create portals for a couple of members of the neo-Nazi party who want, say, to get married under the swastika sign. Or we can imagine a Palestinian web designer who refuses to create travel portals that glorify Israel. Guided by the same logic, the authors of the motivation themselves give an example of a designer married to a person of the same sex, who is requested by sites for organizations that oppose this relationship. The majority’s assumption seems to be that in such situations (to which I will return) few Americans would view a government-sanctioned denial of service as a form of discrimination.

It is also important to the Court that the service in question is not difficult to obtain in Colorado. The fact that the alleged creations of Ms. Just because they’re “original” and “customized” to the customer’s wishes doesn’t make them “unique,” as a federal appeals court held, Smith said. Potential customers can access equivalent services – though not strictly speaking identical in outcome – elsewhere and easily. Thus, the Supreme Court distinguishes the case from monopoly-type service situations such as passenger transportation (which, of course, is not a creative service). Here, restricted access can change the dynamic between the public interest and the right to free expression.

The coincidence of the factors described above – expressive character of the provided service and availability on alternative paths – I do Mrs. Smith, viewed in the light of American constitutional free speech jurisprudence, is quite straightforward. Why then the excessive and ultimately confused interpretations in the international press? New York Times he feels no less than a possible threat to same-sex marriage. Guardianclaims for “dismantling of the entire anti-discrimination matrix in public services”; and, elsewhere, “a blow to LGBTQ+ rights.” IN LA Times, a law professor at a major Texas university, believes law firms are no longer serving gays. The Biden administration did not budge: “Today’s decision weakens already established laws that protect all Americans from discrimination in services to the general public — including people of color, people with disabilities, people of faith and women.”

Admittedly, the dissenting opinion of the Supreme Court, written under the fierce pen of Justice Sonia Sotomayor and signed by two other non-conservative justices, does not help to soften the interpretation. Rather, the opinion begins with an exaggerated reading of the decision: “Today, for the first time in its history, the Court grants a firm dealing with the general public a constitutional right to refuse to provide services to members of a protected organization. class”. The over-interpretation is then persistently pursued to its ultimate consequences. Among them is the idea that refusing to create a website of this type is equivalent to: posting a “No Blacks, Muslims, Gays” or “No Dogs and Jews” notice in a public commercial space; refusal to bury a person with a same-sex partner; the historical exclusion of women from restaurants, bars, professional organizations, financial institutions, and sports; and – a statement hidden in a footnote – with the notorious racist practice of “separate but equal” (separate but equal), reserved for the gay community in the future. These equivalencies, which the minority opinion does not interpret analytically, but contently invokes rhetorically in various segments of the text, ignore the central distinction in the Court’s reasoning: the entrepreneur expressly stated that he offered his services to anyone, regardless of sexual orientation. , but not independent of the content it is being asked to have.

The exaggeration of dissent that equates the refusal to create a website under the specified conditions with a set of acts of gross discrimination culled from American history offers a good opportunity to return to previously invented scenarios. I find it remarkable that the signatories of the minority opinion, along with all the critical commentary in the press, ignore precisely these analogous situations. These are borderline cases useful for determining the limits of freedom of expression, respectively, anti-discrimination. Should the state compel a company that prints messages on gay-owned t-shirts and banners to comply with any order, no matter how disgraceful the requested messages may be from a business perspective? How do mock cases differ from Supreme Court trials?

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It is not difficult to understand why this decision is made 303 Creative much of the LGBT community and its allies condemned it as a major blow. It is symbolic that the ideology of the opposite social movement — religious conservatism — won again in the confrontation in the Supreme Court. In the wake of the culture war in the US, Republican politicians in many states, along with too many of their conservative supporters, have demonstrated that the mantras small government and freedom of speech nor is it about regulating “gender theory” (or “critical race theory”) through restrictive and confusing laws. Strategically, the call for a radical attack on the LGBT community is shown, and this is understandable: donations will flow in, some passive sympathizers will become active members, etc. – Read the entire article and comment on Contributors.ro