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Legal experts and gay rights advocates in Connecticut tell CT Examiner that they expect more litigation in the wake of a U.S. Supreme Court decision allowing a web designer to refuse to create same-sex wedding websites. The June 30th decision leaves unresolved what other businesses could similarly refuse service based on religious beliefs.
In the 6-3 decision, the conservative majority on the court said businesses offering “expressive” products or services can raise objections to providing service to the LGBTQ+ community.
The justices cited several examples of what they said would be services considered to have an expressive conduct associated with it, including artists, photographers, speech writers, filmmakers and muralists.
But Wayne Unger, an assistant professor of law at Quinnipiac University, told CT Examiner that while the justices cited those examples, he said the ruling still leaves some open questions on just what other businesses would fall under the “expressive” model.
“There is still an open question under this ruling on what is expressive enough to warrant the business owner from saying, ‘We will not serve you because our product or service is expressive.’ Unger said.
The ruling wouldn’t apply, for example, to selling groceries, Unger said, because “there is no expressive conduct associated” with that.
Several experts interviewed said the majority of transactions, however, for practical purposes, wouldn’t be affected by the ruling.
“Practically speaking, this ruling is irrelevant [in most cases],” Unger said.
“It’s really a very narrow ruling,” said First Amendment expert and attorney Zach Phillips, an associate with Stamford-based Wofsey, Rosen, Kweskin & Kuriansky.
The crux of the court’s ruling revolved around “compelled speech” and the premise that the government can’t compel someone – in this case a Christian web designer – to verbally or not verbally do something expressive if they didn’t want to.
The court cited the 1943 ruling in West Virginia State Board of Education v. Barnette. In that case, the state Board of Education – during the height of World War II – had passed a resolution compelling students to recite the pledge of allegiance and to salute the flag. In Barnett, the majority of the court wrote that the resolution was unconstitutional because the government can’t compel someone to do something ‘expressive’ if it was contrary to their beliefs.
“This court relied heavily on Barnette,” Unger said. “If there’s ever a case that deals with compelled speech, it goes all the way back to Barnette in 1943.”
There were many aspects of the court’s ruling that took several experts by surprise.
“The court didn’t identify a limiting principle and that surprised me,” Phillipps said. “They didn’t try to limit the scope of their decision. They didn’t even try to explain the difference between a service that involves expression versus a non-expressive service. They had a few lines about goods and services that no one could argue [are expressive], but they don’t explain where the line is.”
Both Unger and Phillips said others might try to test the ruling and noted that, in their opinion, more litigation is expected.
“There will be future litigation I am sure that is almost certainly going to happen,” Unger said.
“What about a business that provides funeral services,” Phillipps said. “They do involve some speech, or at least expression. There is also some debate about passport photos and the right of a company to refuse to take passport photos.”
In writing for the majority, Justice Neil Gorsuch said the First Amendment protects one’s right “to think and speak as they wish.”
Unger said Gorsuch had somewhat of a point, but added, “It’s also well-established that the freedom of thought is not absolute. What about someone who believes in human sacrifice, maybe it’s a religious belief of theirs. Well, we cannot practice human sacrifice.”
Several local attorneys and professors also noted that plaintiff and web designer Lorie Smith, of Colorado, had not been approached to provide services for same-sex weddings in the case.
“For me, the biggest issue was standing. The woman petitioner didn’t actually have any gay couples who were seeking wedding services from her,” said Hartford-based Reid & Riege attorney Ryan Downing, a chairperson of the Connecticut Bar Assoication’s LGBT Section. “This was all completely speculative. Fundamentally, you need to have a real credible threat before you can have a court decide an issue for you. It’s not really for the court to test laws if there hasn’t been a conflict yet.”
Unger agreed, arguing that “because there was no actual controversy, this case should not have been decided.”
Peter Wolfgang, executive director for the conservative-leaning non-profit Family Institute of Connecticut, praised the ruling, telling CT Examiner that “free speech is for everyone” and the country’s high court made the right decision.
“She is a creative professional and she should not have to be forced to express a message she did not believe in,” Wolfgang said. “All the Supreme Court did here was uphold the rights we’ve all had since our founding. This was a First Amendment case and the U.S. Supreme Court ruled in favor of free speech. I expected this ruling; it was a long time coming.”
But Connecticut Business & Industry Association President and CEO Chris DiPentima said that regardless of the ruling strong businesses are welcoming to everyone.
“Successful businesses are welcoming and inclusive, whether it’s with their approach to sales and marketing, or hiring and workforce development,” he told CT Examiner. “We expect that, regardless of this decision, Connecticut businesses will continue to emphasize diversity, equity, and inclusion in all their practices and policies.”
Given that Connecticut is more supportive of LGBTQ+ rights than many other states, several people interviewed also told CT Examiner they’d expect a backlash or boycott against any Connecticut business that would deny such services.
“Connecticut is more moderate – more progressive – and less polarizing on this issue,” said Susan Schmeiser, a professor at the University of Connecticut School of Law. “So, if a hypothetical Connecticut business were to include a statement on their website that says, ‘We believe gay [rights and marriage] violate some sort of biblical mandate,’’’ then, yes, I think there would be boycotts and pushback in this state.”
In a statement issued June 30, state Attorney General William Tong said, “Hate is bad for business. Businesses who discriminate against customers and refuse service to people based on who they love or how they identify will not be getting my business.”
Tong also filed an amicus brief in the case noting that – like Colorado – Connecticut’s public accommodation laws forbid discrimination on the basis of sexual orientation. Smith had argued the free speech guarantee of the Constitution entitled her to an exemption from that law.
However, Tong wrote, “Allowing private businesses to exempt themselves from nondiscrimination laws on the basis of an ill-defined test based on ‘expression’ would dramatically undermine the states’ interests in eradicating discrimination and harms individuals and society at large.”
Schmeiser suggested that the ruling could result in more discrimination.
“Not just gay people,” Schmeiser said. “It could open the door to additional discrimination against gay couples and members of the LGBT community, but it could also open the doors to tolerance of other kinds of discrimination.”
John Pica-Sneeden, executive director of the Connecticut Gay & Lesbian Chamber, told CT Examiner the ruling takes the country back 100 years.
“To imagine that in 2023, we are living in the United States of America, the most powerful country and supportive of human rights and everything in the last 20, 30 maybe 50 years,” Pica-Sneeden said. “We’ve now gone back to the 1920s. … Someone please pinch me so I can wake up. It is just too stupid to even wrap my head around.”