The U.S. Supreme Court ended its first term of 2023 last month with some stunning decisions – stunning, but not surprising. A year ago the Court finished with its shocking reversal of the 1973 landmark Roe v. Wade, which had legalized abortion in the United States. Ending abortion in this country had been a long-standing goal of social and religious conservatives and they finally accomplished that mission. But this time the Court went further in their swing to the far right by ending affirmative action in college admissions and allowing religion to be used to discriminate.
In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the Court ruled that the admissions programs used by the University of North Carolina and Harvard College violate the Constitution’s equal protection clause (the 14th Amendment), which bars racial discrimination by government entities. The 14th Amendment has been utilized to undermine entrenched discrimination for decades. It has manifested its power in such SCOTUS decisions as Brown v. Board of Education of Topeka and Miranda v. Arizona. Ironically, the Students for Fair Admissions ruling reversed a 20-year-old case, Grutter v. Bollinger, which declared race as a plausible factor in college admissions policies. Have things really changed for the better in two decades? All of this also reminds me of the Regents of the University of California v. Bakke, in which a White man, Allan Bakke, sued the University of California Medical School at Davis for refusing to admit him; the school had reserved 16 places in each entering class for qualified ethnic minorities. Bakke had applied twice to the school and been denied twice, despite having a high GPA and test scores. SCOTUS ruled that, while race was a qualifying factor in college admissions, the University of California policy at the time, indeed, violated the Constitution’s 14th Amendment.
I have to admit I support their affirmative action decision. As noble a philosophy as it was, I feel affirmative action has run its course, and – as we march further into the 21st century – it’s time we truly become a color blind society. Actually it’s way past time. But, as with campaign promises and many business plans, things look great on paper. Personally I don’t feel affirmative action has helped me. It hasn’t hurt me, but it certainly hasn’t helped me. I never asked for special rights or considerations. But, like I told a friend years ago, while legislation may have forced the playing field to become level, are all the players on the field playing on the level?
It’s the Creative 303 decision, however, that concerns me the most. Last year the Supreme Court made perhaps its most controversial decision in decades with the Dobbs ruling that effectively ended the constitutional right to an abortion. But, in the 2022 Carson v. Makin ruling, the Court chipped even further away at that cherished separation between government and religion, when it declared the state of Maine had violated the constitution when it refused to make public funding available to students attending religious schools. In general religious institutions don’t pay taxes; therefore, they’ve traditionally been unable to access tax money at either the state or federal level. The reasoning was practical: anyone who receives government funding should follow certain rules and regulations. People taking unemployment insurance, for example, have to conduct a minimum number of job searches weekly; otherwise, they can’t receive that money.
In the Creative 303 case, Colorado web site designer Lorie Smith had allegedly refused to design a site for someone planning a same-sex wedding; declaring that it was an affront to her religious beliefs and therefore, violated her First Amendment rights. It’s similar to another case from Colorado, Masterpiece Cake Shop v. Colorado Civil Rights Commission, in which Jack C. Phillips, the owner of Masterpiece, refused to bake a wedding cake for a male couple on the grounds that it violated his religious beliefs; he simply didn’t believe in same-gender unions. The couple, Charlie Craig and David Mullins, filed suit, claiming Phillips was in violation of Colorado’s Anti-Discrimination Act. The Supreme Court ultimately ruled in Philips’ favor, decreeing that the Colorado statute violated “the State’s duty under the First Amendment not to use hostility toward religion or a religious viewpoint as a basis for laws or regulations.”
But no sooner had the Creative 303 ruling been made than news arose that Smith may have fabricated her initial claim. The man who supposedly asked her to design a web site for a same-gender wedding states he never worked with her. Smith, however, cited the man – identified only as “Stewart” – in 2017 court documents and included his phone number and email address. But “Stewart” says he didn’t even know his name had been invoked in the original lawsuit until a report with “The New Republic” contacted him.
“I was incredibly surprised given the fact that I’ve been happily married to a woman for the last 15 years,” said Stewart, who declined to give his last name for fear of harassment and threats. He noted that he’s a designer himself and could have created his own web site if necessary.
One of Smith’s lawyers, Kristen Waggoner, insisted Stewart’s name and other information had been submitted to her client’s web site and denied the entire claim had been fabricated. But she suggested an internet troll had made the request to Smith; adding that’s it occurred with other clients. Ironically, the aforementioned Jack C. Phillips was also Waggoner’s client.
Regardless, I have to wonder if this revelation doesn’t render the Creative 303 ruling invalid. Even if an internet troll had made the initial application, Smith’s attorneys should have verified every detail of the case. That’s what lawyers are supposed to do.
Getting a matter before the U.S. Supreme Court is no small feat; they don’t take on minor traffic infractions. That’s why so many of their decisions are monumental and can reshape society. And thus, it’s why people are rightfully concerned about the implications of the Creative 303 edict. If religious ideology can be the basis for discrimination, who’s to say a business owner can’t refuse to service a prospective client under such a pretense? Technically businesses have the right to refuse service to anyone, but that’s generally happened only under the most egregious of circumstances. A bar or nightclub, for example, can refuse to admit someone who’s visibly intoxicated. I’ve seen signs on doors declaring “no shirt, no shoes, no service”.
Years ago another friend told me I discriminate whenever I choose one food item over another. “That’s not discrimination,” I told him, “that’s selection.” But he was a conservative, so I guess I understood why he couldn’t make that distinction.
Still, I certainly hope many Black, Hispanic and queer conservatives are happy with their votes for George W. Bush and Donald Trump. Despite not winning the popular vote in their respective elections, they were able to place five justices on the U.S. Supreme Court. That has never happened before in the history of U.S. legal jurisprudence. All five of those individuals have now set back decades of civil rights advancements. A truly democratic society is supposed to protect all of its citizens from bigotry and oppression. I fear we’re doing the opposite in the United States.
Chief Writing Wolf 