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Sotomayor says Supreme Court ruling condemns LGBTQ people to 'second-class status'

Justice Sonia Sotomayor said the ruling erroneously defines anti-LGBTQ discrimination as protected speech rather than prohibited conduct.
Sonia Sotomayor during the group portrait session at the Supreme Court building
Sonia Sotomayor was joined by the two other liberal justices in her dissent from the Supreme Court's ruling for an evangelical Christian web designer who refused to work on same-sex couples' weddings. J. Scott Applewhite / AP file

Justice Sonia Sotomayor said Friday that the Supreme Court's ruling in favor of a Christian web designer who refused to work on same-sex couples' weddings is "profoundly wrong" and condemns the LGBTQ community to "second-class status."

Sotomayor, in a 38-page dissent, said the court, in its decision, had issued a "new license to discriminate" against LGBTQ people.

“The Supreme Court of the United States declares that a particular kind of business, though open to the public, has a constitutional right to refuse to serve members of a protected class,” Sotomayor wrote. "The court does so for the first time in its history."

The ruling, split 6-3 along ideological lines, said that Lorie Smith, a Colorado website designer, has a free speech right under the Constitution’s First Amendment to refuse to endorse messages she disagrees with. As a result, she cannot be punished under Colorado’s antidiscrimination law for refusing to design wedding websites for LGBTQ couples, the majority wrote.

Smith — an evangelical Christian who opposes same-sex marriage — sued the state in 2016, saying she would like to accept customers planning opposite-sex weddings but reject requests made by same-sex couples wanting the same service. She was never penalized for rejecting a same-sex couple — and it’s unclear if she ever did — but sued on hypothetical grounds.

The ruling could allow other business owners to evade punishment under laws in 29 states that protect LGBTQ rights in public accommodations in some form. The remaining 21 states do not have laws explicitly protecting LGBTQ rights in public accommodations, although some local municipalities do.

“Today is a sad day in American constitutional law and in the lives of LGBT people,” she added. “The immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status.”

Sotomayor, the third woman and the first Latina member of the court, said the ruling erroneously defines discrimination based on sexual orientation or gender identity as a type of protected speech, rather than conduct prohibited by Colorado's nondiscrimination law.

“The act of discrimination has never constituted protected expression under the First Amendment,” Sotomayor wrote in her dissent, joined by Justices Elena Kagan and Ketanji Brown Jackson.

The government is tasked with preventing the “unique evils” of discrimination, she wrote, and it can require that businesses selling goods or services to the general public comply with nondiscrimination laws.

Public accommodation law, she said, “embodies a simple but powerful social contract: A business that chooses to sell to the public assumes a duty to serve the public without unjust discrimination.”

The public's acceptance of some tenets of LGBTQ rights has coincided with the birth of "reactionary exclusion," the justice wrote, and she called present day backlash to LGBTQ rights "familiar."

"When the civil rights and women’s rights movements sought equality in public life, some public establishments refused. Some even claimed, based on sincere religious beliefs, constitutional rights to discriminate," Sotomayor wrote.

The court rejected those claims, and Friday's case posed a similar question, she said: "A business open to the public seeks to deny gay and lesbian customers the full and equal enjoyment of its services based on the owner’s religious belief that same-sex marriages are 'false.'"

“The movement for LGBT rights, and the resulting expansion of state and local laws to secure gender and sexual minorities’ full and equal enjoyment of publicly available goods and services, is the latest chapter of this great American story,” Sotomayor wrote.

“LGBT people have existed for all of human history," she continued. "And as sure as they have existed, others have sought to deny their existence, and to exclude them from public life.”

In conclusion, she said, "Our Constitution contains no right to refuse service to a disfavored group. I dissent."