A Response to Creative LLC v. Elenis

We are troubled by the implications of the recent Supreme Court case – Creative LLC v. Elenis. The Court’s decision uses arguments grounded in the First Amendment to impose significant limitations on the application of Public Accommodations jurisprudence for people and families in the LGBTQ+ community. Many media outlets framed the case as the freedom of a web designer specializing in wedding websites to choose which clients she would take. This approach to the case focuses on the creativity and freedom of expression of the small businesswomen who sought a way around the application the Colorado Anti-Discrimination Act (CADA). It fails to recognize the fundamental civil and human right to access services available in the public market.

The Colorado Anti-Discrimination Act provides:

“It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, gender identity, gender expression, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.”

While stating she supports the rights of all people, including LGBTQ+ people, the web designer sought to reject the business of same-gendered couples. Presiding Bishop Curry’s Pastoral Word to the LGBTQ+ Community focused on the foundational harm in the Supreme Court’s decision affirming the intentions of the businesswomen. Her desire to reject the business of LGBTQ+ couples engaged to be married fails to recognize the dignity of all persons. The Supreme in effect accommodates a societal hierarchy of human value and declines to see all of us are created in the image of God.

We embrace Presiding Bishop Curry’s unqualified recognition of the dignity, value, and humanity of our LGBTQ+ siblings.

The Supreme Court’s decision also fails as a matter of fundamental public policy. We agree with Justice Sotomayor when she writes:

For the “promise of freedom” is an empty one if the Government is “powerless to assure that a dollar in the hands of [one person] will purchase the same thing as a dollar in the hands of an[other.]”

African Americans and women of all races fought extensive legal battles to expand and solidify the centrality this principle in our common life. These efforts faced and overcame similar efforts to pierce anti-discrimination laws by asserting First Amendment claims. Justice Sotomayor’s dissenting opinion effectively counters the contention that the First Amendment justifies the denial of the freedoms and rights addressed in public accommodations jurisprudence. She writes:

[F]or as long as public accommodations laws have been around, businesses have sought exemptions from them. The civil rights and women’s liberation eras are prominent examples of this. Backlashes to race and sex equality gave rise to legal claims of rights to discriminate based on First Amendment freedoms of expression and association. This Court was unwavering in its rejection of those claims, as invidious discrimination “has never been accorded affirmative constitutional protections.” In particular, the refusal to serve a class of people is not an expressive interest protected by the First Amendment.”

We urge the Episcopal Church and its partners to look beyond the media focus of the implications for LGBTQ+ couples seeking websites. We are called upon to read the Opinion of the Court with a hermeneutic of suspicion. Doing so deepens the solidarity with our LGBTQ+ siblings. Reflect on these words of Justice Sotomayor:

“Wedding websites, birth announcements, family portraits, epitaphs. These are not just words and images. They are the most profound moments in a human’s life. They are the moments that give that life personal and cultural meaning. You already heard the story of Bob and Jack, the elderly gay couple forced to find a funeral home more than an hour away. Now hear the story of Cynthia and Sherry, a lesbian couple of 13 years until Cynthia died from cancer at age 35. When Cynthia was diagnosed, she drew up a will, which authorized Sherry to make burial arrangements. Cynthia had asked Sherry to include an inscription on her headstone, listing the relationships that were important to her, for example, “daughter, granddaughter, sister and aunt.” After Cynthia died, the cemetery was willing to include those words, but not the words that described Cynthia’s relationship to Sherry: “‘beloved life partner.’” There are many such stories, too many to tell here. And after today, too many to come.”

. . .

Today is a sad day in American constitutional law and in the lives of 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. The Court does so for the first time in its history. By issuing this new license to discriminate in a case brought by a company that seeks to deny same-sex couples the full and equal enjoyment of its services, the immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status. In this way, the decision itself inflicts a kind of stigmatic harm, on top of any harm caused by denials of service. The opinion of the Court is, quite literally, a notice that reads: “Some services may be denied to same-sex couples.”

Our resistance of the Courts reasoning and ruling is imperative to advancing God’s justice. We once again call upon our siblings, congregations, dioceses, and institutions affiliated with The Episcopal Church to resist the ruling of the Court and work to solidify the application of public accommodations jurisprudence to all LGBTQ+ people, couples, and families.

Sincerely the euc board of directors: