CMV: The Recent Smith vs CO SCOTUS Ruling Enables Legal Discrimination Against Protected Classes by Businesses
Summary of the case including the full decision:
https://www.npr.org/2023/06/30/1182121291/colorado-supreme-court-same-sex-marriage-decision
>Writing for the conservative majority, Justice Neil Gorsuch drew a distinction between discrimination based on a person's status--her gender, race, and other classifications--and discrimination based on her message.
>"If there is any fixed star in our constitutional constellation," he said, "it is that the government may not interfere with an 'uninhibited marketplace of ideas.'" When a state law collides with the Constitution, he added, the Constitution must prevail.
>The decision was limited because much of what might have been contested about the facts of the case was stipulated--namely that Smith intends to work with couples to produce a customized story for their websites, using her words and original artwork. Given those facts, Gorsuch said, Smith qualifies for constitutional protection.
>He acknowledged that Friday's decision may result in "misguided, even hurtful" messages. But, he said, "the Nation's answer is tolerance, not coercion. The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands."
As Justice Brown indicated in a hypothetical during oral arguments that if this case is decided for Smith there's nothing substantial stopping a business who meets a "customized expression" criterion from discriminating against any protected class. From the dissenting justices:
>"Time and again businesses and other commercial entities have claimed a constitutional right to discriminate and time and again this court has courageously stood up to those claims. Until today. Today, this court shrinks.
>"The lesson of the history of public accommodations laws is ... that in a free and democratic society, there can be no social castes. ... 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 a[nother].'"
I of course believe that the dissenting justices are right. Utilizing the same logic as Smith a person who meets the "custom product" and "expression" criteria (which are woefully easy to satisfy, Smith designs *web pages* for example) could discriminate against any protected class - race, color, religion, sex (including pregnancy, sexual orientation, or gender identity), national origin, age (40 or older), disability and genetic information (including family medical history).
I believe the 14th Amendment (and indeed most anti-discrimination law) has been gutted by this decision. Give me some hope that bigots don't now have carte blanche to discriminate in America provided they jump through a couple hoops in order to do so.