Justice Sonia Sotomayor wrote in a powerful dissent that “the immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status.”
that “the immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status.”in the court’s history that it said a business open to the public has a constitutional right to refuse to serve members of a protected class—despite the fact that “Our Constitution contains no right to refuse service to a disfavored group.” She alsothat the opinion comes at a time of significant anti-LGBTQ backlash.
Sotomayor pointed out that the political context of the case means “the outcome is even more distressing.”Advocates had warned that this case was about much, much more than LGBTQ rights. Sotomayor underscored that fact in chilling detail, noting how businesses wouldn’t even need a religious objection to refuse people based on race, disability status, and more, because this case was brought on First Amendment grounds.
The decision threatens to balkanize the market and to allow the exclusion of other groups from many services. A website designer could equally refuse to create a wedding website for an interracial couple, for example. How quickly we forget that opposition to interracial marriage was often because “‘Almighty God. . . did not intend for the races to mix.’”, 388 U. S. 1, 3 . Yet the reason for discrimination need not even be religious, as this case arises under the Free Speech Clause.
Gorsuch waves away these claims in the majority, writing, “The dissent even suggests that our decision today is akin to endorsing a ‘separate but equal’ regime that would allow law firms to refuse women admission into partnership, restaurants to deny service to Black Americans, or businesses seeking employees to post something like a ‘White Applicants Only’ sign. Pure fiction all.” Gorsuch is basically claiming that the liberal women are being hysterical.
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