LOS ANGELES — Forty-five years ago, Sue Englander went door-knocking in San Francisco to tell anyone who would listen that she was a proud bisexual woman who supported LGBTQ+ rights.
Other queer activists were fanning out across California to do the same as part of a 1978 campaign to defeat a ballot measure that would have made it illegal for gay men and lesbians – and possibly their allies – to teach in the state’s public schools.
The activists saw the measure as an attack on LGBTQ+ teachers and queer people’s First Amendment right to free speech, so they used that same right to share their stories and shift public sentiment against the measure – which voters ultimately rejected.
“We were able to overcome, and stop in its tracks really, this attempt to silence not just teachers but the expression of support for LGBTQ rights,” said Englander, now a 71-year-old history lecturer at San Francisco State University.
It’s a lesson that came back to Englander, she said, after the U.S. Supreme Court used the law in a very different way – ruling that a Colorado wedding website designer with religious objections to same-sex nuptials had a First Amendment right to refuse service to queer couples.
The high court’s June 30 ruling in 303 Creative vs. Elenis was a clear blow to the LGBTQ+ rights movement, raising questions for queer people and other minorities about where they might be next denied service. But it was also a reminder to keep fighting, Englander said – that the battle over queer rights is far from over, and every defeat can be challenged.
“The Supreme Court does not necessarily have the last say,” said Englander, still defiant. “Don’t give up the ship.”
It’s a message being echoed by queer rights activists, scholars, lawyers, and litigants fighting for LGBTQ+ rights in courts all across the country.
In the court’s 303 Creative decision, Justice Neil M. Gorsuch, a President Donald Trump appointee, wrote that public accommodations laws born out of the civil rights movement that mandates public businesses and facilities be open to everyone equally are justified. He also wrote that newer anti-discrimination laws aimed at protecting LGBTQ+ people and other minorities “have done much to secure the civil rights of all Americans.”
Nonetheless, Gorsuch concluded that wedding website designer Lorie Smith’s work is sufficiently creative that it represents her speech and that the First Amendment, therefore, protects her from being forced by Colorado to create websites in a way that violates her beliefs.
“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,” Gorsuch wrote.
Some legal observers stressed that the ruling was limited – applying only to businesses in which the work product itself is creative and might constitute speech and not to more general services such as those provided by restaurants, hotels, and other public places.
Still, many LGBTQ+ advocates and allies expressed concern that the ruling would be used by a host of business owners to justify denying services to queer people.
In fact, such efforts are already underway.
Take the pending federal case brought by a substitute teacher who claims he was let go by a Catholic high school for being gay. A lawyer for the school recently wrote a letter to the court arguing that, if the First Amendment protects Smith’s decision to withhold business services from same-sex couples, it also “protects a church’s decision about who is religiously qualified to fulfill the mission of a religious school.”
In Texas, a judge who came under a judicial investigation for refusing to perform same-sex marriage ceremonies sued the court overseers behind the probe. She alleged the requirement that she perform such ceremonies just as she does opposite-sex marriage ceremonies violates her religious beliefs. Her lawyer recently submitted a letter to the court arguing the 303 Creative decision bolsters her argument.
A wedding photographer who is suing the city of Louisville, Kentucky, over its anti-discrimination law, alleging she shouldn’t have to photograph same-sex weddings, has cited the 303 Creative decision in her case too.
Combined with a massive wave of anti-LGBTQ+ legislation being put forward in conservative state houses in recent years, the high court’s ruling in 303 Creative and the more recent efforts to swiftly expand its scope have caused resentment, anger, frustration, and fear in the queer community.
But those in the thick of the fight for LGBTQ+ rights say such feelings – though legitimate – shouldn’t lead people to give up on the fight for queer rights, or on the role the American legal system has to play in bolstering the demands of protesters and organizers.
Because, they said, that same legal system has laid the foundation for queer rights for decades.
LGBTQ+ rights have never been a foregone conclusion in this country. Instead, they note, those rights are the product of persistence and resolve among queer activists and their allies – even in the face of powerful opposition, especially in the face of setbacks, often in a court of law.
Modern wins for the LGBTQ+ community, such as the Supreme Court’s 2015 decision upholding a right to marry for all, are built on more than half a century of legal victories won by queer people. And those wins form a strong legal foundation for LGBTQ+ rights upon which modern victories are continuing, said Kara Ingelhart, a senior attorney with Lambda Legal, one of the nation’s most prominent LGBTQ+ legal advocacy organizations.
Gorsuch also authored a ruling in 2020 that federal law prohibits employment discrimination based on sexual orientation and gender identity. It was considered a major victory for the LGBTQ+ community.
A federal judge recently tossed as unconstitutional a Tennessee ban on drag performances in public. Courts in several states have rejected broad bans on gender-affirming medical care for transgender youth, though an appellate court recently stayed an injunction on such a law in Tennessee — allowing it to be enforced as the legal fight over it continues.
“It’s a tough time,” Ingelhart said. “But we have been making strides.”
Carlos A. Ball, a Rutgers University law professor, and author of “The First Amendment and LGBT Equality: A Contentious History,” said the law has long been a tool for freedom in the queer community.
“Starting in the 1950s and 1960s, before any courts recognized that LGBTQ people had rights to privacy and equality, some courts, including the U.S. Supreme Court, recognized that gay men and lesbians had basic free speech rights that allowed them, for example, to publish magazines, advocate for policy reforms, and meet in public places,” Ball said.
Queer people exercising their free speech rights “made the LGBTQ movement’s later successes, including on marriage equality, possible,” he said.
Ball said the Supreme Court’s 303 Creative decision was a “radical departure” from legal precedent.
“Before [the decision], there was a well-established distinction in constitutional law,” he said, between what people who disagree with anti-discrimination laws can say about the laws and queer people and how they must treat customers when they open a business serving the general public.
“That distinction has now been eviscerated, to the detriment of equality rights and the enforcement of civil rights laws.”
Still, the First Amendment remains “a crucial source of protections for LGBTQ people,” Ball said.
Jim Obergefell was the lead plaintiff in the landmark Supreme Court case that established a right to marry for same-sex couples nationwide in 2015. In the 303 Creative case, Smith derided the marriage equality decision as driving America “away from God’s design for marriage.”
Obergefell called the 303 Creative decision a disgrace. He said it gives religious bigots a right to discriminate against other people under “the guise of freedom of speech,” which those same people will seek to exploit further.
“People who are opposed to the queer community and who are opposed to us enjoying any sort of equality are going to take this decision and run with it,” Obergefell said.
Obergefell said he sees the 303 Creative ruling as a betrayal by the court because marriage equality no longer truly exists if queer couples planning their weddings can be turned away by businesses such as Smith’s that are otherwise open to the public.
“I especially think about same-sex couples in rural areas,” Obergefell said. “Maybe there is only one bakery [in their town]. Maybe there is only one photographer. Maybe there is only one provider for whatever service, you name it.”
Though his name is attached to one of the greatest LGBTQ+ legal victories in American history, Obergefell said he worries about how the legal system will be used moving forward by the current conservative Supreme Court, which he believes is bent on reversing queer rights.
He urged LGBTQ+ people to defy the conservative right’s “determination to push us back into the closet, to take back every bit of progress we have made as a country on LGBTQ+ rights and civil rights.”
Ingelhart, with Lambda Legal, said she appreciated Obergefell’s candor about the threats and his call to action. Lawyers like her are fighting to build on decades of LGBTQ+ legal wins and hold the line against challenges to those rights – including any new ones that arise out of 303 Creative – but they can’t do it alone.
“I just hope people stand up together and speak up for each other and support our movement,” Ingelhart said. “It takes support from everybody for us to be able to do it.”
Groups such as Lambda Legal are litigating a vast array of queer rights issues — from cases challenging gender-affirming care bans to one challenging the long ban on people living with HIV serving in the military.
Every LGBTQ+ rights case is important because each victory bolsters the baseline argument that American law protects the rights of queer people, Ingelhart said.
“It’s important that in general people understand that LGBTQ people should be protected and that the law will be on their side,” Ingelhart said. “That’s why we’re in the courts so that there is pushback so that everybody is on notice that the entire community should be protected.”
Englander, in San Francisco, noted that in her lifetime, LGBTQ+ activists have managed to make astounding gains, shifting public sentiment on queer identity so profoundly that things that were once unthinkable — such as same-sex marriage — are now the law of the land.
And yet, in the last few years, that progress has seemed increasingly vulnerable. Millennials who came up in a world of increasing acceptance of LGBTQ+ people are seeing the trend shift, seemingly in the opposite direction, for the first time. Younger Americans are confronting a new level of animosity toward queer people.
Englander said that, for people in her generation, it all looks familiar.
It was extremely disheartening when the 303 Creative decision came down, she said, and the “devil” on her shoulder – her internal voice of pessimism – piped up fast.
“Dammit, I did this 50 years ago,” it said, of fighting such clear-cut anti-LGBTQ+ discrimination.
Almost as quickly, though, came the angel on her other shoulder, Englander said.
“Yeah, well, you know what? You just have to keep winning the same rights,” it said.
“Over and over again.”
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