Wednesday, July 12, 2023

Color me unsurprised that businesses are already using 303 Creative to discriminate

If a human identifies as anything other than a man/woman, please seek services at a local pet groomer. You are not welcome at this salon. Period.

Those are the words of Christine Geiger, the owner of Studio 8 Hair Lab, in a post on the business's now-deleted Facebook page. In a still-available comment on another Facebook page, Geiger says, "I have no issues with LGB. It’s the TQ+ that I'm not going to support. For those that don't know what the + is for, it's for MAP (Minor Attracted Person aka: pedophile)." Meanwhile, the business's private Instagram page describes itself as, "A private CONSERVATIVE business that does not cater to woke ideologies." 

We get the point. Geiger doesn't like transgender people and is using her religion and the Supreme Court's decision in 303 Creative v. Elenis to justify her discrimination.

In 303 Creative, the Supreme Court held, "The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees." In that case, the "protected speech" was a wedding website for a hypothetical gay couple. In her scathing dissent, Justice Sotomayor wrote, "The Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class." Justice Sotomayor explains further:

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."

Christine Geiger and Studio 8 Hair Lab will now test just how far the First Amendment will go to protect the rights of individuals and businesses to engage in "customized and expressive speech" to deny civil rights to others.

  • Is the cutting and styling of hair "customized and expressive speech" in the same manner as is creating a website? If so, then the Constitution protects Geiger's "no trans folks here" policy.
  • What about hiring individuals to work for you, is that "customized and expressive speech"? If so, then 303 Creative puts Title VII itself at risk.
  • If the First Amendment's protection of "customized and expressive speech" trumps the civil rights of LGBTQ+ individuals, what about the rights of Black people, another class the Constitutional similarly protects. Can individuals use the First Amendment to deny service to Black people as it permits the denial of service to LGBTQ+ individuals? And what about us allies? 
303 Creative answers none of these questions, but businesses that are anti-LGBTQ+ (and potentially anti-Black) will start to use SCOTUS's decision to push the envelope. 

No matter what the majority of this Supreme Court says, invidious discrimination is not one of our country's values. To quote another Supreme Court decision, "Discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life."

In her scathing dissenting opinion, Justice Sotomayor calls on "every business owner" to make "a choice whether to live out the values in the Constitution." I know my choice. What's yours?