Free Speech Is a Gay Right

Thoughts from a lesbian lawyer on last week's Supreme Court ruling

Photo by Matt Popovich on Unsplash

Written by Blue State Lesbian

I’m the type of lawyer who’s a true believer in what I do. I don’t mean I believe my clients are always right, or I’m diehard for a particular cause. No, I believe in arguing. Arguing is how people figure out the truth, and it’s fun. I love it when my friends express ideas I find offensive or wacky because it means we can argue. So I was pleased on Friday to see that the Supreme Court had protected the right of a Christian graphic designer to refuse to produce gay wedding websites. I need loons like her around, saying exactly what they think, to fuel my arguing habit.

But wait. According to Sonia Sotomayor, a liberal justice writing in dissent, the ruling made Friday “a sad day … in the lives of LGBT people.” 

Hey! But I’m an L person! 

Sotomayor has been lauded by liberals for displaying empathy. Her schmaltzy dissent in this case reads like she’s trying to prove she’s still got it. After presuming that gay people cry over free speech victories, she blunders on about the “ostracism” we feel. But she never considers the feelings of people like the graphic designer who hold a viewpoint their peers want to censor. This besieged population used to include practically all out gay people, and lately includes gender-skeptical progressives like me.

The case, 303 Creative LLC v. Elenis, concerns a civil rights statute in Colorado that aims to protect certain categories of people, including gays, from discrimination by businesses. The graphic designer worried the state would prosecute her under the civil rights statute if she offered to produce websites for opposite-sex couples’ weddings but not same-sex couples’ weddings. So she sued Colorado. The state agreed with her that her work counted as “expressive activity” under the First Amendment of the U.S. Constitution. But it argued that an exception to the First Amendment applied because the burden on the graphic designer’s freedom of speech, if the government forced her to create pro-gay websites for customers, was “incidental.”

Last week, the Supreme Court ruled 6-3 that the burden would be more than incidental, so the First Amendment protected the graphic designer. Sotomayor wrote in dissent (on behalf of herself and the other two liberal justices) that the burden on the graphic designer would be merely “incidental.” She would let the civil rights statute, which stands for “equal dignity,” take a bite out of the constitutional ideal of free speech.

Sotomayor sells the need for constitution-eating civil rights statutes by pivoting to a different area of law, hate crimes. Her examples: Matthew Shephard and Pulse nightclub. Both of these atrocities were presumed to be rooted in anti-gay bias at the time, but later reporting revealed that interpretation was likely wrong. Violence against gay people is a real problem. Sotomayor’s failure to name an actual occurrence of it is emblematic of her shallow engagement with gay history and gay life.

Even though 303 Creative has nothing to do with trans issues, Sotomayor shoehorns gender in repeatedly. She uses the word “drag” four times, including in a history of Stonewall. She laments: “Around the country, there has been a backlash to the movement for liberty and equality for gender and sexual minorities. New forms of inclusion have been met with reactionary exclusion. This is heartbreaking.” But the graphic designer is not part of some fresh new backlash – religious opposition to gay marriage has something of a history. It’s almost like Sotomayor wishes the case were about something trendier. Something like: “transgender people [are] particularly vulnerable to attack.” Let me just repeat – this case is about gay wedding websites. A good legal argument dives deep into the facts of the case at hand to tell a story that can change people’s minds. Sotomayor isn’t playing that game. It seems more like she dove into first-brick discourse to tell a story that could go viral. (It won’t.)

In a rare moment of lucidity, Sotomayor discusses an almost on-point scenario where a funeral home rejects a corpse for being gay. The deceased’s family has to scramble for alternate accommodations. (The court’s ruling in 303 Creative wouldn’t protect a bigoted funeral home since cremation isn’t an expressive activity. Well, maybe the funeral home could win the right not to say “I’m sorry for your loss.”) She concludes: “This ostracism, this otherness, is among the most distressing feelings that can be felt by our social species.” 

Sure, getting turned away from a business can feel distressing. But so can being censored and forced to say things you don’t believe. Now that over 70% of Americans support same-sex marriage, I imagine the graphic designer from 303 Creative often feels a sense of “otherness.” And I empathize, because I hold taboo views myself: I believe gender ideology is a scam that targets gay youth, sex changes for minors should be banned, drag queens are cringe, and sports and prisons should be segregated by sex. When people assume I believe the opposite, because all good liberals do, I feel distressed. When the media portrays opponents of youth sex changes as anti-science, I feel ostracized. And when I see the gay guys at work sneering at “cisgender girls” who want males out of their sports, I want to punch them in the – I mean, I feel sad.

Sotomayor places herself in the mind of a homosexual: “If I reveal my identity to this coworker, or to this shopkeeper, will they treat me the same way?” She concludes about us: “It is an awful way to live.”

I don’t think any of my coworkers, or any shopkeepers, treat me worse because I’m gay. But I skip LGBTQ work events because I’m afraid I’ll end up arguing about gender. In the last few years I seem to have lost some friends who disagree with me about gender. I quit Democratic Socialists of America in part because pronoun rituals made my skin crawl, but abstaining was considered hateful. I can’t advertise for like-minded lesbians to date because the apps might deem my profile “transphobic” and ban me. I worry about my boss finding out how I think because she has a trans child. I worry about my hair salon finding out because the employees have face piercings. 

If Sotomayor is going to privilege feelings over legal analysis in her judicial writing, she should at least consider everyone’s feelings.