US Supreme Court Could Rain on June’s LGBTQ+ Pride Parades

Pride Month is here, and while there is much to celebrate, there is also cause for concern. This year, as we commemorate past achievements such as the national recognition of same-sex marriage during the 2015 Pride Month, we can’t escape the shadow of numerous efforts to use the law against the LGBTQ+ community.

According to a tracker provided by the ACLU, this June is blemished by more than 490 anti-LGBTQ+ bills threatening everything from basic health care to bathroom use and available books. This month, the risk of harm and humiliation is looming large.

In her bestseller, “Atlas of the Heart,” researcher Brené Brown defines pride as “a feeling of pleasure or celebration related to our accomplishments or efforts.” And indeed, there is much to rejoice in 2023, including a record number of elected lawmakers in the 118th Congress who identify as lesbian, gay, or bisexual and a growing list of transgender and otherwise non-cisgender elected officials.

Unfortunately, the US Supreme Court stands to rain on the parade this month. When it releases its decision in 303 Creative v. Elenis, the court may decide if business owners can refuse to serve LGBTQ+ clients while serving everyone else, despite laws that forbid discrimination on the basis of sexual orientation or gender identity.

While I hope for a miracle, there are strong indications that the court’s conservative supermajority is bent on blessing and legitimizing this type of discrimination.

First, it’s worrisome that the Supreme Court decided to even hear the case. The high court already clarified in Masterpiece Cakeshop that religious “objections do not allow business owners … to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”

Although the decision in Masterpiece Cakeshop also clarified that the “equal access” principle does not justify state hostility to religious views, there was no reason to discuss the issue again in a case lacking any state actions such as 303 Creative. That is, unless the justices’ goal is to go further in permitting business owners to refuse service to the LGBTQ+ community.

In addition, the Alliance Defending Freedom—the legal advocacy group representing the business in this case and similar owners in other cases litigated around the country—succeeded in devising a legal strategy that precludes the participation of LGBTQ+ voices in crucial cases that would dramatically impact them.

For example, in 303 Creative, the legal action was taken preemptively, before the suing business rejected LGBTQ+ clients. The business owner claimed that if and when it denied such clients in the future, Colorado would respond with legal measures. In this way, the business owner was able to tell their story without giving the LGBTQ+ community the same platform to expose and illuminate how other humans would be harmed.

During the oral arguments, the bad signs continued. The conservative justices seemed to side with the web designer who said they had a constitutional right to create wedding websites only for opposite-sex couples.

As the oral arguments proceeded without LGBTQ+ parties in the courtroom, the advocates and justices seemed to use harsher—even humiliating—language towards that community.

When ADF’s lawyer described how some religious business owners view same-sex marriage, she used—without objection—the offensive term “false” not once but four times. She emphasized, for example, that her client “believes same-sex marriage to be false.”

She also claimed that “when you’re requiring a speaker to create a message to celebrate something that they believe to be false, you’re compelling their speech.”

Worse, a similarly disrespectful description came from the bench when Justice Samuel Alito inquired about a hypothetical community in which “99 percent of the public” believed that “same-sex marriages are bad.” Sadly, these blunt negativities were loudly expressed without objection from anyone in the courtroom.

While the oral arguments in Masterpiece Cakeshop explicitly raised the issue of long years of humiliation on the side of LGBTQ+ people and expressed direct concern for the affront to the gay community,” the hearing in 303 Creative was completely devoid of such sentiments. Even the liberal justices, who sounded reluctant to open the floodgates to discrimination, didn’t raise the injuries to LGBTQ+ people that would certainly follow.

Next, doubling down on the invisibility of actual victims, the ADF framed its client as a free-spirited entrepreneur chased by the state. This victimhood narrative was fast adopted by Justice Neil Gorsuch, who repeatedly insisted that Colorado coerced the baker from Masterpiece Cakeshop to go through a “re-education program,” a known and extreme conservative talking point against same-sex marriage.

These and other signals show that many reasons for celebration are at risk this Pride Month. Still, Brown’s definition of pride reminds us that efforts count. Accordingly, the herculean efforts to thrive despite a barrage of attacks and biased judiciary can become the center of this year’s festivities.

Besides joy, Pride parades offer LGBTQ+ people the dignity, visibility, and voice the Supreme Court stands to suppress.

The case is 303 Creative v. Elenis, U.S., No. 21-476.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Hila Keren is an Associate Dean for Research and Professor of Law at Southwestern Law School in Los Angeles. She specializes in the law’s impact on human emotions and civil rights.

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