One year after its ruling to erase abortion rights, the conservative-stacked US Supreme Court has further underscored its determination to push society sharply to the right by scrapping long-established progressive policies. Along with its recent blow to affirmative action, the court recently ruled that some business owners can refuse to serve gay couples on religious grounds.
Just one day after the court’s affirmative action ruling, it ruled that a Colorado graphic designer – Lorie Smith – was within her rights to refuse to design a website for a same-sex couple due to her Christian beliefs. However, it now appears that the original request Smith received may well have been a complete fabrication.
Supreme Court: ‘Free speech’
The Supreme Court rooted its decision in the US Constitution’s guarantee of free speech. It said that Smith could not be forced to create products that effectively forced her to say things she did not agree with.
The decision focused on a limited category of commercial activities, like artists or businesses creating content. However, it added to the accumulating decisions by the court in favor of Christian Americans projecting their beliefs onto society at large.
For critics, it was a shocking erosion of anti-discrimination laws, and opens the door for business owners generally to discriminate against customers who don’t fit their moral or social belief set.
Sonia Sotomayor, a justice on the court’s liberal wing, wrote:
Today, 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.
Sarah Kate Ellis, the chief executive of the LGBTQ lobby GLAAD, said the decision would “bring harm and stigma” to her community.
She added that the ruling:
is yet another example of a Court that is out of touch with the supermajority of Americans.
Deepening the shambles of the case, on 3 July it emerged that the original request for a website may have been fictitious. When the case was originally filed in 2016, before it reached the Supreme Court, lawyers for the state first argued for its dismissal. They held that Smith must first be harmed by anti-discrimination laws.
Further, they said that Smith must receive a request, deny it, and then receive a complaint. However, Smith didn’t even intend to start producing websites until the pre-emptive case was resolved.
In return, Smith submitted that she had received such a request. Allegedly, it was from one ‘Stewart’ and his future husband. Smith’s lawyers:
maintained that she didn’t have to be punished for violating the law before challenging it. In a February 2017 filing, they revealed that though she did not need a request to pursue the case, she had, in fact, received one. An appendix to the filing included a website request form submitted by Stewart on Sept. 21, 2016, a few days after the lawsuit was filed. It also included a Feb. 1, 2017, affidavit from Smith stating that Stewart’s request had been received.
However, later revelations cast this opening piece of evidence into doubt. Associated Press reported that:
Smith named Stewart — and included a website service request from him, listing his phone number and email address in 2017 court documents. But Stewart told The Associated Press he never submitted the request and didn’t know his name was invoked in the lawsuit until he was contacted this week by a reporter from The New Republic, which first reported his denial.
Stewart himself added that:
I was incredibly surprised given the fact that I’ve been happily married to a woman for the last 15 years
His contact information, omitting his last name, was given as part of the court documents. However, the fact that the original request was bogus wasn’t enough to get the case thrown out. Smith’s lawyer, Kristen Waggoner, said:
It’s undisputed that the request was received. Whether that was a troll and not a genuine request, or it was someone who was looking for that, is really irrelevant to the case.
Little chance of reform
The revelation of the bogus evidence isn’t the only high-profile blunder calling the Supreme Court’s judgement into question. A series of embarrassing revelations about the largesse accepted by certain justices, all of whom are appointed for life, has recently raised further public ire.
The court’s most conservative member, Clarence Thomas, was found to have accepted luxury holidays over a period of decades. They came from a billionaire known for his donations to Republican causes.
Each controversial decision by the court has been accompanied by calls for reform. This could involve either by increasing the number of judges or by limiting the length of their terms.
However, such profound change – opposed by conservatives – appears unlikely. Republicans run the House of Representatives. Democrats need the support of at least nine Republicans in the Senate to pass most legislation in any case.
President Biden was initially open-minded towards restructuring. He launched a commission in 2021 to study the possible reform of the court. However, he has come out against tinkering with the make-up of the bench, saying:
That may do too much harm. If we start the process of trying to expand the court, we’re going to politicize it maybe forever in a way that’s not healthy.
At least for now, it appears that progressive Americans are stuck with a deeply conservative Supreme Court. What’s more, it is a court which is clearly more than willing to scrap decades of established progressive policy – even on the grounds of trumped-up evidence.
Additional reporting via Agence France-Presse
Featured image via Unsplash/Alvin Mahmudov