At the end of every June, the U.S. Supreme Court issues a swarm of decisions. One of the disturbing trends of this term are the number of cases before the Court that seek to undermine civil rights based on deceptive “facts.”
One example is 303 Creative v. Elenis, also known as the gay wedding website case. This “website company” came into existence to challenge Colorado’s Anti-Discrimination Act. Anti-discrimination laws make it so that when someone operates a business, they cannot deny service to certain classes of people just for being themselves. You can deny service to someone who is intoxicated or belligerent, but you cannot deny service to someone for being Christian, Black, having a disability or based on their sex. Some states also include being LGBTQ+ as a protected class.
Before 303 Creative built a single website, let alone a wedding website, the owner challenged the anti-discrimination law because she might be asked to build a gay wedding website. After the lawsuit was filed, she claimed someone named Stewart asked for a gay wedding website, but it turns out the request was fake and “Stewart” was actually a straight, married man.
While the LGBTQ+ community was the initial target, this case opens the door for anyone to discriminate against any class of people as long as they claim deeply held beliefs. The language around segregation was also steeped in religious rhetoric and those who would like to reinstate legal bigotry now have the roadmap for how to overturn all nondiscriminatory laws.
Another important case was the effort to end affirmative action: Students for Fair Admissions v. Harvard. Students for Fair Admissions was a major undertaking by Edward Blum, who created it to recruit plaintiffs to challenge affirmative action. After several attempts to overturn affirmative action with white plaintiffs weakened but did not end the program, he recruited Asian and Asian American students. The court may have ruled against affirmative action anyways, but arguably having plantiffs of color gave them political cover.
Between 303 Creative’s weakening of anti-discrimination laws and the case that ended affirmative action in higher education admissions, it is clear that efforts to reinstate racial segregation are coming.
The dissents of Justices Sotomayor and Jackson in the affirmative action case powerfully discuss systemic discrimination and the efforts to overcome legalized oppression. Their dissents show us that the narrative is changing. More and more people are understanding the systemic nature of oppression and are shifting the story, and the systems of advantage will be challenged — the NAACP already filed a lawsuit to end legacy admissions, which overwhelmingly benefit white people.
Read more of the July 19-25, 2023 issue.