Opinion |  The Supreme Court Has Opened the Door to Discrimination in 303 Creative.  Here's How The State Can Slam It.

The Supreme Court sided with a Christian graphic designer who refused to create a wedding website for gay or lesbian couples. The results are a bit surprising. Writing for the conservative majority six justice, Neil Gorsuch said that Colorado's anti-discrimination law violated the designer's right to free speech because the state “attempts to force a person to speak in a way that agrees with his views but goes against his conscience on an issue.” very important.”

Decision in 303 Creative v. Elenis is the latest in a long-running battle between religious business owners and the state trying to protect the LGBTQ community. In 2018, courts faced similar questions when a Colorado baker violated the same anti-discrimination laws by refusing to bake a wedding cake for a gay couple. The court ruled in favor of the baker narrow fieldeschewing the broader free speech question.

It has now answered that question in a very significant verdict. More than 20 states, including New York and California, have anti-discrimination laws like Colorado. By creating the freedom of speech carved out of this law, the court's ruling threatens to diminish a vital tool in efforts to protect the LGBTQ community in the face of hatred and violence.

In both this case and the one involving the Colorado baker, the plaintiffs were represented by attorneys from Freedom Defense Alliancewho describes himself as “protecting freedom of religion, freedom of speech, sanctity of life, parental rights and God's plan for marriage and family.”

Verdict 303 Creative is legally dubious. Lorie Smith, the graphic designer in the case, was not compelled to speak under Colorado's anti-discrimination laws; there he is it was his own choice to open his business to the public that fueled the legal requirement that he treat gay and straight customers equally. But the court has forged ahead in another decision that projects uncompromising certainty.

However, the court's decision is not a joke. Progressive states have an important solution: They can amend their laws to continue protecting gay and lesbian customers from discrimination without coercion from religious business owners. Here's how.

During this time, Ms. Smith has described the First Amendment injury as coercive “to personally design and actively design, manufacture and publish” a website disclosing a message he disagreed with. That's how the court understood its First Amendment rights, too: It deemed Colorado's attempt unconstitutional to “force a person to speak contrary to his or her beliefs on a significant personal matter.” confession.”

Therefore, the state can continue to prohibit sexual orientation discrimination, which is repugnant wherever it occurs. But they should change their laws to allow business owners like Ms. Smith, who avoided personal involvement in some of the designs, had to choose between completing the designs or delegating them to contractors or independent employees who did not share the same concern. The amended law should also clarify that business owners need not affix their name or brand to such designs.

This simple compromise was supported by a prominent precedent. Shortly after the Supreme Court issued a marriage equality ruling in Obergefell v. Hodges, a county clerk in Kentucky named Kim Davis refused to issue a same-sex marriage license. Just as Ms. Smith at 303 Creative, Ms. Davis debate that being forced to issue a marriage certificate would violate her “right to free speech by forcing her to express messages she finds objectionable.”

For a moment, Ms. Davis for issuing a marriage certificate sent him to prison. But he and the State of Kentucky eventually reached a reasonable middle ground. While Ms. Davis refused Alone issue a same-sex marriage certificate, someone else in his office did in place. In turn, state lawmakers in Kentucky enacted laws signed by the governor, a Republican, that is remove the names of district clerks from the marriage certificate.

The result is a win-win: No gay or lesbian couple is denied equal treatment, and no officer with a moral objection to same-sex marriage needs to issue a marriage license in person. By amending their anti-discrimination laws, states can make similar compromises for religious business owners and the gay and lesbian customers they serve.

Some may argue that simply asking a business owner like Ms. Smith to delegate the design of gay couples to other employees or contractors would still violate the First Amendment. But even Ms. Smith has dismissed the preposterous statement: He acknowledged, to his credit, that he would gladly refer gay and lesbian couples to other designers. The argument also lost in the completed free practice precedentstating that the delegation option is permissible so long as it is exercised impartially, regardless of the beliefs of any business owner.

Given the state of our politics, it's all the more tempting to view high-profile Supreme Court cases as an all-or-nothing battle. And lately, it feels like those who are the target of social discrimination are being targeted too often There isn't anything.

Yet that is only true if we allow the court's conservative supermajority to rule us unopposed. The Supreme Court ruling need not be the final chapter in our story. People often maintain a powerful means of protecting themselves through reasonable legislatures. Just last year, for example, Maine enacted a landmark amendment to its own anti-discrimination law that averted the worst consequences of a major Supreme Court decision that threatened the wall between church and state.

So the Supreme Court staggered further and further out of reach mainstream American values, lawmakers across the country must continue to act to circumvent the judiciary in the ways legally permitted. They can start by striking a reasonable and precedent-based compromise between the expressive freedom of religious persons and the right of American gays and lesbians to equal status under the law.

Aaron Tang (@AaronTangLaw) is a law professor at the University of California, Davis. He is the author of upcoming book “Supreme Hubris: How Overconfidence Ruined Courts—and How We Can Fix It.”