Strategic Planning
In the Legal Rendition of the Wild, Wild West
The CAMP Rehoboth Board’s Ad Hoc Strategic Planning Committee is wrapping up its work in collecting data that will help guide the Board in its strategic planning decisions. Meanwhile, the Supreme Court of the United States has handed down the latest in a long line of substantive due process cases in which it is effectively dismantling well-established constitutional law and principles to expressly authorize discrimination against protected classes. Think: upholding “don’t say gay” laws and prohibitions against providing basic health care to trans people, and gutting reproductive freedoms, to mention a few.
The majority’s ruling in 303 Creative v. Elenis has unmistakably broad-ranging implications for the personal dignity and economic integrity of persons in all protected classes, including those of us in the LGBTQ+ community. It’s the legal equivalent of the Wild, Wild West and it’s very scary.
In 303 Creative, the majority held that a business offering to the public so-called “creative services” such as website construction, can justify refusing to provide those services to LGBTQ+ people on the ground that doing so will impair its right to free speech. Bottom line? The majority opinion expressly authorizes American business owners to hang “no LGBTQ+ people here” signs in their virtual or actual storefronts.
The plaintiff in 303 Creative justified her wish to discriminate by pointing out that there are other web design businesses where gay couples can take their business. However, as Robert Hubble pointed out in the July 1, 2023, edition of his “Today’s Edition Newsletter,” this separate-but-equal argument “betrays a profound ignorance of the injury actually inflicted…against LGBTQ+ people.” Hubble analogizes such discrimination to the refusal in the 1960s of some lunch counter owners to give a seat to Black customers who wanted to order a cup of coffee:
…[T]he fact that the Woolworth’s store in Greensboro refused service to a single customer because of the color of his skin was the injury. It did not matter that he could buy a cup of coffee down the street or across town. The injury was the refusal to serve a customer on account of race. And it was an injury to every Black person in America, whether they entered Woolworth’s or not. Separate but equal is not equal. It is discrimination.
So, too, with the ruling in 303 Creative that a business can turn away an LGBTQ+ customer. It does not matter that the customer can go elsewhere; the injury is the refusal to serve that customer. And it is an injury to every LGBTQ+ person in America—whether they choose to patronize 303 Creative or not.
In addition to very real “legal” injury, the 303 Creative decision is also an assault on the personal dignity of every LGBTQ+ person. Allowing a business to say “you’re not welcome here” is a symbolic gut punch, and an incredibly demeaning one at that. Dissenting, Justice Kagan wrote (emphasis added):
Battling discrimination is like “battling the Hydra.” Whenever you defeat one form of…discrimination, another springs up in its place. Time and again, businesses and other commercial entities have claimed constitutional rights to discriminate. And time and again, this Court has courageously stood up to those claims—until today. Today, the Court shrinks.
Today is a sad day in American constitutional law and in the lives of LGBT[Q+] people. The Supreme Court of the United States declares that a particular kind of business, though open to the public, has a constitutional right to refuse to serve members of a protected class. The Court does so for the first time in its history. By issuing this new license to discriminate in a case brought by a company that seeks to deny same-sex couples the full and equal enjoyment of its services, the immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status. In this way, the decision itself inflicts a kind of stigmatic harm, on top of any harm caused by denials of service. The opinion of the Court is, quite literally, a notice that reads: “Some services may be denied to same-sex couples.”
In front of the backdrop of 303 Creative, the ongoing and stable presence of CAMP Rehoboth Community Center as an oasis in a sea of Court-sanctioned discrimination becomes undeniably important. Where we go from here is a matter for strategic planning, but our very existence provides a reassuring anchor and a strong voice to our community. Please help the Board to strategically plan the future by filling out the community survey, a simple 10-minute act of commitment. No matter where we go from here, we must ensure that CAMP Rehoboth Community Center remains “the heart of the community, where there is room for all.” ▼
Leslie Ledogar is CAMP Rehoboth Board Vice President.