Colorado is once again the frontline of the legal battle over whether reactionary small business owners have the right to discriminate against oppressed sections of the population. For the last decade, the Christofascist alliance of small business owners, reactionary clergy, and extreme-right big capitalists, has had their sights on the Colorado Civil Rights Commission — that is, ever since it ordered Masterpiece Cakeshop to bake a wedding cake for gay patrons.
This (un)Holy Crusade is spearheaded by the so-called Alliance Defending Freedom (ADF), which has acted as the vanguard of Christofascism across the country since its founding in 1993; this non-profit legal advocacy group has had its nefarious tendrils creeping through courts across the country, such as funding litigation against the ACLU in its early years. Since 2012, the ADF has shifted to a direct litigation approach in order to promote its agenda of outlawing abortion, same-sex marriage and adoption, and trans-inclusive bathroom policies, while supporting Christian practices in schools and government. In the 2018 Masterpiece Cakeshop v. Colorado Civil Rights Commission case, Kristen Waggoner, CEO of the ADF and a licensed minister of the pentecostal Assemblies of God denomination, defended the bakery’s right to discriminate. To her dismay, however, the Supreme Court had declined to set a precedent about the “constitutionality” of the Commission’s anti-discrimination laws.
But now, thanks to the present Supreme Court, stacked with extreme-right fascist Trump appointees set on promoting a reactionary, business-first agenda, this (un)Holy Alliance has finally gotten its way. In June, the Supreme Court ruled in its 6–3 303 Creative LLC v. Elenis decision, that any “creative” business has the right to discriminate against potential clients — refusing service on the basis of bigotry. All the owner needs to do is claim that the Commission has violated their first amendment right to “free speech” by compelling them to “say” something they disagree with. Specifically, the court ruled that Colorado-based Web Designer Lorie Smith could discriminate against same-sex couple patrons on the mere pretense that she might, one day, be asked to make a website for a gay wedding.
At first glance, the narrative appears to be that of a plucky, upstart, arch-reactionary web design firm. But 303 Creative LLC isn’t just a small business owned by Lorie Smith. To untangle the web of Christofascist intrigue, we have merely to see who argued her case before the Supreme Court and who has funded the litigation, and we will find our old enemy, Kirsten Waggoner, and her vehicle, the ADF. Smith has put her business at the beck and call of a Christofascist cult and, with the court’s complicitly, used a false controversy to establish a legal precedent that is disastrous for marginalized people throughout the U.S. Empire.
According to Smith’s (really, Waggoner’s) request for an injunction, she wanted to include the following message on her website: “I will not be able to create websites for same-sex marriages or any other marriage that is not between one man and one woman. Doing that would compromise my Christian witness,” whereas the Colorado Anti-Discrimination Act specifically prohibits “all ‘public accommodations’ from denying ‘the full and equal enjoyment’ of its goods and services to any customer based on his race, creed, disability, sexual orientation, or other [protected] trait[s].” Smith’s ludicrous claim was that by not allowing her to create a business where she can discriminate, the state was implicitly “compelling her speech.” Moreover, despite the fact that the court filings included a falsified request for a gay wedding website — in other words, despite the fact that Smith lied about having received such a request — the court nevertheless ruled in her favor. The Supreme Court thereby waived its own “standing” requirement, purportedly the very basis of the legitimacy of its rulings.
The precedent gives the Christofascists exactly the lever they need. According to the Supreme Court’s ruling, a business owner has the right to discriminate against any protected group — mixed-race couples, non-Christian couples, etc. — so long as they can invent a “religious” justification for their bigotry. This effectively negates the “Equal Protection” clause of the Fourteenth Amendment to the U.S. Constitution, ensuring “equal protection under the law” to all citizens. It negates decades of civil rights victories, going back to the 1960’s Civil Rights Movement, and earlier, to Reconstruction. The court is paving the way for the return of the Green Book South, in which Black and Jewish people had to keep directories of hotels that would accept their patronage when they traveled through the former Confederate slave-states of the South.
What of the qualification that the discriminatory business must be “creative” or “expressive”? Supposedly this stipulation should prevent a business like transportation or supermarkets, which provide generic commodities, from discriminating. Actually, the court agrees that this qualification is meaningless. When addressing a prior Supreme Court case concerning the right of the Boy Scouts to expel James Dale, a gay scout leader, the present court agreed that:
Mr. Dale argued that New Jersey’s public accommodations law required the Scouts to reinstate him… The decision to exclude Mr. Dale may not have implicated pure speech, but this Court held that the Boy Scouts “is an expressive association” entitled to First Amendment protection… And, the Court found, forcing the Scouts to include Mr. Dale would “interfere with [its] choice not to propound a point of view contrary to its beliefs.” [Emphasis added.]
Furthermore, not every service or commodity which is essentially non-generic constitutes an expression of speech. A floral arrangement is a customized artistic expression, but one could hardly argue that it can communicate an idea as complex as whether or not homosexual marriage is acceptable (unless, perhaps, one arranges the flowers into letters).
The most troubling aspect of the 303 Creative LLC v. Elenis ruling, however, is the Supreme Court’s tacit suggestion that prohibiting businesses from utilizing certain kinds of speech is the same as compelling speech. Ms. Smith did not have to start a business, let alone a wedding-themed one; if she wanted to retain her right to privately hold bigoted views, she should not have started a business that serves the public. We are expected to believe that someone with a degree of social power over others, someone with capital, is a victim of oppression for being ordered not to discriminate against the oppressed. Ridiculous! In its pretense of impartiality, the rule of law purportedly establishes equal standards for all people, regardless of differences in social power. But in an nonegalitarian society, the law cannot be egalitarian. A worker can be compelled to communicate ideas with which they disagree at their job, but a business offering public services cannot, according to the court, be prohibited from discriminating in accordance with its owners’ prejudices. A business is a kind of power over others; the business owner is not truly a public servant, lorded over by the mob, but a petty tyrant over their means of production, which is only theirs by the virtue that it isn’t yours.
We cannot understate the importance of the fact that Ms. Smith had no standing to bring her case before the court, and, furthermore, that the court made the unprecedented decision to waive its own standing requirement. Ms. Smith chose to put her business at the disposal of a fascist conspiracy so that this case could be brought to trial for the sole purpose of allowing a fascist-captured court to preemptively abrogate anti-discrimination laws. Why now? Why are the representatives of the capitalist class in the courts so desperate to approve this measure despite its transparently tenuous foundation? One might be tempted to believe, as the recently deceased “Unabomber” Theodore Kaczsynsky did, that the circuit of capital accumulation is not only compatible with, but positively dependent on the proliferation of democratic rights. After all, the expansion of the available market and consumer base is certainly positively correlated with total profits — why should businesses want to self-impose limits on who it can serve? But the fact is that they do, in fact, desire exactly that. The history of settler apartheid regimes has repeatedly proven how dividing the working class into different strata, and setting them against each other by encouraging settler chauvinism and settler class collaboration, facilitates capital accumulation by the fact that it converts the settler workers into reactionary agents in the class struggle. By privileging one stratum with increased social status, rights, and quality of life — by creating parallel but disparate circuits of capital accumulation within the populations — the long-term interests of capital are ensured. Thus, chauvinism is not some inefficient aberration of the capitalist class’s interests, as Mr. University Bomber claims, but an authentic expression of the bourgeoisie’s need to forestall the revolution.
Capital is not merely a cold and rational mechanism for meeting the needs of the proprietor, but also a social power over others. The individual capitalist is like a dragon lording over his hoard. To him, the bed of gold on which he reposes is not merely some inert fortune. It is the very stuff of his might. He therefore regards any restrictions on how he wields this power as an unjust imposition on his own freedom, as an attack on his very being. The capitalist has wrung his wealth by violence and theft, just as the dragon has devoured men and scorched villages. He knows that each coin was bought with blood, precious beyond measure, and, in our corrupt republic, is his to do with what he will. The freedom of the people means, to the U.S. government, nothing; the freedom of Capital, the freedom of the expropriators of the people, everything.
The Supreme Court’s ruling is by no means a win for “free speech,” but rather a concession to the most reactionary elements of the capitalist class. The Christofascist (un)Holy Alliance will not stop until it has, through the power of the court, eliminated every last democratic right, every last legal protection of the civil rights of the working class and the oppressed sections of the population, and until it has eliminated every last restriction on its own “right” to purchase, exploit, and dispose of labor at will, while enforcing its own Christofascist morality on the public.
