By
In the Supreme Court’s recent ruling in 303 Creative v. Elenis, the Republican-appointed majority gave businesses a license to discriminate. So it’s not surprising to see a business discriminating.
Yet, there’s reason to think that the rank discrimination making headlines in the wake of that suspect ruling isn’t actually protected by it.
For context, we’re talking about an anti-trans hair salon in Michigan. In a since-deleted Facebook post, Studio 8 Hair Lab in Traverse City said:
If a human identifies as anything other than a man/woman please seek services at a local pet groomer. You are not welcome at this salon. Period.
Should you request to have a particular pronoun used please note we may simply refer to you as ‘hey you’. ...
This is America; free speech. This small business has the right to refuse services. ...
The salon’s owner, Christine Geiger, expanded on her discrimination in a Facebook comment, writing: “I have no issues with LGB. It’s the TQ+ that I’m not going to support. For those that don’t know what the + is for, it’s for MAP (Minor Attracted Person aka: pedophile).”
It’s easy to see why someone who holds such views might feel emboldened by the Supreme Court. But whether the 303 Creative ruling blesses her discrimination is another matter.
True, there are similarities between the discrimination at issue in 303 Creative and over at the fever swamps of Studio 8. In the 303 Creative case, Lorie Smith supposedly wanted to make wedding websites but worried, as a Christian, that she’d have to make them for same-sex weddings. Eliminating that worry, the Supreme Court’s ruling gave her a pass on free speech grounds.
Now, with Geiger, we have a hairstylist — a groomer, if you will — likewise discriminating based on gender.
But wait, would the high court really give First Amendment speech protections to hairstyling?
Sure it would. The court just ruled on the basis that making websites is speech. The court previously said money is speech. Anything can be speech if it serves a court majority’s purpose.
Yet that doesn’t mean Geiger is necessarily protected by 303 Creative. That’s because of the disingenuous notion underpinning the case, which is that Smith was totally happy to serve all customers equally — she just couldn’t convey certain messages in violation of her beliefs. In reality, of course, it’s same-sex couples who get same-sex wedding services.
Indeed, the Alliance Defending Freedom, which represented Smith, also represented the baker in the similar Masterpiece Cakeshop case and pushed the same fiction there, saying the client “serves all customers. He simply declines to create custom cakes that express messages or celebrate events in violation of his deeply held beliefs.”
They want to eat their cake and have it, too, discrimination-wise.
So a problem that Geiger and others could encounter is their honesty. That is, failure to cloak their discrimination under a neutral fiction could make their lawyers’ and the Supreme Court majority’s jobs more difficult.
Not that we should doubt the court is up to the task of protecting Geiger’s discrimination. It might just have to get a little creative.