The Backlash Continues: How Two Recent SCOTUS Rulings Pose a Threat to LGBTQ+ and Especially Trans and Gender Non-Binary Persons

Our Present Context

My research and analysis of the backlash against LGBTQ+ and trans inclusion since the Obergefell decision of 2015 legalized same-sex marriage, has convinced me that trans and gender non-binary persons exist as a newly created national political scapegoat of the far right. This isn’t to suggest that trans and gender non-binary persons, especially those of other marginalized and racialized identities, haven’t long faced discrimination, family abandonment, and violence. Still the hundreds of specifically anti-transgender or anti-LGBTQ bills proposed in this country since 2015 makes clear that the collective and national targeting of gender transgressive folks is taking a much different form than anti-trans efforts have taken in decades past. The evidence for this claim is no longer difficult to produce. Recent investigatory reporting on anti-transgender legislation, by journalist Erin Reed, identifies five levels of risk to trans and gender non-binary person by their home state, and also identifies safe havens for those who have these identities.  According to the most recent reporting, the level of risk identified as “Do Not Travel” includes only the state of Florida where, among other concerns, a trans or gender non-binary person could be arrested for using the restroom corresponding to their gender identity. The next category of states are identified as the “Worst States, “(KS, MT, OK, ND, TN, UT) and include bathroom laws and legislation that erases transgender identity from any form of legal documentation, putting trans and gender non-binary persons at great risk.  Categories of “High,” “Moderate,” and “Low Risk,” states follow and are characterized by the level of restrictive and dangerous legislation in place. Forms of legislation include bathroom bills, legal erasure, limits to health care for youth or adults, restrictions on gaining proper identification, the ability to change identification, etc.  The states identified as kinds of safer-havens for these targeted classes include CA, CO, CT, DC, HI, IL, MA, MD, MN, NJ, NM, NY, OR, VT, WA.  Thus, it is only in fifteen out of fifty states, or 30% of the States of this country that trans and gender non-binary folks can’t reasonably expect their safety and human rights to face infringement.[1]

Artist: Drew Martin

It is noteworthy that on January 6, 2021, Donald Trump Jr., in his speech to the crowd that later engaged in an insurrection at our National Capital, included disparagement of trans women. At the time I was stunned that attacking the dignity and legitimacy of trans women would warrant mentioning among talk of “rigged elections” and the victimhood of the former president.  Now, three years later, debating which civil rights will be curtailed on the basis of trans or gender non-binary identity has been a part, sometimes a significant part, of each of the GOP Presidential candidates’ debates. The accepted nominee of the GOP ticket, Donald Trump, is increasing his rhetoric against trans persons in his attempt to again win the presidency.  In a video released to social media, January 31, 2023, the former president promised his base, that his future administration is committed to marginalizing members of the trans and gender non-conforming community even more than he did in his previous administration. He promises that (presumably K-12) teachers will,

…promote positive education about the nuclear family, the roles of mothers and fathers and celebrating, rather than erasing the things that make men and women different and unique. I will ask congress to pass a bill establishing, that the only genders recognized by the United States Government, are male and female and they are assigned at birth.[2]

After promising to prohibit trans athletes from participating in sports and teachers from supporting trans students, he disregards the long and multi-cultural history of trans identities and instead likens anything but traditional heteropatriarchical cissexism to be conjured by the political left.

No serious country should be telling its children that they are born with the wrong gender. A concept that was never heard of, in all of human history, nobody has ever heard of this. What is happening today, it was all with the radical left invented it, just a few years ago. Under my leadership, this madness will end.[3]

Anti-transgender and anti-LGBTQ+ rhetoric is not just seen in presidential candidates, but among current law makers.  The late March 2024 bipartisan bill, needed to avoid a government shutdown, not just agreed to continue to pay the government’s bills, but in its over 1,000 pages included language prohibiting the flying of the Pride Flag at U.S. Embassies.  Risking a government shutdown and loan default over the Pride flag is as silly as it is symbolic.  This “compromise” with the group of far-right lawmakers however, resulted in less harm than their original proposal that included various anti-trans laws including a limitation on trans healthcare.[4]

The political climate has become toxic not just because of ongoing efforts to thwart the flourishing of gender transgressing adults and youth. The “War on Wokeness” targets immigrants, LGBTQ+ persons, women and their right to bodily autonomy, and the collegiate disciplines of Critical Race Theory, Gender Theory. Understanding the current political climate, especially as it impacts those minoritized based on sexual orientation or gender expression/ identity requires us to watch what politicians say, what legislation they support, and their tactics of dog whistling and chest-beating-virtue-signaling used to guarantee that they are the ones to slay the conjured dragon of dangerous “gender ideology” or “woke politics.”  Political speeches and performative legislative support are meant to be seen, to invoke both headlines and emotion. On the other hand, it has only become more recently noted that it the relatively quiet machinations of our legal system, including the appointment of judgeships, the usually unpublicized court rulings, and the nearly invisible non-events of rejecting a case for further consideration, that will increasingly impact those minorized through LGBTQ+ identity and other marginalizations.

My specific concern involves the widening of an understanding of freedom of speech as it is related to religious expression and its impact on those whose sexual or gender expression is not consistent with cisheteropatriachical and fundamentalist Christian norms. The two cases that I wish to focus on herein are not the only ones that have gained recent attention in terms of the broadening of religious expression. In “American Crusade, How the Supreme Court Is Weaponizing Religious Freedom,” Andrew L. Siedel, looks carefully at cases ranging from the Hobby Lobby Case of 2014, to Covid Era Cases involving mandatory vaccinations, to those that used religious freedom arguments as claim that racial discrimination is within their legal rights.[5]  I predict that the two cases of focus in this essay, Kennedy v. Bremerton School District, and 303 Creative et al. v. Elenis et al., will not be the last of those that increase the sphere of religious freedom to the detriment of other precious freedoms in ways that severely limit the ability for many of us, especially those that are trans, non-binary, or LGBTQ+, to live flourishing and dignified lives. These won’t be the last since the Supreme Court not only implicitly invites cases regarding religious freedom simply by its conservative majority makeup, but explicitly invite such. Recall Justice Thomas’ notorious invitation in his comments in the Dobbs ruling overturning Roe v. Wade (2022) that other rulings leaning on the 14^th Amendment should also be reviewed, including the Obergefell Ruling of 2015 proving marriage rights to all regardless of sexual orientation, Lawrence v. Texas (2003) that established the legal right to same sex intimacy, and even Griswald v. Connecticut (1965) that established the right of married couples to use contraception.  In this essay, I focus on two recent Supreme Court Cases; that of 303 Creative v Elenis in 2022 and Kennedy v. Bremerton School District in 2021.  Both cases, in very different ways, expand what is thought to be a freedom of religions expression and speech in ways that are legally unsound and morally dangerous.  I believe that these cases may come to be seen as precedent setting in years to come creating a cascading effect that will disadvantage many. I will clarify herein why I think the 303 Creative and Kennedy cases represent what will become a vice grip of increasing pressure on those who wish to express their sexual or gender identity in ways that vary from the cisheteropatrichal standard.  I fear that the walls are closing in on these forms of expression and will have serious ramifications for LGBTQ+, Trans, gender non-binary persons both in the school system and outside of it.  My analysis will proceed after a brief description of each case.

303 Creative v. Elenis

The case of 303 Creative v. Elenis in 2022 serves as an example of how the current Supreme Court has expanded freedom of speech as related to religious conviction and expression.[6]  This ruling broadens the reach of freedom of speech claims (regarding religious belief) to circumvent, or otherwise exempt obligation to the duty of Public Accommodation. In other words, businesses that involve some form of speech, in this case the creation of artistic web based content, can refuse to do business with individuals, even those of protected political status, if the business owner can make the argument that the speech (written or verbal) involved is condoning lifestyles or beliefs which are inconsistent with the business owner’s religious beliefs. Given that there are many ways that businesses employ various kinds of speech, the consequences of this ruling can be potentially very far reaching and have serious ramifications to marginalized groups, especially those of the LGBTQ+ community.

Arguments at the United States Supreme Court for Same-Sex Marriage on April 28, 2015 (Ted Eytan)

First a brief review of the specific facts of the case. Coloradan Lorie Smith felt called by God to go into the business of creating wedding websites.  This is not something she wished to do for friends or on a limited basis, it seems that she understood God’s plan to be that she engage in a for – profit web site design business which was fully open to the public. She wished to answer this spiritual call to action but was concerned that she would be seen as violating the Colorado Anti-Discrimination Act because she would refuse to create web pages celebrating same-sex marriages.  She also wished to be able to specify on her landing website, internet commerce’s equivalent of a store front, that she would only do business that resulted in webpages for traditional heterosexual marriages.  She believes that same-sex marriages are contrary to “biblical truth” [7] and believes that “marriage is a union between one man and one woman” and that this is her “sincerely held religious conviction.”[8]  What is thought to be relevant, according to the opinion of the court, is that it is not the case that Ms. Smith wishes to discriminate against any individuals of protected status (the Colorado Law protects LGBTQ individuals), because, she argues, is open to doing business with individuals of the LGBTQ community, she is just unwilling to celebrate same sex marriage or any other activity or belief that contradicts how she understands her Bible. As described in the court’s opinion, “Ms. Smith acknowledges that her views about marriage may not be popular in all quarters, But, she asserts, The First Amendment’s Free Speech Clause protects her from being compelled to speak what she does not believe. The Constitution, she insists, protects her right to differ.”[9] The majority of the high court overruled the lower court ruling and concluded that refusing to make a web page for same-sex weddings in a for-profit public business was justified by the First Amendment. Furthermore, she also earned the right to legally publish statements explicitly identifying her refusal to serve same-sex wedding celebrants, something central to the Communications clause of the Colorado Anti-Discrimination Act. Imagine something like, “Celebrating Gays Need Not Inquire.”[10]

The majority opinion in this case, written by Gorsuch, with Roberts, Alito, Kavanaugh and Barrett joining, imagines the legal principle involved not to involve Public Accommodation, but about Freedom of Speech.  In essence, they claim that requiring Ms. Smith to accommodate those who wish to celebrate same-sex marriages is to force Ms. Smith to express ideas that are disagreeable to her intellect, and most importantly, her faith. Gorsuch likens the requirement for Smith to create webpages for same-sex marriages as a kind of governmental coercion toward “enlightened speech.”[11]  Gorsuch, in critiquing the lower court ruling against Smith, regards their position as one that “compels” Smith to “create websites celebrating marriages she does not endorse,”[12] and to produce speech in violation of her own beliefs.[13] Instead, the majority believes that our founders would advocate ruling in favor of Smith to nurture the marketplace of ideas that are a vital part of democracy. “By allowing all views to flourish, the framers understood, we may test and improve our own thinking both as individuals and as a Nation.”[14]

Given that Smith’s legal team needed to cast this case to be about Free Speech and not Public Accommodation, it was crucial for them to construct the case with Smith’s creative expression as center stage.  This was accomplished by creating a connection between her self-expression and the product she wished to offer on the public market. Her potential wedding webpages are described as “‘original,’ ‘customized,’ and ‘tailored creations.’” They will be “ ‘expressive in nature,’ designed to communicate a particular message,’ ’’ and will be Smith’s “ ‘original artwork.’”[15] According the opinion of the court, the fact that Smith’s imagined webpages (recall, she hasn’t yet created one yet) will be “expressive” is reason to believe that they can be regarded as “pure speech.”[16]  From the court’s decision,

It is a conclusion that flows directly from the parties’ stipulations. They have stipulated that Ms. Smith’s websites promise to contain “images, words, symbols, and other modes of expression….They have stipulated that every website will be her ‘original, customized’ creation….And they have stipulated that Ms. Smith will create these websites to communicate ideas – namely, to ‘celebrate and promote the couple’s wedding and unique love story’ and to ‘celebrat[e] and promot[e]’ what Ms. Smith understands to be a true marriage.[17]

The court sights three different precedent cases that they believe support the idea that laws of Public Accommodation are secondary to “expressive” content in for profit businesses. The cases sighted include 1.) West Virginia Bd. Of Ed. V. Barnette (1943), 2.) Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc (1995), and 3.) Boy Scouts of America v. Dale (2000).  In the first case, it was ruled that students need not recite the pledge of allegiance at school, since doing so (in the case those who are members of the Jehovah’s Witnesses) was contrary to their religious beliefs. The second case involved a Saint Patrick’s Day Parade to which the Irish American Gay, Lesbian and Bisexual Group of Boston wished to join, but were denied inclusion from parade organizers.  In the last case, the Boy Scouts of America won the right to exclude from the organization a gay man. By some accounts it was his activism not his identity that resulted in the exclusion. In each of these cases, what is thought as the compelling of certain speech played a central role. That is, in each case the court argued that individuals would be compelled to speak or express ideas contrary to their own. The first case involving the recitation of the pledge of allegiance is the most obvious of the three. In the second case, it was that the Irish American Gay, Lesbian and Bisexual Group of Boston group wished to walk behind a banner, that I expect championed the civil rights for LGBTQ persons, that was seen as expressive and that by their inclusion the organizers were thus coerced into also expressing that belief.  In the last case, the Boy Scouts were determined to be an “expressive” organization, and so to be forced to include those that expressed different beliefs (Dale), was an infringement on their First Amendment rights.

The minority decision was penned by Justice Sotomayor to which Justices Kagan and Jackson joined.  Sotomayor reframes the discussion to be not about Freedom of Speech of an individual with particular religious beliefs, but about Public Accommodations.  Referencing Bostock v. Clayton County Ruling that concluded that discrimination on the basis of sexual orientation and gender identity was a violation of Title VII, the first lines of her dissent proceed as,

Five years ago, This Court recognized the ‘general rule’ that religious and philosophical objections to gay marriage ‘do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law…..Today, the Court in the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class.”[18]

For Sotomayor, this isn’t a case about speech, but about an action of discrimination. For Sotomayor, the mistake of the majority is that they conflate protected expression with denial of service. This she calls, “a grave error.”[19] Contrary to the majority opinion, Sotomayor argues that no speech need be compelled here at all. Smith can easily tailor her (possible future) wedding website business to include only include Bible verses or sentiments supporting heterosexual marriage.[20]  In this case she would be able to offer the same product to all, without discrimination.  As Sotomayor explains, one can specify the product or service as one chooses, one simply can’t refuse to serve those of protected classes in a for-profit business. Alternatively and following the advice of the Colorado court, she could use a kind of a “shell” webpage she did for a heterosexual wedding and simply re-purpose it in ways that don’t require her to engage in any further creative activity. To the argument that refusing to do wedding webpages for same-sex weddings isn’t discrimination on the basis of sexual orientation since she will work with members of the LGBTQ community in creating non-marriage webpages, Sotomayor remarks, “This logic would be amusing if it were not so embarrassing.”[21]  In her dissent she recognizes how the 1964 Civil Rights Act inspired a number of failed attempts of individuals claiming that their religious expression or political liberty required them to continue to discriminate against Black folks in the public market place. In the case involving the “Heart of Atlanta Motel,” the owner argued that being forced to his rent his hotel rooms to Black folks violated his constitutionally guaranteed right to liberty. In a similar kind of argument, Ollie McClung, owner of a barbeque business, thought that he should be able to discriminate against Black folks by refusing to attend to their orders unless they only ordered take-out and used a separate counter for ordering. Sotomayor references these cases when she makes clear that Smith’s denial of engaging in discriminating action utterly fails.

I suppose the Heart of Atlanta Motel could have argued that Black people may still rent rooms for their white friends.  Smith answers that she will sell other websites for gay or lesbian clients. But then she, like Ollie McClung, who would serve Black people take-out but not table service, discriminates against LGBT people by offering them a limited menu. This is plain to see for all who do not look the other way.[22]

Central to Sotomayor’s main argument is that Smith is expecting an exception to the Public Accommodations clause. What should take center stage is whether or to what degree such an exception is justified. This clause has two main elements, first, it requires “equal access to publicly available goods and services” and second provides “equal dignity in the common market.[23]  Referring to the necessity for “equal dignity,” Sotomayor contends that not being able to participate in the common market induces a “stigmatizing injury.”[24] The harm that results from discrimination in public accommodation isn’t simply a kind of frustration that one need to look elsewhere to be served or to purchase certain goods. This harm exists even if the individual is able to find service somewhere else.  “When a young Jewish girl and her parents come across a business with a sign out front that says, “No dogs or Jews allowed,” the fact that another business might serve her family does not redress that ‘stigmatizing injury’”[25]  As mentioned, Smith won the right to not only discriminate against same-sex wedding celebrants, but the right to post information on her webpage that clearly and publicly characterizes this bias. This stigmatizes at the same time that it broadcasts other’s potential ability to do the same.

Foundationally, according to Sotomayor, the Public Accommodation clause is a form of a social contract. No one, including Smith, is required to own a business that is open to the public, doing so is fully her choice. Similarly, as mentioned, she can tailor this business to offer services to all, but within her acceptable levels of comfort and expression. Doing so requires little imagination but does require willingness to abide by the law. As Sotomayor explains, “… if a business chooses to profit from the public market, which is established and maintained by the state, the state may require the business to abide by a legal norm of non-discrimination.”[26]  It is the legal norm of non-discrimination that Smith, and her supporters, wish to erode.

Sotomayor easily dispenses with the argument from the majority that this is foundationally a case about Freedom of Speech and Expression. She notes, as probably most did when reading this essay, that the cases identified as relevant precedents by the majority do not include expressions within the context of a for profit business. Neither the U.S. Boy Scouts, the Saint Patrick’s Day Parade organizers, nor the West Virginia Board of Education are for -profit businesses benefiting from the current social and economic conditions that allow such businesses to flourish. Furthermore, Sotomayor identifies precedent setting cases that show that one’s expression does not give any individual free reign to discriminate against legally protected categories nor is it the case that the government may not have legitimate interest in overriding certain forms of expression. In terms of the latter, she cites United States v. O’Brien, (391 U.S. 367 (1968) where the obviously politically expressive activity of burning a draft card was legally prohibited. Here, the court concluded that since the intent of the government to regulate this conduct was not to burden the expression of those who might receive draft cards, it was ruled that the burning of such cards was not immune to governmental regulation. This standard, called the “O’Brien Standard” invokes the notion of a substantial governmental interest in certain activities, even those activities that for some are highly and importantly expressive. If there is a substantial governmental interest in having draft cards not burned, consider how much greater the governmental interest in having businesses not discriminate against those of protected categories. It is indisputable that the government does, in fact, have such an interest, and that there are alternative ways for Smith to conjure a business that is consistent with her heart felt beliefs about the sanctity of heterosexual marriage. The fact that Smith’s case went forward for the express purpose of obtaining an exception to the Public Accommodation clause and that the services in question were not even yet available, is telling. This now precedent setting case has favored Religious Expression over the Public Accommodation of same-sex marriage celebrants.  This case invites others that, even tenuously, can claim that their product or service is “expressive” and thus they are legally permitted to discriminate on the basis of protected categories. In thinking about the recent trans directed backlash, I sincerely doubt that Smith would be willing to make webpages that celebrate weddings that involve one or more trans or non-binary person, a bar mitzvah of trans young man, or a quinceanera for a trans young person. The writing is unfortunately on the wall.

Kennedy v. Bremerton School District

The case of Kennedy v. Bremerton School District, decided in the summer of 2022, just one year before 303 Creative, establishes a dangerous and distinct precedent that I fear will be used in the future to further marginalize LGBTQ+ folks and especially those of us who are trans or gender non-binary.[27]  Recall that the results of the 303 Creative case are that religious expression and freedom of speech includes the right to discriminate in the public market, for Kennedy, the context of religious expression is widened to include governmental spaces, here, a public high school.  The facts of the case are easy to grasp. Coach Kennedy regularly led students in prayer before games (a long standing practice of the coaching staff before his leadership), and additionally had a practice of praying on the 50-yard line of the football field right after the game was ended.  It was not unusual for his students, those of the opposing team, and other coaches to join him in this post-game prayer. He would, at times, lead a short inspirational Christian speech at this time, sometimes holding a football helmet aloof…for (I am assuming) dramatic effect.

Protest for LGBTQ Equality, Washington DC, 2019 (Ted Eytan)

The school district found out about this and asked that he no longer lead prayers before the game. He agreed to forego the pre-game prayer in the locker room, but he could not bring himself to abide by the request that he stop praying on the 50-yard line of the football field after the game.  Kennedy claimed that this was a personal and silent prayer, and while he didn’t mind if players and others joined him, he did not coerce anyone to do so. Coach Kenedy, acting in direct conflict with the request of school district officials, vowed to pray on the 50-yard line after homecoming game and even went to the press to publicize this in multiple media appearances including a local television broadcast and local newspaper.[28] The result is easily imaginable.  After the game, players of both teams and coaches joined him in prayer, he had a chance to give a little religious speech, and supporters from the stands, in violation of safety protocols, clamored over each other to participate on the field. Coach Kennedy was then fired. Recognizing that this kind of display could easily be seen as the school district’s intention to promote the Christian religion, the Satanic Temple of Seattle requested the school district that they too be able to engage in public ceremony after the game[29]. (Bless their cold black hearts of political and religious freedom.) They were denied, of course.

This case involves the Establishment Clause.  That is, the school district believed that these displays on the 50-yard line could reasonably be perceived as an Establishment of Religion, of a district sponsored religious ritual. School officials asked Coach Kennedy to pray, if he wished to, after the game, but not on the 50-yard line, (a place he had access to only as coach), not when others were still around, and not when he still had post-game supervisory duties.  Kennedy’s lawyers argued that it is very common for coaches to do a number of tasks directly after the game (check their phone, say hello to friends in the stands, etc. etc.) and that since these other activities were not being curtailed the district could not curtail Kennedy in his post-game prayer, without being hostile to all religious expression.  His legal team argued that if the District took such a position, teachers could no longer be allowed to say a personal prayer of grace before meals at school, or wear a head scarf or kippah (skull hat) in their religious expression.

In this case, Gorsuch again delivered the opinion of the court, with Roberts, Thomas, Alito and Barrett joining him.[30] Briefly put, the court did not see Kennedy’s prayer on the 50-yard line after games as evidence that the school or school district could be seen as advocating for a particular religion, in this case, Christianity. They came to this conclusion since Kennedy did not coerce players or others to join him in prayer, nor was that time used for instruction or game analysis. His prayer was regarded as that of a private citizen and not a public employee. The fact that he was still “on-duty” as a coach at that time, that he only had access to the 50-yard line after games due to his position as coach, and that he was a role model for students, was not found to be adequate for the school district to justifiably ask him to pray on his own time or to do so privately.  Gorsuch writes, “To hold otherwise is to posit an ‘excessively broad job description’ by treating everything teachers and coaches say in the workplace as government speech subject to government control.”[31]  The court also found that the “second step” of analysis required in these cases was to Kennedy’s advantage. In this case, the “second step” involves the school district arguing that they have special interest in regulating their employee’s speech, even though it is private speech.  The majority of the court ruled that the district’s concern that they be found liable under the Establishment Clause was not sufficient for them to require him to pray elsewhere or at a different time.

Like the 303 Creative case, Sotomayor wrote the dissent on this opinion as well, with Justices Breyer and Kagan joining.  Unlike the majority, she disagreed that this was simply a case of a brief personal prayer, but that since Kennedy was still on duty as a coach, was wearing his official coaching attire as representative of his professional role, had supervisory duties at the time, was on school property, and that the religious display was likely coercive to his students, meant that this violated the Establishment Clause. Sotomayor, unlike Gorsuch, notes that there were many occasions that Kennedy did, in fact, invite others to pray with him and recognizes the implicit or explicit coercion that Kennedy’s display would have on his young student-athletes.  To this issue, Sotomayor writes, “After the issues with Kennedy arose, several parents reached out to the District saying that their children had participated in Kennedy’s prayers solely to avoid separating themselves from the rest of the team.”[32]  Kennedy’s appeal to the media to announce his post-homecoming prayer and his lack of response to the crowd when they violated safety protocols to pray with him are also telling. As a coach still on duty on the field, part of his responsibilities was to prevent the kind of unsafe behavior that his public rallying cries produced.

Kennedy did nothing to stop this unauthorized access to the field, a clear dereliction of his duties….and himself apparently anticipated that his continued prayer practice would draw student participation, requesting that the District agree that it would not “interfere” with students joining him in the future.[33]

Given that Kennedy was not barred from saying a private non-demonstrative prayer while at work when it didn’t interfere with his duties, but that he refused to do so and claimed, in violation of the District’s explicit directives, that the prayer had to be directly after the game on the 50-yard line, makes clear that this was not [just] about a quick prayer to his God, but public religious performance. Sotomayor makes her point clear,

Properly understood, this case is not about the limits on an individual’s ability to engage in private prayer at work.  This case is about whether a school district is required to allow one of its employees to incorporate a public, communicative display of the employee’s personal religious beliefs into a school event, where that display is recognizable as part of a long standing practice of the employee ministering religion to students as the public watched. A school district is not required to permit such conduct; in fact, the Establishment Clause prohibits it from doing so.[34]

I believe that this case, like that of 303 Creative, has serious ramifications for those of marginalized identities, including LGBTQ+ persons and those who are not Christian.  Here, the majority doesn’t simply rule on the specifics of the case, but attempts to shift the decision making procedure of what should or should not be seen as an establishment clause violation.  It is well known that legal arguments often employ a “reasonable person” standard. In this case, the question is whether a “reasonable person” who watched these Kennedy’s public prayers would think that these activities involved government (school) officials engaging in an officially sponsored and potentially coercive religious activity.  It seems that this case would certainly violate this standard.  However, the court wishes to replace the “reasonable person” standard for a “history-tradition” test.  While the majority neither justifies nor explains what this test might look like, it is clearly consistent with an originalist interpretation of the law.  Rather than employing the reasonable person standard, the court would be directed to wonder whether how the authors of our nation’s founding documents would regard these particular events.  Would they think that Coach Kennedy was infringing on the Establishment Clause?  It is notable that these individuals from the mid-18^th Century wouldn’t have over two hundred years of research about what can be rightly seen as implicitly coercive to adolescents, even though it is clear that such knowledge would be relevant here. Would our Founding Fathers realize that if a player wants to get in the good graces with Coach Kennedy and gain more time on the field it makes sense to indulge him in his prayerful practices and that this is implicit coercion?  Perhaps more worrisomely, the conclusion of this “history-tradition test” is up to the judges to decide what aspects of our history or historical documents are relevant to the present case at hand. Indigenous folks, Asian and Pacific Islanders, Black folks, Latinx and other people of color, along with women and LGBTQ+ people of all backgrounds are rightfully reticent to try to unearth attitudes held by white, propertied colonial men of the 18^th Century.

The Legal and Social Ramifications of the 303 Creative and Kennedy cases.

Both of these Supreme Court rulings have come at a time of increased politicization of LGBTQ+ and especially trans and gender non-binary identities. Be assured, I find it obvious that there is no necessarily antagonistic relationship between LGBTQ+  persons and the Christian Faith.  Many of the LGBTQ+ community practice Christianity of various sects and find spiritual fulfillment in those practices and beliefs.  Just recently, in the same week that Pope Francis declared that “gender affirming surgery is an affront to human dignity, “[35] a professor of Baptist Baylor University got in a tweet war claiming that J.K. Rowling needed to stop her constant tirades against transgender persons…after she targeted individual trans women on the social media outlet.[36]  The professor’s Christianity did not impede his motivation to be an ally to trans folks. So, yes, Christianity and LGBTQ+ identities have a complicated relationship. Still, it can’t be denied that a good bit of the legal and legislative onslaught against LGBTQ+ persons has been supported by certain Evangelical and Fundamental Christians Groups. These are the same folks to whom Trump appealed to in the speech mentioned earlier in this essay. Trump is looking to win an election and a good deal of his base is fully engaged in the culture wars, especially when it comes to the rights of trans and gender non-binary persons.

It isn’t difficult to imagine how the two cases just discussed will make living as a trans, gender non-binary person, or LGBQ+ person potentially more difficult in the years to come. If coaches can pray and lead mini-sermons on the football playing field, why not a demonstrative and collective practice of saying grace before lunch at the school cafeteria, or a prayer to start off or end the day at the school entrance? Following the Kennedy case, as long as there is only implicit and not explicit coercion, such activities could be seen as being protected under the First Amendment. Would students consider participate to gain positive feedback from their faculty mentor, to gain higher scores on assignments, or simply to be “part of the group”? It seems highly likely. The result would involve LGBTQ+ students, and especially trans and gender non-binary hiding their identities, living in the “closet,” and fearing the newly emboldened school bullies. Since groups like “LifeWise Academy” have recently found legal ways to include Biblical teaching into the public school curriculum, future generations of students may be even less likely to support their trans and LGBTQ+ peers.[37]  I have written extensively and in agreement with Sotomayor that the word “backlash” is descriptive of this political moment.[38]

Broadening the scope of free speech/expression in the marketplace, in ways that are thought to be justified exceptions of the right to Public Accommodation, based on the 303 Creative case, is similarly worrisome.  Given that Smith is allowed to discriminate openly against those celebrating their same -sex wedding, and the intense scapegoating of trans and non-binary persons, virtually any event that celebrates a life event of those individuals would mean that one was supporting the legal and moral recognition of that person’s identity, something both the former President and many religious and politically right organizations refuse to do. Given that the 303 Creative case was argued with the key premise that her work on webpages was “expressive,” what else might be identified as such? It seems clear that personal and professional expressions are never fully independent from each other. Teachers express themselves in their craft, as do barbers, store owners, lawyers, book store owners, even restauranteers. If one holds a committed religious belief that persons identifying as or expressing themselves as trans or gender non-binary, or otherwise LBGTQ+ are essentially demonic and contrary to God’s plan, it could conceivably be argued that nearly any professional interaction is an infringement of their First Amendment Rights, thus justifying public discrimination.

Conclusion

The impacts of the anti-trans legislative onslaught, the ramifications of both Kennedy and 303 Creative undoubtably threaten the well-being of LGBTQ+ folks, trans and gender non-binary folks nationwide.  But this is not all. These movements of unjust exclusion threaten our nation as a whole. Restricting gender expression as a kind of self-expression is one step toward restricting other sorts of personal expression, whether that be an expression of political belief, or related to a marginalized identity. Scapegoating others is not just the aim of true believing zealots, but a step in the direction of amassing more control that some politicians seek. Demonizing transgender and gender non-binary folks isn’t just an end in itself, it is a step towards further authoritarian power.  As recently penned by Judith Butler,

The fear of “gender” allows existing powers — states, churches, political movements — to frighten people to come back into their ranks, to accept censorship and to externalize their fear and hatred onto vulnerable communities. Those powers not only appeal to existing fears that many working people have about the future of their work or the sanctity of their family life but also incite those fears, insisting, as it were, that people conveniently identify gender as the true cause of their feelings of anxiety and trepidation about the world.[39]

In agreement with Butler, it is important that we understand the political moment in which we presently reside, and the political and moral ramifications for those targeted.  The lessoning of restrictions against the Establishment of Religion and provide exceptions to the Public Accommodations poses a severe threat to trans, gender non-binary, and all LGBTQ+ persons.  The scapegoating and targeting of folks in these groups that began shortly after the Supreme Court Ruling on same sex marriage in 2015 continues unabated and now employs both the court system as well as local and national law-making bodies. In the meantime, the political rallies of former president Trump do all they can to marry the cause of his reelection with the goals of one variety of Christianity.  This year, 2024, Transgender Day of Visibility happened to land on Easter Sunday.  President Biden’s acknowledgment of the day was characterized as one that was a “total disrespect to Christians” and Trump vowed to make election day “Christian Visibility Day,” clearly drawing the lines of animosity between the nation’s most popular religion and the transgender existence.[40] Interestingly, while the former President’s rallies are full of calls for retribution of his enemies and the demonization of trans individuals, Critical Race Theory Professors, immigrants, and other imagined evils, they have now begun to end with solemn prayers for political victory.[41] This mixture of political aspiration and religious fervor, accompanied by ideologically driven Supreme Court Rulings and explicit anti-LGBTQ+ state and local legislation, mean not only that the political gains of sexual and gender minorities will be lost, but distort our collective understanding of justice, to the detriment of all.

Notes

[1] Erin Reed, “Anti-Trans Legislative Risk Assessment Map, March 2024 Update,”  March 25 2024, <https://www.erininthemorning.com/p/anti-trans-legislative-risk-assessment-cd3?utm_campaign=email-post&r=2a4dyr&utm_source=substack&utm_medium=email>

[2] <https://www.youtube.com/watch?v=vdNRsCLRxhg>

[3] <https://www.youtube.com/watch?v=vdNRsCLRxhg>

[4] Matt Lavietes, “Bipartisan Spending Bill Includes Effective Ban on Pride Flags Over Embassies,” NBC News, March 22, 2024. <https://www.nbcnews.com/nbc-out/out-politics-and-policy/pride-flag-ban-us-embassies-government-shutdown-deal-rcna144647>

[5] Andrew L. Seidel, American Crusade, How the Supreme Court Is Weaponizing Religious Freedom, Union Square and Company, subsidiary of Sterling Publishing Co, New York

[6] 303 Creative LLC v. Elenis, ___ U. S. ___ (2023)

[7] Ibid, Opinion of the Court, 4

[8] Ibid, 4

[9] Ibid, 2

[10] These are my words, not those that she put on her webpage.  Her website, as of April 2024, has no other information about wedding websites, except a “Coming Soon” message.

[11] Ibid, 24

[12] Ibid 4

[13] Ibid 11

[14] Ibid 7

[15] Ibid 2

[16] Ibid 9

[17] Ibid 9

[18] 303 Creative LLC v. Elenis, ___ U. S. ___ (2023), Sotomayor Dissenting, 1.

[19] Ibid 24.

[20] Ibid 27.

[21] Ibid 32.

[22] Ibid 32.

[23] Dissent, 4 -5.

[24] Ibid, 5, Sotomayor quoting …Roberts 468 U.S., at 625.

[25] Iid 5, quoting Roberts, 468 U.S., at 625.

[26] Ibid 7.

[27] Kennedy v. Bremerton School Dist., 597 U. S. ___ (2022)

[28] Ibid, Sotomayor Dissenting, 7.

[29] Christine Clarridge, “Jesus’ Chants Greet Satanists at Bremerton Football Game,” The Seattle Times, February 4, 2016. < https://www.seattletimes.com/seattle-news/education/jesus-chants-jeers-greet-satanists-during-bremerton-football-game/>

[30] Kavanaugh agreed with Gorsuch’s appraisal except on one small point, and Thomas and Alito filed concurring opinions.

[31] Ibid, Syllabus, 3

[32] Ibid, Sotomayor dissenting, 11.

[33] Ibid 19.

[34] Ibid 13- 14

[35] Jason Horowitz and Elisabetta Povoledo, “Vatican Document Casts Gender Change and Fluidity as a Threat To Human Dignity” New York Times, April 8, 2024,  <https://www.nytimes.com/2024/04/08/world/europe/vatican-sex-change-surrogacy-dignity.html>

[36] Jon Brown, “Baylor University’s ‘Harry Potter Professor,’ Goes Viral After Blasting J.K. Rowling for ‘Hatred of Trans People,’” Christian Post, April 6, 2024, < https://www.christianpost.com/news/baylor-u-professor-goes-viral-for-accusing-jk-rowling-ofhate.html?utm_source=Weekend&utm_campaign=Weekend&utm_medium=newsletter>

[37] “Lifewise Academy” is an organization that facilitates Bible education in public schools to take place during the regular school day. Organizers cite a 1951 Supreme Court Ruling, Zorach v. Clauson, that they believe allows for this kind of religious education as long as it is off the property of the public school, does not use public funds, and requires parental consent. Organizers claim that, as of April 2024 tens of thousands of school children attend Bible classes during regular school hours, through LifeWise Academy See <https://lifewise.org/>

[38] Sotomayor’s dissent in the 303 Creative v. Elenis ruling includes, “Around the country, there has been a backlash to the movement for liberty and equality for gender and sexual minorities. New forms of inclusion have been met with reactionary exclusion. This is heartbreaking.” Dissent page 2.

[39] Judith Butler, “How the anti-gender movement is bringing us closer to totalitarianism,” L.A. Times, March 6^th 2024. < https://www.latimes.com/opinion/story/2024-03-16/anti-gender-ideology-sexual-identity-transgender-violence>

[40] Jon Brown, “Trump Floats ‘Christian Visibility Day’ in Response to Biden’s ‘Trans Visibility Day’” “The Christian Post,” April 3, 2024. < https://www.christianpost.com/news/trump-floats-christian-visibility-day-in-response-to-biden.html?utm_source=Daily&utm_campaign=Daily&utm_medium=newsletter>

[41] Michael C. Bender, “The Church of Trump, How He is Infusing Christianity into his Movement,”  The New York Times, April 1, 2024. <https://www.nytimes.com/2024/04/01/us/politics/trump-2024-religion.html>