The ruling that ended the constitutional protections that existed against abortion in the United States is still fresh, the Supreme Court of Justice in this country, controlled by conservatives, now has its eyes on two other fronts with high social and political impact.
On the one hand, the rights of the LGBTIQ+ communities and, on the other, the electoral system itself and the way Americans choose their rulers. The Court, which is made up of six conservatives and three liberals, began in the last ten days the study of two cases that could cause profound changes on both fronts and whose sentence will be known in the coming weeks.
The first concerns Lorie Smith, a graphic designer in Colorado who creates web content for couples thinking of getting married. However, she only believes the marriage between a man and a woman is valid and refuses to offer her services to people of the same sex. But beyond that, and which was what in part caused the intervention of the State, she wants to publicize in these pages the reasons why she does not intend to serve these communities.
Two lower courts have already ruled against Smith, alleging that his decision not to provide the service and also wanting to publicize his reasons violate state laws, which prohibit discrimination against a person based on religion, race or sexual orientation.
Although in her lawsuit before the Supreme Court, Smith alleged that her religious convictions were being violated —by forcing her to provide services to LGBTIQ+ people—, this highest judicial instance is not looking at this aspect, but rather at freedom of expression, also protected by the Constitution. In other words, her right to be able to say on the web pages of her business that she does not provide services to gays, considering them illegal and a moral deviation.
Two lower courts have already ruled against Smith, alleging that his decision not to provide the service and also wanting to publicize his reasons violated state law.
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According to attorneys representing the state, Smith is confusing his right to free speech with selling a product. “Residents of this state shouldn’t have to worry about being rejected for who they are. Smith is free to offer web pages that include, for example, biblical quotes that describe marriage as the union of a man with a woman. But then his business is obligated to sell what he offers to anyone who requests it, regardless of his race, religion, or sexual orientation. Believers or atheists have the right to buy that product if they want to,” says the state’s attorney general, Philip Weiser.
Failing to do so, Weiser said, would be tantamount to signs posted at some businesses in the era of racial segregation offering services only to “white people” that the Supreme Court had already ruled unconstitutional. Decades ago, in a previous sentence, this highest judicial instance declared illegal a hotel that only wanted to provide services to whites and a restaurant that refused to seat Afro people in the same dining room because it went against the religious beliefs of its owner.
Smith, for his part, alleges that his right to express himself freely is being censored.
Many fear that the Court, by deciding to take the case, is trying to review that precedent and erode the rights that LGBTQ+ communities have been acquiring in recent years.
In fact, there are those who believe that the final objective of the Court is to abolish the right to marriage between people of the same sex, which this same Court, but with a different composition, granted in 2015. And it was also the reason why The US Congress has just passed a law that offers constitutional protections to these types of marriages.
Leaning in Smith’s favor would create a gaping hole in anti-discrimination laws, opening the door for them to refuse to offer services to gays, blacks, or people of other religions.
The situation, in any case, has unleashed a new ‘culture war’ that threatens to further divide the country. For one sector, if the Court agrees with the state, it would be forcing residents to do things contrary to their beliefs. For the other, by leaning in favor of Smith there would be a huge hole in the anti-discrimination laws, opening the door for businesses in the country to refuse to offer their services not only to gays, but to Afro-descendants or people of another religion, for example.
“You can believe in what you want. But once you decide to have a business then you have to offer the service to everyone, without discrimination. If Smith wins, we will live in a world where a company that provides a creative service can put up a sign that says ‘Not for Women, or Jews, or Blacks’ and claim that the First Amendment guarantee of free speech protects them. We do not want to live in that world, we do not believe that the First Amendment requires it of us, ”says David Cole, legal director of the Union for Civil Liberties of America (Aclu).
For the experts, however, the questions that the magistrates have asked during the first early hearings indicate that the six conservatives lean more towards Smith’s arguments.
The other case before the Court is equally complex. Last year, the Republican-controlled North Carolina legislature approved a new electoral map to delimit the 14 districts that exist in the state and that correspond to the 14 seats that the state has in the National Congress. Despite the fact that North Carolina is considered a ‘grey state’ where neither of the two parties has a clear majority (Donald Trump obtained 50 percent of the vote in 2022 vs. Biden’s 49 percent), the approved map gave the Republicans a certain victory in 10 of the 14 districts.
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After several lawsuits, the state Supreme Court concluded that the map was clearly partisan and violated the clauses that guarantee electoral equality. Since the 2022 elections were just around the corner, the Court approved a new temporary map where it distributed the advantage equally (7 for each party).
You can believe in what you want. But once you decide to have a business then you have to offer the service to everyone, without discriminating
The Republicans, as expected, challenged the decision before the National Supreme Court using an argument that is seen as extreme and with enormous implications for the electoral system of the entire country. It is called the “independent state legislature theory,” and under this the Constitution grants the right to state congresses to design their electoral system without review by the courts or by the executive (in this case the governor) to determine whether violations of other suffrage rights have been committed.
‘Challenge the system’
“This case is nothing more than a direct challenge to our system of checks and balances, where the courts and executives have a voice in the decisions of the legislature. Alleging that they do not have it borders on the most extreme,” said former Attorney General Eric Holder, who is part of this judicial process.
If the Court sided with the North Carolina Republicans, this and other state legislatures could pass whatever election rules they see fit, even if they disenfranchise certain groups or are designed to favor them. Many are even concerned that they could be used to disavow the results in presidential elections, if legislators do not like the winner.
That theory, among other things, was the one put forward by one of Trump’s lawyers when he wanted the state congresses in Arizona and Georgia to ignore Biden’s victory and give him the victory. The Court, according to experts, would be trying to find a middle ground in which the Judiciary cannot ignore the will of the legislature to the point of imposing its own electoral map, but neither does it lose its oversight function when what is clearly approved is far from what is established by national norms and the spirit of electoral impartiality that upholds democracy.
In any case, both with regard to the rights of the LGBTIQ+ communities and with regard to the electoral system, the Supreme Court has begun to navigate uncharted waters. And his final decision, like what happened with the issue of abortion, could alter the rules of the game that govern the lives of millions.
The matter is controversial because the Court, in its composition, is not representative of the political distribution of the United States, but it is changing very deep fibers that affect the majority
The matter is controversial because the Court, in its current composition, is not representative of the political distribution of the United States, but it is modifying —with its decisions— very deep fibers that affect the majority. In fact, as the last presidential elections have shown, there are more Democrats in the country than Republicans (51 percent vs. 49 percent approximately). And yet the latter party has a 66 percent representation on the highest court. Furthermore, three of those six judges were nominated by former President Donald Trump, and at least two of them in highly controversial circumstances.
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When Judge Antonin Scalia died in January 2018, the Republicans, who controlled the Senate, refused to consider President Barack Obama’s nominee, alleging that that same year, in November, there were elections and therefore the selection should correspond to him. to the new president. But then, in 2022, when an almost identical scenario was presented after the death of Judge Ruth Bader Ginsburg, they allowed Trump to choose the justice despite the fact that the election was only two months away.
Additionally, since appointments to the Court are for life, those chosen by Trump could be on the Court for two or three decades since he chose very young people who are currently under 60 years of age.
This imbalance has unleashed a whole movement that seeks to reform the Court to make it less political. On the one hand, it is intended to limit the period to between 15 and 18 years. On the other, it has been proposed to expand the quota of magistrates to 11 to allow Biden to nominate more liberal judges that bring the composition of the Court closer to one more in line with the sentiment of the majority.
But these are complex changes, since they require constitutional reforms that are not seen as viable in this political climate. A tremendous crossroads that, without a doubt, will mark the future of the next generations in the United States.
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SERGIO GOMEZ MASERI
EL TIEMPO correspondent (Washington)
On twitter: @sergom68