Attorney General Doug Peterson says he works “to serve the citizens of Nebraska and Nebraska’s elected officials with fidelity to our U.S. Constitution, State Constitution, and Nebraska law.” This proclamation from the front page of the Attorney General’s Office website is hard to square with his most recent action to curb the rights of same-sex couples.
Peterson has once again signed Nebraska on to a case that encourages discrimination under the one-ply thin veil of “free speech.” The case, 303 Creative LLC v. Elenis, involves a Colorado graphic designer’s challenge to the state’s public accommodations law that prohibits discrimination against LGBTQ people. Lorie Smith, the owner of 303 Creative LLC, does not just want to deny LGBTQ people access to her wedding website creation services, she also wants to proudly advertise her bigotry.
Last summer, the Court of Appeals for the Tenth Circuit upheld Colorado’s Anti-Discrimination Act. 303 Creative LLC appealed and the Supreme Court of the United States has decided to hear this matter.
Peterson announced at the beginning of this month, Pride Month, that he filed an amicus brief with the Supreme Court. Amicus briefs are briefs submitted to courts by interested non-parties with the intent of persuading the court’s opinion. Peterson tried to persuade the lower court as well in this case.
Fortunately, the ACLU and ACLU of Colorado also submitted their own amicus brief at the lower court. Their brief raised points which our attorney general and his colleagues overlooked or just flat out ignored.
The crux of the issue in this case is that the First Amendment does not allow businesses to engage in discrimination banned under a neutral and generally applicable law – like the Colorado Anti-Discrimination Act. What does this mean? The ACLU’s brief provides a terrific example: “a company may not refuse to create a website [...] for an African American customer if it would make the same website for a white customer.” Why should discrimination against LGBTQ customers be any different?
It's not that Smith dislikes gay people and thinks that gay marriages should be unlawful. Rather, it’s that she wants to blatantly announce her bigotry and desire to discriminate against LGBTQ couples in love. The Constitution does not provide citizens with the right to discriminate and it does not provide citizens with the rights to advertise their discriminatory practices. In Masterpiece Cakeshop v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719 (2018), the Supreme Court cautioned that broad interpretations of free speech to allow businesses to advertise their discriminatory practices, like hanging signs which say “no goods or services will be sold if they will be used for gay marriages,” would impose serious stigma on gay people.
The Supreme Court decided Masterpiece Cakeshop on very narrow grounds and throughout the opinion, the Court regularly and repeatedly affirmed LGBTQ equality. Even going so far as to note: “it is unexceptional that Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.”
Freedom of speech and freedom of religion do not entitle freedom to discriminate. It is the responsibility of our attorney general to protect the rights of all citizens – straight, gay, cis, and trans. And yet, sadly, he has proven time and time again that the rights he cares about the most are those of cisgender, straight, white, Christians. We saw this last year when Peterson supported a cruel Arkansas bill denying trans youth medical care.
Since I last wrote about his actions, Peterson and I ended up developing a cordial relationship. I try to challenge his views and he tries to challenge mine. We do not always see eye-to-eye and not just because he is taller than me. Here I am challenging him again.
Attorney General Peterson, your actions are out of step with the values of Nebraskans, who overwhelmingly support same-sex marriage and LGBTQ non-discrimination. If you truly want to serve all Nebraskans in accordance with the constitutions and the law, you could start by spending time and resources to find opportunities to ensure freedom and fairness for all, rather than leading the charge to discriminate and marginalize some of our most vulnerable citizens.
Pride is still a protest. We must and will continue to fight for LGBTQ equality.
Happy Pride.
