In 303 Creative v. Elenis, the Supreme Court upheld Lorie Smith’s free speech rights, deciding that the state of Colorado could not force her to produce websites for so-called same-sex weddings. Ever since, media pundits and public officials have distorted the ruling, claiming that it will allow people to refuse service to LGBT individuals. However, even the state of Colorado acknowledged that Smith serves all people with her business, but she would not provide services that meant expressing a view that violates her faith. The state made clear its intent was to suppress Smith’s ideas about marriage. By a vote of 6-3, the Supreme Court found this a clear violation of the First Amendment guarantee of freedom of expression.
The dissent in the case was written by Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson. It featured a rambling history of civil rights and public accommodation law, law that prevents discrimination of the public in services. Sotomayor argued that the decision violated the trajectory of the expansion of civil rights to more and more marginalized groups in society. She claimed that creating a website was a matter of providing a service and had nothing to do with expression, implausibly arguing that creating a website for a so-called same-sex wedding would not compel Smith’s speech.
Writing for the majority, Justice Gorsuch dismantled the dissent, noting that the history of public accommodations and civil rights had no bearing on the matter, and that Sotomayor’s argument that the question involved service rather than expression was contradicted by both the state of Colorado and the Tenth Circuit Court. He also noted how the dissent contradicted itself.
Still, the problems with Sotomayor’s dissent extend beyond the issues identified by Gorsuch. When Sotomayor appealed to the murder of Matthew Shepard and the mass shooting in Orlando’s Pulse Nightclub as examples of the dangers LGBT people face in the country, she was appealing to a revisionist history. The motive for Matthew Shepard’s murder is at best unsettled and likely had nothing to do with his sexual orientation. The shooter at the Pulse nightclub had pledged allegiance to ISIS and apparently targeted Pulse because of its lax security.
While Sotomayor may simply have been sloppy–relying on popular rhetoric without investigating further–it is more likely that these are examples of her worldview commitments. Specifically, she employed standpoint epistemology and intersectionality, the idea that truth is ultimately unknowable so we can only rely on identity markers like race, ethnicity, gender identity, and sexual orientation to determine what is right and wrong.
In standpoint epistemology, minorities have greater insights about the world because they know how to operate both in their own setting and in the dominant culture. This is the reasoning behind Sotomayor’s infamous statement given at the University of California, Berkley before her nomination: “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”
However, though Sotomayor may assume her lived experience offers a fuller view of reality, her perceptions become more authoritative to her than the facts of reality. Rather than committing to an objectivity, she can determine via cultural narratives of oppression what happened regarding Shepard’s murder or the Pulse shooting, or the conflict between Lorie Smith and the state of Colorado. Even worse, the objective facts (at least those that counter the accepted narratives) in these cases can be ignored, neglected, or revised.
Since objective truth doesn’t exist, justice is left to the eye of the beholder. Once, in a presentation to congressional staffers, Sotomayor was asked about the foundation of justice in our country. She replied by admitting that she had never considered the question “in that form before.” And then after a long pause said something like, “I suppose for me, it would be the inherent dignity of all people. But I don’t know what it should be for anyone else” (emphasis added).
While it may be surprising that a sitting Supreme Court justice had never considered the question of justice, her response is fully consistent with her previous speech delivered at Berkley. In it, she claimed that “[t]o judge is an exercise of power,” not a matter of interpreting law. In her dissent to the majority opinion that ended affirmative action in college admissions, she accused the majority decision of “an unjustified exercise of power.” In other words, if judging is only a matter of power, no amount of facts could ever justify a decision she did not agree with.
This pair of dissents should not be viewed in a vacuum. Rather, they are based on a worldview rooted in Neo-Marxist ideas of oppression and class struggle and on postmodern ideas about knowledge and power. This is why it is important that a biblical vision of truth, justice, government, and the human person guide our thinking, not only so we can counter the false ideas shaping so much of our culture but so that we can offer a better way.
This Breakpoint was co-authored by Dr. Glenn Sunshine. For more resources to live like a Christian in this cultural moment, go to breakpoint.org.
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