First, we don’t allow the beliefs of business owners to trump nondiscrimination laws. See Sotomayor, J., dissenting. Second, it ignores the goals of the organization behind the case. Alliance Defending Freedom is not a free speech organization. In this sphere, they are an organization that wants to marginalize LGBTQ people. ... Sure, their clients are not them, and the case must be decided on its own terms (which, of course, is also in question here, stipulations notwithstanding). That does not, however, mean analysis of the case, decision, and effects must be considered the same isolated way. Third, this defense ultimately ignores 2023 — both in terms of the growing anti-LGBTQ sentiment in public and in government and in light of the federal judiciary right now. Yes, the Supreme Court might ultimately rein in the most extreme outlier decisions that follow 303 Creative, but, again, look at the mifepristone case. It’s still not resolved .... This is a real, not hypothetical, cost.
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