Our law and policy infrastructure should simply accept many elements of our digital sphere as a place of public accommodation. Not to do so seems, at best, a silly view of the law and, at worst, more darkness to an already mysterious world.
The intersectionality of civil rights did not truly internalize for me until the oral arguments as to the rights of our LGBTQIA+ community and the reasonable request for equal inclusion during these times in which Americans experience regularly profound levels of change and innovation.
A case before the U.S. Supreme Court shows how our definition of places of public accommodations can segregate our fellow citizens, and more broadly, how rights of one group so diminished does correlate to the intersectional struggle for overall disability rights.
Some in our society view the social contract in a way that allows them to believe that as a baker or as a butcher or as a candlestick maker their businesses must not necessarily be classified as places of public accommodation. On Dec. 5, 2022, the Supreme Court heard 303 Creative LLC v. Elenis, No. 21-476 related to a website design company and its religious claims. A Colorado marketing and graphics firm contends that a public-accommodation law compelling it and its employees to provide service to LGBTQIA+ clients violates the free speech clause of the First Amendment.
The U.S. District Court and the U.S. Court of Appeals for the 10th Circuit ruled against the marketing firm, citing an extensive line of statutes and Supreme Court cases dating to the 1964 Civil Rights Act. First Amendment claims related to religious liberty, actually obfuscating bias instead, dishearten me as a person of faith.
The question presented to the court is whether a constitutionally protected free speech right exists to refuse to design wedding websites for same-sex couples, notwithstanding state public accommodations laws to the contrary.
In legislation and indeed in the courts, how an issue be defined shows its overall policy agenda. The better question should have been: Should a place of public accommodation exist as a major construct of our civil rights law? Should civil rights laws be subjects to the evangelical beliefs of its holder?
I agree with the American Bar Association’s amicus brief filed in August 2022. If the Supreme Court allows a claim of religious liberty to infuse our legal understanding related to places of public accommodations, our body of civil rights requirements and laudable achievements will be vitiated.
Specifically, a split of federal Circuit Courts of Appeals interpret that the local online coffee shop may possess different forms of legal status based on whether a physical place is associated with a website. In the view of some Federal Circuits, the barista must see my third guide dog in addition to me ordering that coffee online. (In other words, there must be a Nexus among an online space and a brick-and-mortar place.)
Laypeople, but not some judges, have seemingly grasped Americans live in remarkable times where goods and services are no longer solely, if regularly, purchased, at a physical store. To be fair, the U.S. Department of Justice needs to promulgate an authoritative Final Rule on the topic updating the Americans With Disabilities Act of 1990, as amended.
The poem by Martin Niemöller reminds us in part: First they came for a group (think of one important to you) and I did nothing. Ultimately, then they came for me. Specifically, the next Maryland secretary of disabilities must undertake an active advocacy role on technology inclusion policy, including emerging technologies. Because disability has intersectionality with other groups, the secretary must find partnership with all other minority groups who need an attentive ear about ensuring guardrails as part of an affirmative policy related to emerging technology.
In conclusion, the fundamental shift in technology and therefore society proves complicated. In a democratic republic, a range of reasonable views – from the left and the right – should inform our public discourse. However, one would hope that those views either build community or are not plainly antiquated, both in attitude and in acceptance of technology.
Gary C. Norman, Esq., LL.M., is a past chair of the Maryland Commission on Civil Rights. He can be reached at (410) 241-6745.