Document Type

Article

Publication Date

2024

Abstract

In this essay, I will first describe and critique 303 Creative, a 2023 Supreme Court decision that subordinates LGBTQIA+ equality and nondiscrimination rights to an imagined intrusion into the free speech rights of a Christian business owner. Based upon her religious beliefs, the business owner claimed that Colorado’s public accommodations law, which prohibited discrimination based upon sexual orientation or gender identity (among other categories), violated her rights because it mandated that she serve the LGBTQIA+ community. Next, this essay shares insights from the recent Awakened decisions of Inter-American Human Rights institutions to demonstrate a path towards achieving justice for LGBTQIA+ persons when a conflict emerges between high-value rights protected by the Constitution and human rights treaties. In the section that follows the discussion of the Inter-American developments, this essay describes the “Awakening the Law” paradigm specifically designed as a roadmap to achieving justice. This novel framework is especially informative as an analytical tool in conflicts in which high-value rights are on a collision course. Finally, I posit that 303 Creative is quintessentially Unawakened because its outcome, by uncritically favoring religion over equality rights, effects a blanket subordination of the non-discrimination and equality rights of LGBTQIA+ persons. Application of the Awakening paradigm, as informed by the Inter-American system’s jurisprudence, unveils the injustices generated by the 303 Creative decision and suggests a pathway to attaining a just result.

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