Supreme Court to hear latest conflict between faith and gay rights

Follow our live coverage of Supreme Court hearings that draw parallels between free speech and gay rights.

Littleton, Colo. — Ten years ago, a Colorado baker named Jack Phillips turned down a gay couple who asked him for a wedding cake, saying state laws prohibiting discrimination based on sexual orientation must obey him. faith.

The dispute was a heated flashpoint in a culture war that eventually reached the Supreme Court. But Justice Anthony M. Kennedy’s slim majority opinion in 2018 did not address the question of whether the First Amendment allows discrimination by businesses that are open to the public based on the religious beliefs of their owners. In fact, the opinion acknowledges that the court just kicked the can to the curb and will have to decide “some future dispute involving similar facts.”

That controversy has now come, and the facts are indeed similar. A graphic designer named Lorie Smith works just a few miles from Mr. Phillips’ bakery Masterpiece Cakeshop challenged the same Colorado law on the same grounds.

“He’s an artist,” the woman said. Mr. Smith spoke of Phillips. “I’m an artist too. We shouldn’t be punished for standing up for what we believe in.”

The underlying arguments in the case, which will be presented in the Supreme Court on Monday, are both familiar and polarizing.

On the one hand there are those who say that the government should not force them to violate their principles in order to earn a living. At the other end of the spectrum are same-sex couples and others who say they have a right to equal treatment from businesses that are open to the public.

Both sides say the consequences of the court’s ruling could be huge, though for different reasons. Mrs. Smith’s supporters say the state’s ruling would allow the government to compel various artists to state things that are inconsistent with their beliefs. Her opponents say a ruling in her favor would break anti-discrimination laws and allow expressive businesses to deny services to people such as black people or Muslims based on hateful but sincere beliefs.

The courts that will hear these arguments have changed since the 2018 decision. After Justice Kennedy’s retirement later that year and Justice Ruth Bader Ginsburg’s death in 2020, the court has shifted to the right and has been particularly receptive to religious liberty arguments.

Also, when the Supreme Court overturned Roe v. Wade in June, Justice Clarence Thomas filed a concurring opinion calling for the cancellation of same-sex marriage rights. Supporters of gay rights fear the ruling against the lady. Smith would undermine that right, labeling same-sex couple marriage a second-class union unworthy of legal protection.

The court had an earlier opportunity to revisit larger issues in the Masterpiece Cakeshop case, but it rejected appeals by a Washington state florist and an Oregon bakery owner, who said they should not be required to create compositions for same-sex unions.

The decision to hear Ms. Smith’s case was likely driven by several factors: an increasingly assertive six-justice conservative supermajority, a feeling Ms. Smith’s design is more likely to be protected by the First Amendment, and at least some justices want to reverse or limit Obergefell v. Hodges, the 2015 decision that established same-sex marriage rights.

Mrs. In an interview from her modest but cheery studio in an office building in suburban Denver, Smith sat next to a plaque that echoed the Bible verse: “I am God’s handiwork.” She said she was delighted Create graphics and websites for anyone, including LGBTQ people. But she said her Christian faith did not allow her to create a message celebrating same-sex marriage.

“When I chose to start my own business as an artist creating custom expressions,” she said, “I didn’t give up my First Amendment rights.”

Colorado Attorney General Phil Weiser countered that there is no constitutional right to discriminate. “Once you open your doors to the public, you have to be there for everyone,” he said. “You can’t turn people away because of who they are.”

Court in New Case 303 Creative v. Elaines, no. 21-476. Writing for the majority in 2018, Justice Kennedy said. Phillips was unfairly treated by members of the Civil Rights Commission who made anti-religious remarks.

gentlemen. Phillips’ limited victory leaves open whether he has a constitutional right to refuse to make custom cakes for LGBTQ people. In fact, a Colorado appeals court recently heard his arguments in an appeal against a ruling against him in a case brought by a transgender woman.

In the Supreme Court, Mr. Phillips bases his claim on the free exercise of his rights to freedom of religious belief and speech. Mrs. Smith also asked the Supreme Court to consider both grounds, but the justices agreed to decide only “whether the application of public convenience laws to compel an artist to speak or remain silent violates the Free Speech Clause of the First Amendment.”

Both Mr. Phillips and Ms. Smith are represented by the League for the Defense of Freedom, a conservative Christian law firm and advocacy group that has litigated numerous cases for clients opposing abortion, contraceptive insurance and gay and transgender rights.

gentlemen. Colorado Attorney General Weiser said there is one important difference between the Masterpiece Cakeshop case and the new case. gentlemen. Phillips refused to serve the real people David Mullins and Charlie Craig who made the civil rights charges, saying they were insulted and humiliated. The details of the encounter were important in assessing legal issues, he said.

Mrs. Smith, by contrast, filed the lawsuit before facing any punishment.

“This is a fabricated case,” Mr. Visser said. “No website has been made for weddings yet. Nobody is being turned away. We’re in a purely hypothetical world.”

Mrs. Smith countered that she should not risk a fine for exercising her rights.

“Colorado intends to fully support me if I continue to create for my wedding in accordance with my beliefs,” she said. “Instead of waiting to be punished, I decided to take a stand to protect my First Amendment rights. I don’t deserve to be punished until I challenge unjust laws.”

The two Colorado cases differ in another way, at least according to some legal scholars, notably Dale Carpenter, a law professor at Southern Methodist University. In the Masterpiece Cakeshop case, Professor Carpenter, along with UCLA’s Eugene Volokh, filed a letter in support of the gay couple.

But in the new case, they took the lady. Smith there. Professor Carpenter explained in an interview that he did so in part because he had dedicated his career to promoting gay rights.

“In my opinion, freedom of speech is essential to the cause of LGBT rights,” he said. “It couldn’t have progressed without the liberties guaranteed by the First Amendment. I think those things go hand in hand.”

gentlemen. Professor Carpenter added that Phillips’ cakes should not be protected by the First Amendment, but Smith’s graphics and website could.

“Cakemaking is neither an inherent expression nor a traditional one,” Professor Carpenter said. “People make cakes for taste or nutrition.”

Mrs. Smith’s design work is like no other, he said. It involves, he said, “activity that is expressive in nature, including through the usual medium of communication, such as writing or speaking.”

Kristen K. Waggoner, an attorney for the League Defending Freedom, agreed that the two cases are different.

“It’s easier than Masterpiece,” she said. “We have pure language here.”

That was beside the point, said David D. Cole, the legal director of the American Civil Liberties Union, who represented the couple at Masterpiece Cakeshop. As long as Miss Smith’s company is open to the public and selling certain services, he said, it must comply with state antidiscrimination laws.

A ruling in favor of Ms. Smith and her company, 303 Creative, would have devastating consequences, Mr. Smith. Cole said.

“If 303 Creative wins here, we’ll be living in a world where any business with great service can put up a sign that says ‘No Women, No Jews, No Blacks service’ and claim a First Amendment right to do so,” he said. “I don’t think any of us want to live in that world, nor do I think the First Amendment requires us to live in that world.”

A three-judge panel of the 10th U.S. Circuit Court of Appeals in Denver ruled against Ms. Smith even accepted most of her arguments.

“Creating a wedding website is pure speech,” Judge Mary Beck Briscoe wrote for the majority, which Colorado’s anti-discrimination law mandates for women. Smith and her company “create custom websites that they wouldn’t otherwise create.”

That means antidiscrimination laws must withstand the harshest form of judicial scrutiny, which requires states to demonstrate a compelling interest and show that the law is specifically tailored to address that interest, Judge Briscoe wrote. . Judge Briscoe said Colorado proved both.

“Colorado has a strong interest in protecting the dignity interests of members of marginalized groups and their material interests in accessing the marketplace,” Judge Briscoe wrote.

Chief Judge Timothy M. Tymkovich dissented, saying, “The majority took the unusual and novel position that the government might force the lady to leave. Smith created a message against her conscience.”

“It seems we’ve gone from ‘better to die’ to ‘you can’t say that’.”

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