Supreme Court hears arguments in another case related to first amendment rights and LGBTQ issues

The US Supreme Court debated at length with lawyers on Monday (December 5) whether a state has the right to compel speaking in the latest case involving the intersection of religious freedom and same-sex marriage.

The judges heard oral arguments for more than two hours in a challenge from a Colorado policy maker that requires him to create custom websites for same-sex weddings in violation of his religious beliefs. After two lower courts ruled in favor of the state, the Supreme Court agreed to decide whether the government can use a public accommodations law, in this case, the Colorado Anti-Discrimination Act (CADA), to force an artist to speak or stay. silence without violating the First Amendment protection of free speech.

The high court is expected to issue an opinion before it adjourns next summer in what is so far the most important case of its tenure involving the rights of religious adherents.

Lorie Smith, owner of 303 Creative in the Denver area, designs websites for a variety of causes and clients, including people who identify as lesbian, gay, bisexual, or transgender. However, she will not create same-sex wedding websites due to her belief as a Christian that marriage is only between a man and a woman.

Smith’s refusal to design a website for a same-sex ceremony is based on the message it would send, not the people involved, Kristen Wagoner told the Supreme Court during oral arguments Monday.

Smith “serves all people and decides what to create based on the message, not who is asking for it,” said Wagoner, president and general counsel of Alliance Defending Freedom.

‘Creating speech’

Colorado requires her to “create speech, not just sell it,” Wagoner told the high court. The state “says it can compel talk on the same issue, but Ms. Smith believes that opposite-sex marriage honors Scripture and same-sex marriage contradicts it. If the government can label this speech as equivalent, they can do it for any speech, be it religious or political,” she said.

While Wagoner contended that Smith’s refusal to design websites for same-sex ceremonies is based on the message he would be communicating about marriage by doing so, attorneys for Colorado and the United States argued that it is based on “status.” of the couple seeking the service. .

Colorado Attorney General Eric Olson told the judges that his business policy is “status-based discrimination” since CADA includes sexual orientation as a protected class. Brian Fletcher, the assistant US attorney general, agreed with Associate Justice Sonia Sotomayor that Smith is seeking “a state-based exception” to the CADA. Sotomayor went on to say that Smith is not seeking “an exception based on speech.”

“[I]If she’s discriminating based on status, and that includes whether she’s defining the message or the product based on the status, defining the what by the who, that’s not right,” Fletcher said.

Supreme Court precedent in a 1995 opinion should govern this case, Wagoner told the justices. In a 7-2 decision, the high court ruled that organizers of the Boston St. Patrick’s Day Parade did not violate a public accommodations law by refusing to allow a lesbian, gay and bisexual organization to participate.

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compelling a message

The First Amendment “is broad enough to cover both the lesbian website designer and the Catholic calligrapher,” Wagoner said. “The line is that no one anywhere in any debate should be forced to deliver a message that violates their core convictions…”

The magistrates offered numerous hypothetical situations in their cross-examination. Sotomayor asked if artists’ speech would be protected if they refused to provide wedding services for an interracial or disabled couple based on their beliefs. Associate Justice Ketanji Brown Jackson asked about a photography business refusing to include black children in scenes with Santa Claus.

Jackson’s hypothetical message is not in the photo, Wagoner said. In response to a follow-up question, he explained that the Supreme Court did not say in its 2015 decision legalizing same-sex marriage that religious objections to gay marriage are equivalent to objections to people of color.

Sotomayor, Jackson, and Associate Justice Elena Kagan, in particular, appeared to be skeptical of Wagoner’s arguments, while conservative justices such as Samuel Alito and Neil Gorsuch appeared to be more receptive to his points.

Later, Brent Leatherwood, president of the Southern Baptist Ethics and Religious Liberty Commission, told Baptist Press: “Christians, for 2,000 years, have said that marriage is a picture of the Gospel. It was clear from today’s oral arguments that several justices had never encountered this notion on a previous occasion. This is unfortunate, as it is critical to understanding why a Christian creative professional would object to being forced by the state to say something contrary to this deeply held belief.

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‘what’ not ‘who’

“That is why Judge Gorsuch was absolutely right when he seemed to suggest that this case is not about who is being notified ‘but what’ the state of Colorado is compelling the creator of the speech to do,” he said in written comments.

“Today’s proceedings reveal why the court should rule in favor of 303 Creative, because to do otherwise would be tantamount to giving the government the keys to a paver to ride over Christian private business owners who disagree with the cultural notions about marriage and family. be in fashion at a given time.

In a 7-2 opinion in 2018, the judges ruled in favor of Colorado cake artist Jack Phillips in a similar case under CADA. Phillips had refused to design and decorate a cake for the two men’s wedding.

However, the high court’s decision was not an expansive victory for religious liberty. The judges found that the Colorado Civil Rights Commission demonstrated “religious hostility” toward Phillips, owner of Masterpiece Cakeshop, but said that similar facts in different contexts can produce different rulings.

The case is 303 Creative v. Elenis.

EDITOR’S NOTE — This Article was written by Tom Strode and originally published on baptist Press, news service of the Southern Baptist Convention.