Can a “Christian” wedding website designer refuse to serve same-sex couples?

The court ruled in the famous “gay wedding cake” case four years ago, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, about a baker who refused to serve same-sex couples based on their religious beliefs. , raised a similar issue. The judge ruled in his favor, but on narrow grounds, avoiding direct constitutional issues of religious freedom and freedom of speech.

Now another Colorado lawsuit regarding free speech and same-sex marriage has come to court. 303 Creative v. Elenis. As a professor of law and education with a particular focus on First Amendment issues, I see this case as two fundamental issues that seem to routinely clash in twenty-first century America. I think it highlights the tension between the two interests.

For example, on August 30, 2022, another similar case was decided, this time in Kentucky. A federal court has ruled in favor of a Louisville wedding photographer who sued over the city’s “fairness ordinance,” which prohibits discrimination based on sexual orientation or gender identity. She argued that the law violated her religious beliefs and right to free speech, which the court agreed with, stating that “the government is asking singers, writers and photographers to send messages they don’t support.” We cannot force you to clarify,” he said.

Freedom to Speak – or Freedom to Be Silent

Graphic artist Lorie Smith is the founder and owner of a studio called 303 Creative. According to court documents, Smith is generally happy to serve LGBTQ clients. She is reluctant to do so, saying it goes against her Christian beliefs.

However, under Colorado’s anti-discrimination law, refusing service to someone based on “disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.” is discriminatory and illegal.

In 2016, Smith sued a member of the state’s Civil Rights Commission and the Attorney General of Colorado. would violate First Amendment rights.

The constitutional right to freedom of “speech” has historically been understood to cover different ways in which people express themselves, including writing, art, and protest. But it not only protects the right to protect one’s speech, it also protects the right not to speak in the first place.

Through her attorney, Smith also argued that requiring her to create a website violated her First Amendment right to exercise her religion freely.

Road to SCOTUS

A federal trial court in Colorado denied Smith’s request to block antidiscrimination laws in 2019. When she appealed, the Circuit Court agreed with the earlier ruling. She went against her beliefs.

The court said that while protecting diverse perspectives is “a good thing in itself,” fighting discrimination is “as essential to democratic ideals as individual autonomy.” increase.

In a lengthy dissenting opinion, the Chief Justice emphasized Smith’s argument for coerced speech, noting that the court “did not allow the government to compel Ms. Smith to compose messages that would go against her conscience.” criticized for taking a “deserved – and novel – stance”.

Smith appealed to the Supreme Court, which agreed to hear her case in February 2022, limited to the issue of free speech rather than religious freedom. The question for nine judges to decide is “whether applying the Public Lodging Act to compel artists to speak or remain silent violates the First Amendment’s free speech clause.”

case key?

So how do judges make decisions? The Supreme Court may have hinted at its initial demeanor when it announced it would hold a hearing. The judge zoomed in on a legal standard called “rigorous scrutiny,” as he did with his previous case on the matter, Masterpiece Cakeshop.

Under rigorous scrutiny analysis, the most rigorous form of judicial review, government restrictions on fundamental rights must be justified by compelling national interests in order to be upheld. In other words, restrictions promote the best interests of governments and must be strictly aligned with those goals. In this case, it prevents discrimination based on sexual orientation.

However, the Supreme Court appeared skeptical that Colorado’s anti-discrimination practice could survive this test, writing: Restrict her from explaining her own faith. “

Where the Supreme Court applies rigorous scrutiny, it rarely upholds government restrictions on constitutional rights. This could hint at Smith’s victory.

Another possible sign, again in favor of Smith, includes forced speech from Janus vs. State, County, and Local Government Employees of the United States, Council 31, Illinois, 2018 Here in a lawsuit in 2008, the Supreme Court ruled against a nonunion public employee who challenged an Illinois law requiring the union to pay its fair share on behalf of his colleagues for the costs associated with the negotiation process. I have ruled in my favour. The court found the employee’s allegation that because the union upheld a position to which the employee disagreed, his having to pay a fee violated his First Amendment rights as a form of coerced speech. agreed.

second chance

On the other side of the controversy is a vital interest in allowing same-sex couples and others in the LGBTQ community to live free from discrimination based on sexual orientation.

In Bostock v. Clayton County in 2019, the Supreme Court interpreted Title VII of the Civil Rights Act of 1964 as extending protections against workplace discrimination to gay and transgender individuals. However, the court has not yet addressed the conflicting rights at issue in 303 Creative.

The key question, therefore, seems to be whether individuals can claim services from artists and those engaged in expressive activities. .

So it remains to be seen whether 303 Creative will set a new precedent for balancing First Amendment freedoms while protecting others from discrimination. After all, Masterpiece Cakeshop got around the constitutional issue. The court ruled in favor of the baker based in part on the Colorado Commission members’ comments about his beliefs. The majority found these comments violated the state’s First Amendment obligation to maintain religious neutrality while avoiding hostility to faith-based beliefs and views.

The court has not set a date for oral arguments and is unlikely to issue a decision until near the end of its term in June 2023, but it promises to be one of the most high-profile decisions next year. increase. And regardless of the outcome, 303 Creative could spark even more controversy.

Charles J. Russo is the Joseph Panzer Education Chair of the School of Education and Health Sciences and a Law Research Professor at the University of Dayton.

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