Here we go again?
That’s a logical question, in light of the news that — once again — church-state activists on left and right are preparing for more U.S. Supreme Court arguments involving the state of Colorado, a traditional Christian believer, LGBTQ rights and the First Amendment.
That was the news hook for this week’s “Crossroads” podcast (CLICK HERE to tune that in). But to understand that conversation, it really helps to dig into a key passage or two in the majority decision in that 2019 SCOTUS case focusing on Masterpiece Cakeshop and the Colorado Civil Rights Commission (full text .pdf here).
So, all rise. The writer is, of course, then Justice Anthony Kennedy:
The laws and the Constitution can, and in some instances must, protect gay persons and gay couples in the exercise of their civil rights, but religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression. While it is unexceptional that Colorado law can protect gay persons in acquiring products and services on the same terms and conditions as are offered to other members of the public, the law must be applied in a manner that is neutral toward religion.
The result was one of those narrow decisions much beloved by Chief Justice John Roberts.
Then, what you hear in this next passage is the sound of Kennedy punting the crucial religious-liberty decision in this First Amendment case into the mists of the future:
The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.
At that point, Kennedy retired from the high court. You could almost hear him whispering to future justices: “Good luck with that.”
Now, carefully read the top of this new Washington Post report, “Supreme Court will hear another clash pitting religious rights against laws protecting LGBTQ people from discrimination.”
The Supreme Court … said it will decide whether a Colorado designer can tell same-sex couples she will not create a website for their weddings, reviving the issue of where to draw the line between someone’s religious beliefs and protections against discrimination for LGBTQ people.
At issue is the same Colorado anti-discrimination law that came before the court in 2018, when the justices ruled for baker Jack Phillips, who refused to create a wedding cake for a gay couple. The justices decided the Colorado Civil Rights Commission displayed bias against religious views in ruling against Phillips. But they did not resolve the larger question of when businesses may invoke religious objections to refuse service.
The court restricted the new case to whether applying Colorado’s law “to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.”
Note that the Post headline stresses “religious rights,” while the story states that the arguments will focus on “free speech.” Interesting.
Meanwhile, here is The Big Question for future coverage: Who made the decision to accept this case for SCOTUS, while declaring that the case would only focus on the free-speech elements of this clash — as opposed to the First Amendment’s defense of the free expression of religious beliefs and traditions?
What was that sound? Did anyone sense the chief justice punting Kennedy’s earlier dilemma further into the misty future?
This new case also offers another important twist on the earlier drama involving Phillips and his cake business — which created a wide array of baked goods and cakes, in addition to his signature, unique, one-of-a-kind wedding cakes.
Note: While Phillips declined to make a cake containing artistic content celebrating a same-sex marriage, he offered the gay couple everything else in his store, including items for the reception and full-scale wedding cakes to which they could add toppers or content of their own.
This new case is different. Back to the Post report:
According to her filings in the Supreme Court, Lorie Smith is an artist and website designer who plans to go into the wedding website business. She wants to create only websites “that promote her understanding of marriage as between one man and one woman, and she would like to post an online statement explaining she can only speak messages that are consistent with her religious convictions.”
But Colorado’s Anti-Discrimination Act (CADA) does not allow businesses to withhold their services from LGBTQ customers. It and 20 other states specifically forbid discrimination based on sexual orientation.
So far, I have not run into coverage of this new case that contains information about how these kinds of cases can be argued in terms of concepts linked to the Religious Freedom Restoration Act.
For example: Is Lorie Smith part of a religious tradition that has centuries of consistent doctrine on the definition of marriage?
Also, do same-sex couples have other website options in the high-tech world of greater Denver?
Note how the RFRA concepts loom in the background of this quote from the New York Times coverage (“Supreme Court to Hear Case of Web Designer Who Objects to Same-Sex Marriage”):
“To be sure,” Judge [Mary Beck] Briscoe wrote, “L.G.B.T. consumers may be able to obtain wedding-website design services from other businesses; yet, L.G.B.T. consumers will never be able to obtain wedding-related services of the same quality and nature as those that appellants offer.”
Judge Briscoe added that “Colorado may prohibit speech that promotes unlawful activity, including unlawful discrimination.”
Still, as that story notes, both sides are gearing up for a free-speech battle. Thus:
In dissent, Chief Judge Timothy M. Tymkovich, citing George Orwell, said “the majority takes the remarkable — and novel — stance that the government may force Ms. Smith to produce messages that violate her conscience.”
“It seems we have moved from ‘live and let live,’” he wrote, “to ‘you can’t say that.’”
Kristen Waggoner, a lawyer with Alliance Defending Freedom, which represents Ms. Smith, said the antidiscrimination law violates the First Amendment’s protection of free speech. “Colorado has weaponized its law to silence speech it disagrees with, to compel speech it approves of and to punish anyone who dares to dissent,” she said in a statement.
Will this be the same battle all over again, with the religious-liberty issues being pushed aside? There are new voices on the high court that may decide otherwise.
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FIRST IMAGE: Colorado flag gay-pride sticker, on sale at Amazon.com