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Religious liberty before the court

The justices have a chance to stop the misuse of civil rights laws


Members of the Supreme Court sit for a group portrait on Oct. 7. Associated Press/Photo by J. Scott Applewhite

Religious liberty before the court
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A new Supreme Court term began this month, and it’s shaping up to be another blockbuster. The high court will decide cases implicating affirmative action and voting redistricting. Among other red-hot oral arguments expected this fall is the case of Lorie Smith, a graphic designer who wants to create wedding websites, but only in accord with her biblical convictions about marriage. She wants to be transparent and tell her prospective customers, right on her website, that her services are provided in accordance with the conviction that marriage means the union of a man and a woman.

The Colorado law at issue, which is also the same law that was relevant in the Masterpiece Cakeshop case, prohibits public businesses from refusing to serve LGBTQ people. It also contains a clause prohibiting anyone from stating that they intend to discriminate against what the courts identify as a protected class. The 10th U.S. Circuit Court of Appeals ruled against Smith’s free-speech and free-exercise challenges to the law.

In its decision, the appellate court ignored the fact that Smith is not discriminating against any person, because she would refuse the request for such a website whether she was asked by the couple or their heterosexual wedding planner. The sexual orientation and gender of the requester does not matter. It is the message on the website that matters.

Moreover, Colorado concedes that it allows web designers to refuse to create websites for messages that the designer finds objectionable. For example, Smith could refuse to design a website proclaiming that “God is Dead.” But the state will not allow her to decline service for a website for messages about marriage. This is inexcusable hypocrisy.

Adding to its analytical fallacies, the 10th Circuit stated that although Smith’s website disclaimer is pure speech subject to full protection under the Free Speech Clause, Colorado could nonetheless censor it because the state has a compelling interest in combating discrimination against gay people. More specifically, the 10th Circuit said that the state has a compelling interest in ensuring LGBTQ people can access a unique service that only Smith can provide.

But this conclusion is dangerous. Civil rights laws were never designed to ensure that protected classes get access to creative services. They were designed to ensure those classes are not shut out of the marketplace by monopolies whose discrimination will impact interstate commerce like common carriers, hotels, or restaurants. In this case, Smith’s business is part of a competitive market where consumers can choose to do business with her or another web designer. Her decision to provide services for limited events does not impact the national economy. It impacts her ability to attract a broader clientele.

Under the 10th Circuit’s unprecedented analysis, every person is a monopoly when he or she provides any service.

But the 10th Circuit skirted around this hurdle in the state’s case with an astounding declaration that every Smith-created website is unique and not available anywhere else, and that makes it a monopoly and not part of a competitive market. Under this unprecedented analysis, every person is a monopoly when he or she provides any service because no two people will provide a service in exactly the same manner.

While it remains to be seen how the Supreme Court will deal with the 10th Circuit’s arguments against Smith, it only agreed to answer these free speech questions. It mysteriously declined to hear the free exercise claims. This was no doubt frustrating to many who are eager for the court to decide the underlying free exercise question that it avoided in Masterpiece Cakeshop. That is, whether the Free Exercise Clause forbids the government from forcing religious business owners to participate in events that violate their consciences.

But I am not convinced that the court is in any hurry to decide such a question. The justices are picky about the cases they accept in this space. Not long ago, they declined to hear the case of Washington florist Barronelle Stutzman, who was eventually forced into retirement over her decade-long legal battle. And cakebaker Melissa Klein, who was forced to close her business after Oregon fined her over $100,000, is currently trying for a second time to get the court to review her case.

If nothing else, the Supreme Court must take the opportunity to clarify the role of civil rights laws and remind governments that these laws are intended to prohibit invidious government discrimination in public accommodations. They are not intended to force a business owner to perform any service that anyone in a protected class might demand.

In Smith’s case, Colorado extends this perversion of civil rights even further by telling her that she cannot even say what she believes. But there is no liberty without the freedom to follow, and not violate, one’s conscience.


Keisha Toni Russell

Keisha Toni Russell is counsel at First Liberty Institute and a fellow at the Center for Religion, Culture and Democracy.


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