Religious rights at the Supreme Court

MYRNA BROWN, HOST: Up next, a historic day at the U.S. Supreme Court. Yesterday, the justices heard oral arguments in the case titled 303 Creative versus Elenis. It’s a case that looks at the boundary between LGBT demands and First Amendment guarantees of religious liberty and free speech.

NICK EICHER, HOST: Plaintiff Lorie Smith of Colorado is the owner of 303 Creative and she calls herself a Bible-believing Christian who wants to design websites for weddings that are consistent with how the Bible spells out marriage—that is, one man, one woman, for life. But Colorado’s anti-discrimination act says she must put aside her religious beliefs and offer her services for so-called same-sex weddings.

BROWN: The case is a watershed moment in the history of religious rights, but it’s not the first time a Christian has asked the nation’s highest court to protect First Amendment rights of creative professionals.

Joining us now to talk about some of the milestones leading up to this case is WORLD religious liberty reporter Steve West.

Welcome, Steve.

STEVE WEST, REPORTER: Thanks, it’s great to be here, Myrna to talk about what truly is a very important case.

BROWN: Steve, you have covered quite a few cases of Christian wedding professionals who clashed with same-sex couples. What’s special about Lorie Smith’s case?

WEST: Smith’s case is very similar to a rash of other cases, with one exception: the state in this case made a number of stipulations–that is, agreed to a number of facts which put this case in a unique posture. Colorado agreed that Smith is creating custom, one-of-a-kind websites, and she serves clients of all different backgrounds. So that made it a clear-cut candidate for a ruling by the court. It comes down to whether the state can compel a web designer like Smith–and by implication, other creative professionals–to create something which contains messages she disagrees with.

BROWN: Is this a case about religion?

WEST: No, and yes. Smith is a Christian whose Biblical belief is that marriage is only between one man and one woman. Yet the court did not accept the case based on a religious liberty argument but on free speech grounds. What Smith is arguing is that no one, religious or nonreligious, can be compelled by the government to speak a message they disagree with. Invoking its broad public accommodations law, Colorado is saying this is not primarily about message but status: Once she decides to create websites for weddings she must create them for all clients, even gay clients who want to celebrate a same-sex wedding.

BROWN: I’m remembering another Supreme Court case — Masterpiece Cakeshop versus Colorado —that had to do with the same law. Why does this keep coming up?

WEST: One reason is the increasing breadth of laws on public accommodations that used to be limited to what most people considered businesses open to the public: restaurants, hotels, and other types of storefront retail businesses that aren’t in the business of creating and fashioning messages. But another reason is that gay marriage wasn’t an issue until the Supreme Court struck down state laws against the practice. And finally, I think that some in gay community conflate disagreement with discrimination–or even hate. And it keeps coming up because in the 2018 case involving Jack Phillips and his bake shop, Masterpiece Cakeshop, the court issued a very narrow ruling based solely on Colorado officials’ overt hostility toward Phillips’ religious beliefs.And so here we are again.

BROWN: Has the court come close to resolving the question since then?

WEST: There have been several cases where the justices had the opportunity to weigh in on the issue and didn’t. Much to many religious liberty advocates’ disappointment, it declined to review a case against Washington state florist Barronelle Stutzman, who was fined by the state for declining to do flowers for a same-sex wedding. Stutzman ended up settling that case, selling her business, and retiring after a long-fought battle. Another recent case had to do with a child-placing agency in Philadelphia that was defending its right to work with foster families who share its Biblical views about marriage. The agency won the case, but, again, the court didn’t get to the heart of the First Amendment issue.

BROWN: Is the court ready to settle the issue with Lorie Smith’s case? Or do you think they will kick the can down the road again?

WEST: Most agree that the court appears likely to rule in Smith’s favor, with conservatives in a majority at this point and given the clues from the questioning today. But with the stakes high, it depends on where the lines are drawn. And about that we’ll just have to see. Given this court’s different makeup since 2018’s Masterpiece Cakeshop ruling, I expect a bit bolder ruling thai time around.

Meanwhile, there are other Christian creators waiting in the wings. Courts across the country have issued varying decisions on the matter–some in favor of creators, some not, from videographers to photographers to bloggers and bakers. This ruling could end it for Lorie Smith, but will it end it for them?

BROWN: Steve West writes about religious liberties for WORLD Digital. You can read his work at WNG.org. You can also subscribe to his free weekly newsletter on First Amendment issues, called Liberties. Steve, always good to have you on. Thank you!

WEST: You’re welcome.

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