The Supreme Court’s decision last month to hear arguments in 303 Creative v. Elenis has renewed worry among some conservatives about the fate of religious liberty.
Lorie Smith, the woman at the center of the case, probably doesn’t have to worry, however. Owner of a Denver-based graphic design company called 303 Creative, Smith was told by two lower courts that if she wanted to create custom websites for traditional weddings, she would also have to create custom websites for same-sex weddings. Smith, a devout Christian, saw that as a violation of her religious belief that true marriage consists of the union of one man and one woman. The government could not compel her to sin against her conscience by saying something she didn’t want to say.
Her case seems like a slam dunk. She is writing words; words are speech; protecting freedom of speech is a fundamental tenet of the Constitution. Smith should prevail before a Supreme Court that breaks down on ideological lines at 6—3 conservative.
Christians cannot allow the free exercise clause to become secondary in religious freedom cases simply because it seems a less effective defense of embattled religious believers at the moment.
What frustrates religious liberty advocates is the Court’s ignoring pleas from Smith’s lawyers to rule on the Colorado anti-discrimination law’s violation of the First Amendment’s free exercise of religion clause. The Court, instead, decided to narrow the purview of its decision to “Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.”
This specification, coupled with two recent rulings in favor of religious liberty but decided on narrow grounds (Masterpiece Cakeshop and Fulton) and a denial of certiorari to a case that seemed tailor-made to establish clear religious liberty rights (Arlene’s Flowers), means wedding-vendor law will remain a confused, roiling mess, threatening the livelihoods of like-minded florists, bakers, photographers, and graphic designers victimized by government lawyers suing them for transgressing public accommodations laws. The Court looks like it once again, in 303 Creative, will fail to draw bright lines between what are religious freedom protections and what are the rights of LGBTQ persons to public accommodation.
It has also caused some to worry about the fate of the free exercise clause. Currently, there seems to be a tilting toward free-speech defense, vis-à-vis free exercise defense, in wedding-vendor cases.
The advantages of the former are apparent. Speech is universal, after all; everybody speaks. Free speech is an issue the general public can easily get its arms around, and even the nonreligious, or anti-religious, can rally round the right of a person to speak his mind, especially in the face of vigorous opposition.
Defending wedding vendors on the basis of speech avoids significant legal challenges as well. The religious liberty waters were roiled beyond calming some 30 years ago, in Employment Division v. Smith, a 1990 decision that ruled citizens could not be exempt from laws on religious grounds if the laws were neutral and generally applicable to everyone. What that means is that if religious behavior isn’t specifically targeted by the law, the law is constitutional. The anti-discrimination laws “violated” by wedding vendors are general laws applicable to everybody, so it becomes more difficult to mount a successful religious-liberty defense than it was prior to 1990.
Also, SCOTUS has in the past said the right to religious liberty is not absolute. It ruled in two famous cases, Bob Jones University v. the United States and Newman v. Piggie Park, that religious beliefs about race could not be used as a defense for exclusionary treatment. Gay advocates see wedding-vendor cases as a chance to reiterate this principle, in which anti-discrimination law trumps religious freedom protections.
However, the free-speech defense, while generally successful when used, can get lost in a welter of definitional confusion, as demonstrated in the Masterpiece Cakeshop oral arguments, when the liberal justices showered Alliance Defending Freedom’s Kristen Waggoner with a cascade of queries about what is speech and which parties, involved in a wedding, “speak” — the cake maker, the florist, the menu printer, the jeweler, the hairstylist, the makeup artist?
But, moreover, wedding-vendor cases pertain to religious issues: a wedding is a religious event, and the vendors that object to servicing gay weddings do so for religious reasons. They should be defended on the basis of their beliefs, not simply because their speech is being compelled. Legal scholar Austin Rogers explains,
Religious objectors are not primarily concerned with their speech as wedding vendors; they are concerned with their religious liberty and their consciences. Accordingly, the Free Exercise Clause should serve as the normative constitutional axis for wedding-vendor cases. Resolving wedding-vendor cases on free speech grounds is to apply a secular solution to a fundamentally religious problem.
Christians cannot allow the free exercise clause to become secondary in religious freedom cases simply because it seems a less effective defense of embattled religious believers at the moment. A robust defense of religious liberty will be crucial while living under a government that is becoming increasingly secular and is bent on driving religion out of the public square. (READ MORE from Tom Raabe: In Another Test of Religious Liberty for Wedding Vendors, Supreme Court Will Hear Website Designer Case)
We see governmental attacks on Christianity at every turn. In addition to the wedding-vendor cases, there are efforts to force coverages that transgress religious beliefs onto company health plans, to force religious adoption agencies to place children with same-sex couples, to force religious hospitals to perform transgender surgeries, to interfere with religious schools’ hiring and firing practices, and generally to eliminate religious exemptions from laws entirely. Who can forget the myriad efforts to hassle church groups and gatherings during COVID?
Our only defense against such intrusion and coercion is our constitutional right guaranteeing religious liberty. We should be practicing it when we can.
Whatever defense is used, what wedding vendors want is the right to live consistently according to their religious beliefs while embarking on their profession in the public square. How that is accomplished may be portentous to future religious liberty fights. To quote Rogers again: “To keep the Free Exercise Clause from becoming a secondary constitutional guarantee — or worse, a dead letter from a bygone era — free speech analysis should not control wedding-vendor cases.”