While the Supreme Court will take up hot-button cases regarding abortion, affirmative action, and gun rights in its upcoming term, conspicuous by its absence is another area desperately needing judicial clarity: religious liberty.
Of the dozens of cases slated to be heard by the high court beginning next month, none have to do with the preeminent clash of rights of our time: the right not to be discriminated against versus the right to live out one’s life according to one’s religious beliefs.
The Court is taking up a case from Maine that involves rules governing the state’s tuition assistance program. Some religious schools in the state have been denied funds that public schools receive because the state is worried about funding religious activities. But no cases coming before the black robes will involve gay teachers suing religious schools for letting them go, companies being forced to include abortifacients in their health plans, or, regrettably, religious wedding service providers being required to violate their religious beliefs in order to continue their professions.
This latter is a clash that has been exacerbated since 2015, when the Court decided same-sex couples had the right to marry. These battles have pitted same-sex couples wishing to celebrate their weddings against the florists, bakers, photographers, website designers, and wedding planners that service nuptials.
Lower courts have ruled every which way on such cases. On the religious liberty side, a Minnesota company that created films celebrating traditional marriages was not required to do the same for same-sex marriages. And an Arizona enterprise that fashioned custom wedding invitations could continue to refuse to take orders from same-sex couples. Both turned down business that violated their conscience and lived to work another day.
But in New Mexico and Washington state, the government’s appeal to public-accommodation laws claimed victory. A New Mexico photographer has to shoot gay weddings or abandon wedding work altogether. A Washington florist is facing a similar dilemma, not to mention personal financial ruin, because she wouldn’t abandon her religious beliefs to service a gay wedding.
Many conservatives saw Barronelle Stutzman’s case as the perfect vehicle for a decisive, and clarifying, high-court ruling on religious liberty. She had provided long-term gay customer Rob Ingersoll with floral arrangements for special occasions, like Valentine’s Day and anniversaries, for a decade before she kindly informed him in 2013 that servicing his same-sex wedding would violate her religious belief that true marriage consists of one man and one woman. The state of Washington and Ingersoll represented by the ACLU sued and won victory at the state supreme court. Stutzman lost the lucrative wedding market — the source for much income for florists — and may lose her personal fortune in attorney fees to the ACLU.
In July, the Supreme Court denied certiorari, as only three justices of the needed four could be mustered to agree to hear the Arlene’s Flowers case.
What does this mean? Since the arrival on the high bench of Amy Coney Barrett, conservatives have hoped their 6-3 majority would overturn Smith v. Employment Division, 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. Prior to Smith, the government could not place a burden on the free exercise of religion unless it could show a compelling interest, and any burden it imposed had to be done “in the least restrictive means possible.” The Smith decision, written ironically by Justice Antonin Scalia, held that in “laws of general applicability,” that is, laws that apply equally to everybody, the government need not show a compelling interest at all but only that religious behavior wasn’t specifically targeted by the law (which it, incidentally, never is).
While six of the nine justices have at some recent point lamented the inadequacy of Smith, the Court has deigned not to frontally address the three-decades-old decision, despite numerous opportunities. Thus the religious liberty waters have remained roiled, with aggressive, predatory civil libertarians continuing to persecute Christian artists unwilling to practice their craft in a way that repudiates their religious beliefs.
The Court has ruled, famously, for the religious rights of a Colorado baker, but it ruled in the narrowest way possible that Jack Phillips did not have to violate his conscience to craft a cake celebrating a gay marriage. The Court did not offer broader guidance, however, and Phillips almost immediately found himself sued all over again for a similar “transgression” — he refused to bake a gender-transition cake.
Is the Court waiting for a case more amenable to settling once and for all the religious liberty arena? A case it considers more suitable to overturning Smith v. Employment Division? Or — the scary question — is the Court waiting to see what the public thinks about the issue before it decides what the law says? The narrow decisions in the Masterpiece Cakeshop case (Phillips) and Fulton v. City of Philadelphia, an equally high-profile religious liberty case decided in July; the political element that seems to be infused into deliberations by Chief Justice Roberts; and the Court’s unwillingness to take up and rule broadly on obvious challenges to religious liberty have some conservatives worried that what seemed like a slam-dunk victory for the rights of believers may not be a fait accompli.
One case many think the high court cannot ignore is 303 Creative v. Elenis. In a decision that one legal expert called “bonkers” in late July, the Tenth Circuit ruled that the state of Colorado could force a custom wedding website designer who believes same-sex marriage is wrong to fashion custom websites to celebrate gay weddings if she wants to make them for traditional weddings.
The “logic” behind the circuit court’s decision is elusive. Here’s Judge Mary Beck Briscoe, who wrote the majority opinion, laying it out in part:
To be sure, LGBT consumers may be able to obtain wedding-website design services from other businesses; yet, LGBT consumers will never be able to obtain wedding-related services of the same quality and nature as those that Appellants offer. Thus, there are no less intrusive means of providing equal access to those types of services.
In other words, there will be many website-design entities for LGBT consumers to patronize, but Lorie Smith’s company, 303 Creative, will somehow be providing a service that is unique, and thus discriminates against gay customers by not allowing them to procure its services.
But the crucial aspect is this: the decision directly concerns the bedrock element of the First Amendment, free speech. The Tenth Circuit is telling Lorie Smith that she has to say something in her custom websites that she doesn’t want to say and to approve of ideas she fundamentally opposes in order to do business.
John Bursch of the Alliance Defending Freedom, the group that defended Phillips and Stutzman and that on Friday appealed the 303 Creative case to the Supreme Court, said: “The government should never force creative professionals to promote a message or cause with which they disagree. That is quintessential free speech and artistic freedom.”
In his dissent to the 2–1 ruling, Tenth Circuit Chief Judge Timothy Tymkovich wrote, “Taken to its logical end, the government could regulate the messages communicated by all artists, forcing them to promote messages approved by the government in the name of ‘ensuring access to the commercial marketplace.’”
Some say this violation of free speech and the free exercise of religion is so egregious that the Supreme Court cannot not take up this case. Let’s hope they’re right.