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Monday, the US Supreme Court heard a major religious liberty case from Colorado called 303 Creative v. Elenis. The issue to be decided is: Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.
The case is similar to the Masterpiece Cakeshop case, which was settled unsatisfactorily in 2018. In that case, Jack Phillips, the proprietor of Masterpiece Cakeshop, refused to make a wedding cake that was decorated with two grooms. While the case is often portrayed as Phillips refusing to provide service to a homosexual “couple,” all he really refused to do was the decoration that celebrated the cheap simulacrum of matrimony. That case was decided 7-2 but on very narrow grounds. The court found that the Colorado Civil Rights Commission was bigoted against Christians and deprived Phillips of due process. At the time, I pointed out how the victory on those grounds was more cause for alarm than cheering; see The Masterpiece Cakeshop Decision Is More of a Dire Warning Than a Cause for Celebration.
303 Creative LLC is a one-person web design and graphics shop. Lorie Smith is an observant Christian who believes that Christ was not making a joke when He established marriage as a divinely ordained union between precisely one man and one woman (see Matthew 19:4-6). She planned to expand to making wedding websites and wanted to post a message that she only did them for normal marriages. Unfortunately, that would run afoul of the Colorado Anti-Discrimination Act (CADA), which has “public accommodations” provisions that would cover her business. So she went to federal court to challenge the law.
The trial court granted summary judgment to the Colorado Civil Rights Commission. Smith appealed to the 10th Circuit and lost 2-1 (two Clinton judges vs. a G. W. Bush judge, but, as Chief Justice Roberts has assured us, it doesn’t make any difference who appoints the judge). She appealed to the US Supreme Court, which agreed to hear the case.
At that point, the sphincters of the whole Alphabet People advocacy mob snapped shut in a thunderclap of fear.
Let me take a short break from the narrative to make a point. The internet was ablaze today with leftist lawyers who were too weak to make it in law practice claiming that the Supreme Court should never have heard the case.
When lawyers call this Supreme Court lawless, this is what we mean. They’re hearing oral argument on a case seeking an advisory opinion… something we all agreed they couldn’t do in the 1790s. https://t.co/sqGa2NCclq
— Joe Patrice (@JosephPatrice) December 5, 2022
No list of stupid and bizarre comments on legal matters would be complete without the demented Yorkie of the leftist legal press, Slate’s Mark Joseph Stern, weighing in.
Today’s Supreme Court case, 303 Creative, asks whether a website designer, Lorie Smith, can refuse to sell her product to same-sex couples.
But no same-sex couple has tried to buy her product. ADF sued on her behalf before anyone asked, which gives it control over the narrative.
— Mark Joseph Stern (@mjs_DC) December 5, 2022
Note that none of them complained at the trial court or the appeals court. They are only now letting everyone know that they are smarter than all the justices, including the leftist ones, in discovering that the Supreme Court can’t actually hear the case.
The day opened with a New York Times op-ed by the ACLU’s national legal director, who concluded that making Smith design a website for an abhorrent practice was exactly what the First Amendment required; see In New York Times Op-Ed, the ACLU’s National Legal Director Is Just Wrong on the Latest Religious Liberty Case.
Today’s hearing did not go well for Colorado. My colleague Bonchie has the best exchanges, like Gorsuch saying Colorado had sent baker Jack Phillips to a “reeducation camp”; see Justice Gorsuch Leaves CO Solicitor General Stammering During Oral Arguments on Religious Liberty. Please give it a read for the flavor of the hearing.
From the New York Times story headlined Supreme Court Seems Ready to Back Web Designer Opposed to Same-Sex Marriage.
The Supreme Court’s conservative majority seemed prepared on Monday to rule that a graphic designer in Colorado has a First Amendment right to refuse to create websites celebrating same-sex weddings based on her Christian faith despite a state law that forbids discrimination based on sexual orientation.
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But several justices leaning in that direction appeared to be searching for limiting principles so as not to upend all sorts of anti-discrimination laws.
They explored the difference between businesses engaged in expression and ones simply selling goods; the difference between a client’s message and that of the designer; the difference between discrimination against gay couples and compelling the creation of messages supporting same-sex marriage; and the difference between discrimination based on race and that based on sexual orientation.
The bottom line, though, seemed to be that the court would not require the designer to create customized websites celebrating same-sex marriage despite the state anti-discrimination law.
From the Washington Post story titled Supreme Court seems to side with web designer opposed to same-sex marriage.
The Supreme Court’s conservative majority seemed sympathetic Monday to an evangelical Christian graphic artist from Colorado who does not want to create wedding websites for same-sex couples, despite the state’s protective anti-discrimination law.
Those justices seemed amenable to businesswoman Lorie Smith’s argument that the state may not compel her to create speech that violates her religious belief that marriage is only between a man and a woman. But several appeared to be looking for ways to narrow their decision, saying both sides in the dispute agreed, for example, that not all wedding vendors should receive such exemptions.
Justice Samuel A. Alito Jr. said during oral arguments that a win for Colorado would mean some businesses that provide custom speech for customers could be forced to “espouse things they loathe.”
The first time around, the Supreme Court punted on the issue. In Fulton vs. City of Philadelphia, it got closer to making a stand; see Supremes Upholds Religious Freedom 9-0 — Catholic Agency May Exclude Same-Sex Couples for Adoptions. In Kennedy vs. Bremerton School District, the court came down hard in favor of religious freedom (BREAKING: Supreme Court Rules School District Cannot Discipline Coach for Prayer on the Field).
To be sure, there were some stupid arguments. For example, Sonia “the wide Latina” Sotomayor tried to equate homosexual pairings with interracial marriage giving us a foreshadowing of what will happen when the grotesquely named “Respect for Marriage Act” is signed into law, see The ‘Respect for Marriage Act’ Is a Direct Assault on Religious Liberty That Will Probably Succeed).
Justice Kagan compared designing a wedding website for a homosexual coupling with selling paper.
Meanwhile Supreme Court argument on Colorado same sex marriage / religious freedom case, Justice Elena Kagan says if website designer can pick and choose, why not the stationary provider for invitations? Arguments continue: https://t.co/pjUwAotkRM pic.twitter.com/uHo6gkeWZd
— Inner City Press (@innercitypress) December 5, 2022
I’d agree that a graphic designer could not be compelled to create a wedding announcement but stretching that to providing the paper is a lot like saying the electric utility could refuse to provide electrons to run a computer.
Let’s be clear. Laws like the one that Colorado has used to harass Jack Phillips and that Washington has employed against a wedding photographer and florist are not designed to protect anyone from discrimination. They are intended solely to bully people of faith who refuse to acknowledge the fiction that men can marry men and women marry women and will not go along with a man or woman deciding they are not what they are. One should no more expect a Christian, Jew, or Muslim to engage in commerce that promotes homosexual marriage — like baking a cake or making a website, or forcing a religious organization to rent space for a homosexual “wedding” reception — than one would expect a Jewish baker to create a cake with anti-Semitic verses or imagery. “Public accommodation” can’t be stretched enough to allow someone to demand that you make something advocating views or actions that are abhorrent.
