The U.S. Supreme Court on Monday will hear arguments in yet another Colorado case of a right wing Christian business owner who claims their work is artistic expression which entitles them to discriminate against LGBTQ people who want to use their product for a same-sex marriage. And once again conservatives on the nation’s highest court are being asked to, and could move towards striking down another decades-old ruling in favor of the far Christian right.
This time the case involves not a Colorado baker refusing to bake cakes for same-sex weddings, but a Colorado web designer refusing to make web sites for same-sex weddings. Both have cited their deeply held religious beliefs against marriage equality, only this time the web designer is suing not because she refused a same-sex couple – indeed, no same-sex couple has ever asked her to create a website for their wedding – but because she’s afraid someday one will.
Lorie Smith, who owns 303 Creative, objects to Colorado law that bans discrimination based on sexual orientation, and objects to the law banning notices or statements that a business intends to do so.
And just like the Colorado baker or the Washington florist, Smith insists she’s not anti-gay, just anti-same-sex marriage.
“If a client who identifies as gay asked her to design graphics for his animal rescue shelter or to promote an organization serving children with disabilities, Smith would happily do so,” Ms. Smith’s lawyers told the justices in a brief, The New York Times reports. “But Smith will decline any request — no matter who makes it — to create content that contradicts the truths of the Bible, demeans or disparages someone, promotes atheism or gambling, endorses the taking of unborn life, incites violence, or promotes a concept of marriage that is not solely the union of one man and one woman.”
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Despite all the other issues listed, however, marriage equality is the apparent basis for the case being brought to the Court.
Indeed, a unique aspect of the case is that unlike the Colorado baker or the Washington florist, no one has ever asked Smith to make a product that violates her beliefs, so it’s unclear why the Court even accepted the case. (The Court refused to rule on the Washington florist case, and issued only a very narrow ruling in the Colorado baker case, one that the Trump White House incorrectly used to enact discriminatory policy in agencies including HHS.)
Philip J. Weiser, Colorado’s attorney general, is defending his state’s law.
“A business could, based on its claimed beliefs, refuse to bake for Catholic baptisms because it is pro-choice, photograph reunions of Black families because it opposes racial equality or create floral arrangements for events celebrating women’s business achievements because it believes only men should work outside the home,” Weiser wrote in a Court brief.
Supporters of civil rights and LGBTQ equality are concerned the activist wing of the Court, especially Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh, could use this case to overturn a 1990 ruling, Employment Division v. Smith.
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Indeed, Smith’s attorneys have specifically asked to Court to do so, although the Court is not expected to.
“In that case,” The Times explains, “the Supreme Court ruled that laws that are neutral and apply generally could not be challenged on the ground that they violated the First Amendment’s protection of the free exercise of religion.”
But the current Trump-infused Roberts Court has made clear it sees conservative Christian faith at the center of American jurisprudence, and want that 33-year old ruling overturned.
Indeed, as Vox reported last week, the Supreme Court “appears eager to give religious conservatives sweeping exemptions from the law.”
“Although 303 Creative no longer presents the question of when the Constitution permits people with religious objections to an anti-discrimination law to defy that law, the Court has been signaling for quite some time that it is very sympathetic to such objectors — and that it is likely to abandon a more than 30-year-old precedent establishing that the law generally applies equally to everyone.”
Vox accurately describes this as a case involving “religious conservatives,” and not just people of faith. There are many Christians who support the LGBTQ community, same-sex marriage, and equal civil rights.
The decision in Employment Division v. Smith, “arising from a case involving the use of peyote in Native American religious ceremonies, is unpopular among conservative Christians, who say it does not offer adequate protection to religion, and with some of the justices. Last year, the court’s three most conservative members — Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch — said it was time to overrule the 1990 decision.”
Already the LGBTQ community, its supporters, and advocates for equal civil rights are on edge after the Court struck down its 49-year old Roe v. Wade ruling, with Justice Thomas actively and openly calling for cases that would overturn decisions that made access to contraception, same-sex intimacy, and same-sex marriage the laws of the land.
Oral arguments in the case, 303 Creative LLC v. Elenis, start at 10 AM ET.
You can listen live at the Supreme Court’s website, or via C-SPAN.