And then there is religion and the case from the web designer who sought the right to refuse to design websites for same-sex couples celebrating marriage. I was confused when the court agreed to hear the designer’s appeal in February of last year, and not just because the designer, Lorie Smith, hadn’t yet designed a wedding website for a paying client and hadn’t turned anyone away — indications that the case wasn’t ripe for review.
Her lawyers at Alliance Defending Freedom, a hard-right Christian litigation group, asked the court to decide whether Colorado’s law prohibiting businesses from discriminating against LGBTQ people violated either Ms. Smith’s right to freedom of religion or to free speech. The court agreed to hear only the oral question. I did not see how the two questions could be disentangled, since Ms. Smith sought the right to post a statement on her web page explaining that it was for religious reasons that she could not create a website for same-sex marriage. . In other words, it was religion that inextricably fueled her desire for freedom.
The majority of Judge Gorsuch opinion, in fact, sought to embed the religious essence of the case so deeply in the discussion of free speech that even a well-informed reader may not realize what the decision accomplished: The court created a religious dispensation from compliance with laws. who dominate the commercial marketplace. He found a violation of the First Amendment in the fact that if Ms. Smith entered the wedding website design business, Colorado’s anti-discrimination law would require her to take all clients. His opinion cites numerous First Amendment precedents, including the right not to salute the flag, the right of private parade organizers not to include a homosexual organization among the marchers and the right of the Boy Scouts not to retain a homosexual scout.
But none of those precedents are relevant, because none involved discrimination by a business entity. Just on the first page of Justice Sonia Sotomayor’s dissenting opinion, joined by Justices Elena Kagan and Ketanji Brown Jackson, a reader will clearly understand what just happened: “Today, the court, for the first time in its history, gives a business open to the public a constitutional right refuse to serve members of a protected class.”
A full understanding of this case, 303 Creative LLC v. Elenis, requires context. It is now eight years since the court, in Obergefell v. Hodges, recognized a constitutional right to same-sex marriage. Of the six members in the majority in 303 Creative, three were on the court for Obergefell, and all three – Chief Justice Roberts and Justices Thomas and Samuel Alito – were dissenters. Justice Alito’s dissent, which Justice Thomas joined, was bitter. The decision would be “used to slander Americans who do not want to agree to the new orthodoxy,” he warned. Since then, those two justices have been searching for an Obergefell victim whose plight would justify their expressed concern. It was not easy, but in the end, despite the obvious procedural defects of the appeal, in 303 Krea they found one.