9 to Rule on Religious Freedom in Masterpiece Redux

The Supreme Court will hear the next chapter in a long-running conflict between freedom of speech and protection from discrimination, the high court announced on Tuesday. In electing to take up a case that follows on the heels of its 2018 decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court has signaled an appetite to intervene once again in one of the most contentious fronts of the culture wars.That earlier decision concerned a clash between free speech and free exercise of religion — both guaranteed in the Constitution’s First Amendment — and nondiscrimination, codified in Colorado’s Anti-Discrimination Act, known as CADA. A Colorado baker refused to make a cake for a wedding between two men on religious grounds; the men in turn appealed to Centennial State courts to enforce CADA. While the Supreme Court eventually overturned lower court decisions that held that the cakeshop had in fact discriminated against the couple, it did so on very narrow grounds, ruling that Colorado’s administrative process for adjudicating the discrimination claim was infected with anti-religion animus. Left unanswered was the ultimate question of how to weigh a proprietor’s conscience against a customer’s entitlement to be served in a fashion free of discrimination. Four years later, that is an inquiry whose time appears to have come.The case that will be heard in the fall, 303 Creative LLC v. Elenis, centers on a Colorado web designer named Lorie Smith who seeks to provide wedding-related services exclusively to heterosexual couples. Ms. Smith proactively asks to be allowed to refrain from providing such services to gay couples and to post a notice on her website explaining that such abstention is due to her religious beliefs. Ms. Smith’s case comes to the Supreme Court having suffered setbacks at both the district and appellate levels, with the riders of the Tenth Circuit holding in a 2-1 decision that “Colorado has a compelling interest in protecting both the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace.”In a stinging dissent, the chief circuit judge, Timothy Tymkovich, wrote that it was “remarkable” that “the government may force [an artist] to produce messages that violate her conscience.” He notes that “we have moved from ‘live and let live’ to ‘you can’t say that.’” The outcome of that decision was that Ms. Smith would be forced to provide her website’s services to both gay and straight couples despite her commitment “to promote God’s design for marriage in a compelling way.” In addition to compelling Ms. Smith to serve all comers, CADA would prohibit Ms. Smith from adding a note to her website explaining why she chooses not to do so, viewing that as discriminatory as well. While the circuit court was circumscribed in reviewing the district court’s dismissal of Ms. Smith’s case, the high court will be free to ask and answer the underlying question involved: “whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.”Unusually, this case arrives at the Supreme Court prior to the law in question being enforced, as Ms. Smith has not yet been enjoined to cater to a gay couple. Colorado’s attorney general has argued that this means that “the record contains no evidence” of harm to Ms. Smith.However, Ms. Smith’s attorneys maintain that CADA’s structures have preemptively muzzled her twin freedoms of religion and speech. As her lawyers point out, when the Supreme Court found gay marriage to be constitutionally protected in Obergefell v. Hodges it also held that those opposed to it “may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.” Since Masterpiece was decided, Justices Brett Kavanaugh and Amy Coney Barrett have joined the court. Justice Anthony Kennedy, who crafted the decision in Masterpiece, is no longer on the bench. It remains to be seen whether this version of the court will finally rule on whether CADA and similar laws nationwide pass constitutional muster.

9 to Rule on Religious Freedom in Masterpiece Redux

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