The Supreme Court will hear the recent conflict between beliefs and gay rights

LITTLETON, Colorado — Ten years ago, a Colorado baker named Jack Phillips turned down a gay couple who had asked him to make a wedding cake, saying a state law prohibiting discrimination based on sexual orientation had to give way to his faith.

The dispute, a red-hot flashpoint in the Kulturkampf, reached the Supreme Court. But Judge Anthony M. Kennedy’s narrow majority opinion In 2018, the question of whether the First Amendment permits discrimination against publicly accessible companies based on the religious beliefs of their owners was not resolved. Indeed, the expert opinion acknowledged that the court had merely kicked the can on the street and would have to decide “some future controversies involving similar facts”.

This controversy has now arrived and the facts are indeed similar. A graphic designer named Lorie Smith, who works just a few miles from Mr. Phillips’ Masterpiece Cakeshop, has challenged the same Colorado law for the same reasons.

“He’s an artist,” Ms Smith said of Mr Phillips. “I’m also an artist. We should not be penalized for creating in accordance with our beliefs.”

The basic arguments in the case, which will be brought before the Supreme Court on Monday, are as familiar as they are polarizing.

On one side are people who say the government shouldn’t force them to violate its principles to make a living. On the other hand are same-sex couples and others who say they are entitled to equal treatment from shops open to the public.

Both sides say the consequences of the court ruling could be huge, albeit for different reasons. Ms Smith’s supporters say a pro-state ruling would allow the government to force all types of artists to speak out against their beliefs. Opponents say a ruling in their favor would put a hole in anti-discrimination laws and allow companies that deal with expression to refuse to serve, say, black people or Muslims based on outrageous but genuine beliefs.

The court that will hear these arguments has changed since the 2018 decision. Following the resignation of Justice Kennedy later that year and the death of Justice Ruth Bader Ginsburg in 2020, the Supreme Court has swung to the right and is exceptionally receptive to demands for religious freedom.

When the Supreme Court Roe v. Wade in June was also filed by Judge Clarence Thomas a consensus of opinion calls for the abolition of the right to same-sex marriage. Supporters of gay rights fear that a ruling for Ms. Smith would undermine those rights and mark same-sex marriages as second-rate unions that do not deserve legal protection.

The court had an earlier opportunity to revisit the larger issues in the Masterpiece Cakeshop case, but dismissed appeals from a Washington state florist and the owner of an Oregon bakery, who said they should not be required to work for same-sex unions to accomplish.

The decision to hear Ms. Smith’s case was likely driven by several factors: an increasingly assertive Conservative supermajority of six judges, a sense that Ms. Smith’s drafts were more likely to be protected under the First Amendment, and the desire of at least some judge to reverse or limit Obergefell v. Hodgesthe 2015 decision establishing a right to same-sex marriage.

Ms. Smith, during an interview, sat in her humble but cheerful studio in an office building in suburban Denver, next to a plaque that read a Bible verse: “I am God’s masterpiece.” She said she was happy graphics and websites for everyone to create, including LGBTQ people. But her Christian faith, she said, doesn’t allow her to write messages celebrating same-sex marriages.

“When I decided to start my own business as an artist to create individual expressions,” she said, “I didn’t give up my First Amendment rights.”

Phil Weiser, Colorado’s Attorney General, countered that there is no constitutional right to discrimination. “Once you open your doors to the public, you must serve everyone,” he said. “You can’t reject people for who they are.”

The court ruled Masterpiece Cakeshop for an idiosyncratic reason not up for debate in the new case, 303 Creative v. Elenis, #21-476. Judge Kennedy, writing for the majority in 2018, said Mr Phillips was treated unfairly by members of a civil rights commission who made anti-religious comments.

Mr Phillips’ limited victory left it unclear whether he has a constitutional right to refuse to make custom cakes for LGBTQ people. Indeed, a Colorado Court of Appeals recently heard arguments in his appeal against a judgment against him in a case brought by a transgender woman.

Before the Supreme Court, Mr Phillips had made claims based on his rights to freedom of religion and speech. Ms Smith also asked the Supreme Court to consider those two grounds, but the justices agreed to only rule “whether the use of a public accommodations statute to compel an artist to speak or remain silent violated the violates the Free Speech Clause of the First Amendment.”

Both Mr. Phillips and Ms. Smith are represented by Alliance Defending Freedom, a conservative Christian law firm and advocacy group that has handled many cases for clients opposed to abortion, contraception, and gay and transgender rights.

Colorado Attorney General Weiser said there was an important difference between the Masterpiece Cakeshop case and the new case. Mr. Phillips refused to serve a real-life couple, David Mullins and Charlie Craig, who filed civil rights lawsuits saying they had been degraded and humiliated. The details of the encounter, he said, are important in assessing the legal issues.

In contrast, Ms Smith sued before facing punishment.

“This is a made-up case,” Mr. Weiser said. “There haven’t been any websites made for a wedding yet. Nobody was turned away. We are in a world of pure hypotheses.”

Ms Smith countered that she did not need to risk a fine for exercising her rights.

“If I continue to create for weddings in accordance with my beliefs, the state of Colorado intends to go after me fully,” she said. “Rather than wait for punishment, I decided to take a stand to protect my First Amendment rights. I should not have to be punished before challenging an unjust law.”

The two Colorado cases differ in another way, at least in the eyes of some legal scholars, in particular Dale Carpenter, a law professor at Southern Methodist University. In the Masterpiece Cakeshop case, Professor Carpenter filed a brief support of the gay couple along with Eugene Wolokh from the University of California, Los Angeles.

But in the new case They sided with Ms. Smith. Professor Carpenter did this, he explained in an interview, in part because he has dedicated his career to promoting gay rights.

“In my opinion, freedom of expression was essential to the cause of LGBT rights,” he said. “It could not have advanced without the freedoms guaranteed by the First Amendment. I assume these things go hand in hand.”

Mr. Phillips’ cakes don’t deserve First Amendment protection, Professor Carpenter added, but Ms. Smith’s graphics and website do.

“Cake making is not an inherently expressive medium, nor is it a traditionally expressive one,” said Professor Carpenter. “People bake cakes for taste or nutrition.”

Ms. Smith’s design work was different, he said. It included, he said, “activities that are inherently expressive, including through the usual means of communication such as writing or speaking.”

Kristen K. Waggoneran Alliance Defending Freedom attorney agreed that the two cases were different.

“It’s an easier case than Masterpiece,” she said. “Here we have pure speech.”

David D Cole, the legal director for the American Civil Liberties Union, who represented the couple at the Masterpiece Cakeshop, said that’s not the point. As long as Ms. Smith’s company is open to the public and sells a specific service, it must comply with state anti-discrimination laws, he said.

A ruling in favor of Ms Smith and her company 303 Creative would be devastating, Mr Cole said.

“If 303 Creative wins here, we’re going to live in a world where every business that has an expressive service put up a sign that says ‘Women Not Served, Jews Not Served, Black People Not Served’ and a First Amendment have a right to do so,” he said. “I don’t think any of us want to live in this world, and I don’t think the First Amendment requires us to live in this world.”

A split three-judge panel of the United States Circuit Court of Appeals for the 10th Circuit in Denver, ruled against Mrs Smith although it accepted most of their arguments.

“Creating wedding websites is pure speech”, Judge Mary Beck Briscoe wrote for the majority, and Colorado’s antidiscrimination law forces Ms. Smith and her company to “build custom websites that they would not otherwise build.”

That meant, Judge Briscoe wrote, that the antidiscrimination law had to survive the most demanding form of judicial scrutiny, which required the state to demonstrate an overriding interest and show that the law was closely tailored to accommodate that interest. Judge Briscoe said Colorado proved both.

“Colorado has a compelling interest in protecting both the dignified interests of members of marginalized groups and their material interests in accessing the commercial marketplace,” Justice Briscoe wrote.

in contradiction, Chief Justice Timothy M. Tymkovich said: “The majority takes the remarkable – and novel – stance that the government could force Ms. Smith to produce messages that offend her conscience.”

“It seems we’ve gone from ‘live and let live’ to ‘can’t tell,'” he wrote, moved.

https://www.nytimes.com/2022/12/04/us/politics/gay-rights-supreme-court-first-amendment.html The Supreme Court will hear the recent conflict between beliefs and gay rights

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