What will the Supreme Court say about free speech and gay rights?
Legal experts predict that the justices will rule in favor of a web designer that does not want to create custom websites for same-sex weddings
This article was first published in the State of Faith newsletter. Sign up to receive the newsletter in your inbox each Monday night.
This time last week, I was holed up in our guest room listening to a Supreme Court hearing while trying to keep my two grumpy dogs from noticing there were workmen in the house. It wasn’t an ideal office environment, but I did my best to provide helpful coverage of the justices’ discussion of wedding websites, free speech and nondiscrimination law.
What I failed to do, in part because my dogs were horrible roommates, is to draw conclusions from oral arguments about how the court might eventually rule. Although I don’t think of it as my job to predict the future, I do usually try to add commentary from legal experts to my Supreme Court coverage.
I want to make up for missing that final step of last week’s story in this newsletter and highlight some experts’ thoughts on how the 303 Creative case might turn out. But first, let me refresh your memory about the legal battle, which comes to the Supreme Court from Colorado.
Lorie Smith, a web designer who owns the business 303 Creative, is challenging the state’s nondiscrimination law out of concern that it will force her to design custom wedding websites for same-sex couples. She argues that such forced behavior represents compelled speech and violates the free speech clause of the First Amendment. Colorado officials are defending the nondiscrimination law and highlighting the importance of ensuring that LGBTQ people will not be turned away from public-facing businesses because of their sexual orientation.
At oral arguments, the Supreme Court weighed these claims and others, considering whether it’s possible to rule for Smith without weakening civil rights laws nationwide. The legal experts I spoke to or read commentary from generally agree that Smith will win the case. The key question is how she will win.
“As I see it (or, as I heard it), many of the justices were asking the advocates to help them identify lines and limits. It is unlikely that any of the justices believes that public-accommodations laws never implicate First Amendment rights and also unlikely that any of them believes that they always do. What, then, is the principle, factor, or consideration that judges and regulators can use to distinguish between impermissible and permissible uses of such laws?” wrote Rick Garnett, a law professor at the University of Notre Dame, to me in an email.
Garnett and others believe the justices in the majority will spent the next several months defining those “lines and limits” so that the ultimate ruling can protect Smith without causing legal chaos across the country.
“Conservative justices seemed inclined to back Smith, but it remained uncertain how they would buttress such a decision against inevitable claims that it will lead to other businesspeople trying to use free speech or religious beliefs to opt out of providing services based on race, religion or other criteria protected by anti-discrimination laws,” Politico reported.
Politico was not alone in predicting an eventual ruling that pitted conservative justices against their liberal colleagues. Amy Howe at SCOTUSblog drew a similar conclusion in her analysis of last weeks’ hearing.
“At the oral argument, Justice Sonia Sotomayor asserted that a ruling for Smith would be the first time that the Supreme Court had ruled that ‘commercial businesses could refuse to serve a customer based on race, sex, religion, or sexual orientation.’ But Chief Justice John Roberts countered that the Supreme Court has never approved efforts to compel speech that is contrary to the speaker’s belief, and his five conservative colleagues signaled that they were likely to join him in a ruling for Smith,” she wrote.
Fresh off the press
Term of the week: Nonreligious recovery bill
As religious disaffiliation becomes more common in the U.S., so too are efforts to provide secular alternatives to faith-based resources. That helps explain why New York legislators recently passed a bill that would ensure access to secular addiction recovery resources for people in the state’s criminal justice system.
If New York Gov. Kathy Hochul signs the nonreligious recovery bill, courts would have to notify defendants of their right to access a secular program as they fulfill court-ordered addiction recovery programming and connect them with additional resources if they raise faith-related objections to a program they’ve been assigned to.
What I’m reading ...
American Jews are experiencing a range of emotions after recent antisemitic incidents involving celebrities like Kyrie Irving and Ye, previously known as Kanye West. They’re anxious about what the future will hold, proud of their communities and angry that old issues keep reemerging. “When I began my career, I thought antisemitism was an issue in my father’s generation — it won’t be in mine,” said Rabbi David Wolpe to The Associated Press. “I was sadly and unforgivingly wrong.”
President Joe Biden’s push for Congress to pass the Respect for Marriage Act represents the latest in a long list of battles between the Catholic president and Catholic bishops, according to The Hill. The U.S. Conference of Catholic Bishops has said that the bill, which passed the House Thursday and is now on Biden’s desk, does not do enough to protect religious organizations that oppose same-sex marriage.
Odds and ends
I appeared on KSL Radio last week to discuss my story on Gen Z and religious freedom. A recording of the segment is available online.
Ever wondered what it’s like to keep kosher at the World Cup? The Associated Press looked into it for us.