One of the most important cases the Supreme Court has decided to hear recently is 303 Creative LLC v. Elenis. He pits the rights of a religious website designer against those of a same-sex couple who want to hire him to design a website for their wedding. Unlike similar cases recently decided by the Court – the gay wedding cake case and the religious adoption agency case – the Court has made it clear that it will not decide this case on the basis of the free exercise of religion. The Court only agreed to decide the freedom of expression issues presented.
This means that the outcome here will have great significance for what are described as the “culture wars” today. The Court showed great reluctance to affirm that religious people have special constitutional rights. In the case of the religious baker, Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Court ruled in favor of the baker on the ultra-narrow ground that members of the state Civil Rights Commission had spoken to him in a way that disparaged his religious beliefs. In another case, the Court ruled in favor of Catholic Social Services’ right not to place children with same-sex adoptive parents on grounds just as narrow as Philadelphia law allowed the city to grant exemptions. to its policy of non-discrimination.
But while the Supreme Court has walked with extreme caution in the area of religion, it has been much bolder in the area of free speech. For example, it granted broad First Amendment protection for donating money to political causes. And, important to this case, he also aggressively protected First Amendment rights from having to say something you don’t mean. For example, he recently ruled that mandatory union dues violate the First Amendment because they are forced political speech.
Therefore, the fact that the Supreme Court decided to hear only free speech issues, and not religious freedom issues, is a sign that the Court is considering a more drastic decision in the 303 Creative Designs vs. Elenis case that would protect the right of people to express their disagreement with progressive views on gender and sexuality. 303 Creative Designs is a graphic design company owned by Lorie Smith, a devout Christian who believes she was called by God to design websites that celebrate traditional marriage, but not same-sex marriage. Like the religious baker, she does not see herself as discriminating against same-sex couples. She maintains that she happily serves same-sex couples who wish to celebrate birthdays, retirements, etc. The federal courts, however, rejected that argument and ruled that his behavior was discriminatory and therefore violated Colorado’s anti-discrimination law. It’s probably true. After all, if someone refused to provide services at interracial marriages, it’s pretty clear that it would be racial discrimination.
So this case is going to come down to the designer’s argument that the state is forcing her to perform same-sex marriage against her will, in violation of her First Amendment rights. This line of argument means that this case has more in common with a case called Meriwether v. Hartop. This case involved a public university professor who was disciplined for refusing to address a student by the student’s preferred pronouns. The Sixth Circuit Court of Appeals (the federal court just below the Supreme Court of the state where the university is located) ruled that the university violated the professor’s right not to be forced to speak.
Therefore, many factors point to a more sweeping First Amendment ruling in the Elenis case than in same-sex wedding cake and same-sex adoption cases. As noted, the Court only hears free speech issues, where it has generally been more aggressive than it is with religion-based exemptions. The case has implications for a wider range of issues, such as the forced use of gender pronouns by officials. Finally, the Court has a conservative majority of 6 to 3, a fact that will not be changed by the probable confirmation of Judge Ketanji Brown Jackson.
The Court may not hear this case until the start of the next term. This is also when they will hear a case in which they are likely to significantly limit affirmative action in universities. Regardless of his political leanings, it’s going to be a fascinating year on the Supreme Court.