U.S. Supreme Court denies petition by former Secretary of State Scott Gessler (copy)

The U. S. Supreme Court building before dawn in Washington.

Religious freedom scholars and anti-discrimination attorneys are assessing the likelihood that the conservative majority on the U.S. Supreme Court may take up a major First Amendment decision out of Colorado, in which the state’s anti-discrimination law prevailed over a business owner’s religiously based objection about serving same-sex couples.

“I believe that this case, or one similar to it, is likely to end up before the Supreme Court at some point in the future, but the Court doesn’t seem anxious to rule on these types of cases anytime soon,” said Iris Halpern, a civil rights attorney and LGBTQ-rights advocate with Rathod Mohamedbhai LLC in Denver.

On Monday, the federal appeals court based in Denver decided the Colorado Anti-Discrimination Act compelled website and graphic designer Lorie Smith to make wedding websites for same-sex couples if she decided to make them for opposite-sex couples. Smith, a Christian, asserted she had the right to advise potential clients she could only promote marriages between one man and one woman.

But a three-judge appellate panel, in a 2-1 ruling, concluded the state’s interest in preventing discrimination justified the intrusion on her right to exercise her religious beliefs.

“I think what both sides would agree on is: this is a big deal,” said Julian G.G. Wolfson with HKM Employment Attorneys.

For religious freedom advocates, Smith’s case, 303 Creative LLC v. Elenis, represented whether the government could force someone to create or publish messages that violated their conscience — in effect, adopting the government’s viewpoint. To those who defend LGBTQ protections and the separation of church and state, the Colorado Anti-Discrimination Act seeks to ensure that exclusionary religious views do not imperil the civil rights of marginalized populations in places of public accommodation.

The latter group points to examples of religion being used historically as a legal justification for discrimination. In the landmark Supreme Court case of Loving v. Virginia, which struck down state laws barring interracial marriage, the trial court judge who initially upheld the sentences of Richard and Mildred Loving for violating Virginia’s anti-miscegenation statute wrote that “Almighty God created the races white, black, yellow, malay, and red, and he placed them on separate continents….The fact that he separated the races shows that he did not intend for the races to mix.”

However, Smith stressed on appeal that she was not advocating for her right to discriminate against the customers themselves, but to choose not to convey a particular message. Forcing her to design a same-sex wedding website would be akin, she argued, to requiring a Jewish public relations specialist to "craft anti-Israel propaganda."

John F. Banzhaf III, a professor of public interest law at the George Washington University School of Law, believes there can be an interpretation of anti-discrimination laws that better protects religious freedom by focusing on the protected characteristics of the customer, and not the message of the business's product.

"While some have seen such cases as an all-or-nothing clash between the rights of people not to be forced to participate in activities to which they are opposed because of strong religious beliefs verses the rights of people not to be discriminated against based upon characteristics such as sexual (orientation) or sexual identity, there is an easy way to balance these apparently competing interests," he said.

Smith's attorneys have already indicated they will appeal. The case has many similarities to another recent Supreme Court decision from Colorado involving Lakewood baker Jack Phillips, who refused to create a cake for a same-sex wedding. The Supreme Court sided with the baker, albeit on grounds specific to his case.

But more recently, the Court this month declined to hear an appeal from a Christian florist in Washington who believed she could not make flower arrangements for a same-sex couple, in contravention of that state's own anti-discrimination law. Although three conservative members of the Court — Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch — said they would have accepted the case, it takes four justices to do so.

The Alliance Defending Freedom, which the Southern Poverty Law Center has labeled a hate group for its anti-LGBTQ activism, represented the florist in the case, as well as Smith, Phillips and a wedding photographer in Virginia who raised similar First Amendment claims.

Throughout his 52-page dissenting opinion in Smith's appeal, Chief Judge Timothy M. Tymkovich of the U.S. Court of Appeals for the 10th Circuit laid out an extensive case for Smith's right to the free exercise of her religious beliefs.

"It seems we have moved from 'live and let live' to 'you can’t say that.' While everyone supports robust and vigorously enforced anti-discrimination laws," Tymkovich wrote, "what Colorado cannot do is turn the tables on Ms. Smith and single out her speech and religious beliefs for discriminatory treatment under the aegis of anti-discrimination laws."

Wolfson said there "is no doubt" Tymkovich wrote his dissent with an eye toward the nation's highest court.

"It's a signal both to the parties, that, 'hey, losing party, this should be your argument. I just made it for you.' I think he's saying it both to the litigants as well as to the Court," Wolfson said. "It gives the conservative members something to hang onto."

Still, as consequential as the case might be, the Supreme Court "may be burned out on free exercise for awhile," said Douglas Laycock, a scholar of religious liberty and law professor at the University of Virginia.

"These anti-discrimination laws are important and address historic wrongs. But applying them to force conscientious objectors out of the wedding business is a greater wrong. She must permanently surrender either her conscience or any opportunities in the wedding business," he added, referring to Smith. "Any same-sex couple that she refers elsewhere has a one-time incident. They may feel insulted or offended, but they still have each other, their jobs and their careers....Both the conservative religious believers and the gay rights movement are far too intolerant of the other side."

Wolfson rejected the notion that there could be a just compromise between allowing religious adherents to discriminate and guarding minority populations from discrimination.

"These exceptions will ultimately eat up the rule," he said.


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