This is one of the most frightening times to be a queer or trans kid in recent history. Trans kids in Texas have every reason to fear that the police will show up and remove them from their homes if their parents have been supportive of their gender identity. High school students across Florida staged a massive walkout to protest a new law that would make it illegal to even say the word “gay” in primary schools, and the gay student who organized the protest was suspended from school indefinitely. And 11 states have enacted laws prohibiting trans student athletes from competing in school sports.
The all-out assault on the lives, dignity, and safety of queer and trans kids is so out of control that President Joe Biden felt moved to address young people directly in his State of the Union message last week. “The onslaught of state laws targeting transgender Americans and their families is wrong,” said Biden. “I will always have your back as your president, so you can be yourself and reach your God-given potential.” (Not sure the “God” part was necessary, but I suppose he meant well.)
At the same time that the bashing of queer and trans kids has reached a fever pitch, the Supreme Court decided to take yet another case that pits the equality rights of LGBTQ people against the religious liberty rights of people who claim faith-based justifications for denying those equality rights. Once again, the Supreme Court showed the completely divorced-from-reality bubble in which it seems to reside.
Having ruled last June in favor of Catholic Social Services’ right to discriminate against lesbian and gay adults who want to serve as foster parents, you’d think that the court might take a break from radically expanding constitutional protections for the religious right at the expense of the LGBTQ community. But you’d be wrong. In the last several years, the Supreme Court has given religious objectors to LGBTQ rights so many bites at the constitutional apple that we have now reached the very core of the Constitution itself. That is to say, the trend these cases are moving in risks radically transforming the US Constitution from a statement of principles premised upon the separation of church and state into a mandate to protect the values of religious believers over secular values such as equality, security, or dignity.
In this new case, 303 Creative v. Elenis, Lorie Smith, the owner of a website design company in Colorado, wants to expand her business to include wedding websites, but only for different-sex weddings. Designing wedding websites for same-sex couples, Smith argues, would “compromise my Christian witness and tell a story about marriage that contradicts God’s true story of marriage—the very story He is calling me to promote.” She would also like to post a notice on her business’s website explaining why she cannot design websites that promote or celebrate ideas or messages that violate her religious beliefs. Unfortunately for her, both actions violate Colorado’s law prohibiting sexual orientation discrimination by businesses that are otherwise open to the public.
This case tees up some of the same issues that were presented to the court four years ago in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case in which Jack Phillips, a baker, refused to make a wedding cake for a same-sex couple because Phillips believed that God intended marriage to be a sacrament between one man and one woman. The Supreme Court ruled in favor of Phillips—a decision with which many legal experts, myself included, disagree—based on the contestable finding that a member of the Colorado Civil Rights Commission had expressed hostile views toward religious objectors to same-sex marriage.
But the 303 Creative case takes the issue steps further, by pressing arguments that the court at the time declined to address, namely: Does designing a wedding website amount to a kind of artistic expression that should be protected by the First Amendment’s Free Speech clause, just like the work an author does in writing a novel? When you design a wedding website, are you necessarily expressing approval and celebration of the couple’s marriage? If the answer to these questions is yes, then Smith’s lawyers argue that the Colorado law compels her to express a view of marriage contrary to her sincerely held religious beliefs. In addition, does barring her from posting a notice on her website explaining why she will not provide design services for same-sex weddings amount to a form of censorship that also violates the First Amendment’s free speech protections? If the court ends up finding that it does, what’s next? Elevating free speech rights over rights to equality could place laws regulating hate speech, workplace sexual and racial harassment, and racist incitement to violence on the chopping block.
The significance of this case cannot be overstated. It represents the next salvo in a putsch orchestrated by conservative religious liberty advocates to convince the Supreme Court to find, or invent, expansive constitutional protections for religious liberty. This campaign took on a head of steam after the court recognized that same-sex couples had a constitutional right to marry in 2017, but its roots lie in the religious backlash against threats by the Internal Revenue Service to revoke the tax-exempt status of a Christian college for practicing racial discrimination.
Just as last June’s Fulton v. Philadelphia decision recognized a new equality right in the First Amendment’s Free Exercise clause, the 303 Creative case asks the court to find/invent/discover a way to protect faith-based objections to laws one finds objectionable through the First Amendment’s Free Speech clause. Advocates have been pushing this new way of protecting religious objectors to gay rights because speech is afforded a higher level of constitutional protection than is religious exercise.
This case is also important for the role it could play in undermining the reach and power of antidiscrimination laws, not only for LGBTQ people, but for all communities that have struggled hard to gain protections promising equality in employment, housing, and public accommodations. If Lorie Smith can get a faith-based pass on abiding by the state’s antidiscrimination laws, what’s the limit of such a principle? A landlord refusing to rent to an interracial couple because his faith instructs that this is sinful? A restaurant refusing to serve Jews because, after all, they killed Christ?
We documented in a recent report that there is almost no limit to the contexts in which religious objectors will try to avoid laws that apply to everyone else, including laws regulating child abuse, workplace sexual harassment, union organizing, equal pay and minimum wages, and public health. Not to mention the fact that LGBTQ people are already at an increased risk of experiencing discrimination in their daily lives, to say nothing of the disproportionate toll the pandemic has taken on the community.
At a time when the Supreme Court is quite comfortable shrinking reproductive rights and rights to racial equality, it remains receptive to increasingly radical formulations of religious liberty. In each new case the court further undercuts the power of states and local governments to enact and enforce laws designed to protect secular values of citizenship and belonging.
There was a time not so long ago when the Supreme Court went years without hearing a religious liberty case. This court’s receptiveness to any claim likely to expand the rights of religious objectors to LGBTQ equality inclines one to wonder if they might have to start referring to the seats for the public in the Supreme Court’s main courtroom as pews rather than benches.