By a 6-to-3 vote, in a majority decision written by Justice Gorsuch, the conservative justices of the Supreme Court ended certain protections provided to LGBTQ individuals in the State of Colorado in the case of 303 Creative LLC. vs. Elenis, No. 21-476, decided on June 30, 2023. The case was brought by Lori Smith, a Christian web designer, who claimed she faced adverse consequences if she published a statement on her website that she would not provide services to same sex couples. She further claimed her opposition was based upon her fervent religious beliefs. According to Smith, Colorado would consider her proposed public statement a violation of its public accommodations law subjecting her business to harmful consequences by Colorado Civil Rights Commission, the agency responsible for addressing such violations of law.
Even though Smith had not designed the website nor did any individual file a claim, the Supreme Court exercised its discretion to hear this imaginary case and issued a 26-page opinion ending certain protections for LGBTQ persons in the state. In so doing, the Court provided justification for any other business owner who objects to LGBTQ people, premised on some fervently held religious hatred, to defy any law prohibiting LGBTQ discrimination in Colorado. Surely, similar imaginary cases are likely to arise in other states, as the attack on LGBTQ protections escalates, fueled by hate mongering political candidates contending for various elected positions throughout the country.
The website design case presented the most recent example of the tension created when discrimination protections, here, in the form of Colorado’s public accommodation law, intersect with First Amendment protections which forbid the government from compelling people to say something they would rather not say. Colorado’s public accommodations’ law, similar to that in other states, prohibits discrimination on the basis of certain protected characteristics, including sexual orientation. The law defines “public accommodation” broadly to include any “place of business engaged in any sales to the public and any place offering services . . . to the public,” but excludes “a church, synagogue, mosque, or other places that is principally used for religious purposes.” Thus, public accommodation protections make clear that LGBTQ persons have every right to acquire goods and services, offered to the general public, by any business operating within the state of Colorado. A bar or restaurant, for example, that refused to serve a same sex couple, could be held to have violated this law.
What makes this Supreme Court decision exceptional, beyond the result which removes protections from the LGBTQ community, is the fact that the Court departed from its well-recognized case and controversy doctrine in hearing this case in the first instance. The case and controversy principle requires that there must be a concrete dispute, not a hypothetical or academic disagreement, before the Court will hear a case. Ignoring this prerequisite, the Court decided to address Lori Smith’s claims, which, in essence, sought to clarify her First Amendment rights based upon her hypothetical facts, not because there was a complaint filed against her or a finding by Colorado state actors adverse to her. In other words, no actual controversy.
This departure calls into question the Court’s integrity. It undermines the public’s trust in the Court because it supports the viewpoint that the Court’s conservative majority is laser focused on advancing a conservative political agenda rather than merely deciding legal issues which have always historically respected precedent and guiding principles which have been developed throughout the Court’s tenure. When the Court departs from its own guiding principles, such as the case and controversy doctrine, trust in the Court is undermined. Other recent decisions enforce this point of view.
Five years ago, the Court considered First Amendment issues in a case involving a Colorado baker who refused to make a cake for a same-sex wedding, claiming religious objections because he was a devout Christian. The 7-2 ruling, in the case of Masterpiece Cakeshop vs. Colorado Civil Rights Commission, 138 S. Ct. 1719, decided June 4, 2018, determined religious and philosophical objections to gay marriage are protected views and, in some instances, protected forms of expression. While recognizing that Colorado law can protect gay persons in acquiring products and services through its anti-discrimination laws, the Court nonetheless undermined the law’s viability when challenged by a religious objection inherent in the First Amendment. Accordingly, to reach a result which elevated religious expression, the Court held that the cake maker, claiming he used his artistic skills to make an expressive statement, a wedding cake in his own voice and of his own creation, advanced First Amendment protection for his creative speech grounded in his religious beliefs. Having found that the baker had a First Amendment right to freely express his religious views through his cake designing, the Court determined that the freedoms asserted by the cake maker were both freedoms of speech and the free exercise of religion. Thus, the challenged discrimination statute would only survive this First Amendment challenge if it was applied neutrally, without hostility towards religion or, in other words, in a neutral manner without placing any burden on the cake maker because of his religious expression.
While recognizing that Colorado can protect “gay persons and gay couples in the exercise of their civil rights,” the Court found that consideration was compromised by the clear and impermissible hostility shown by the Colorado Commission processing the same sex couple’s complaint towards the sincere religious beliefs motivating the cakemaker’s objections. Thus, the majority decision, written by then Justice Kennedy, joined by Justice Roberts, Breyer, Alito, Kagan and Gorsuch, found that the Commission’s treatment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint. In a concurring opinion, Justice Kagan noted the general rules that religious and philosophical objections do not allow business owners and other actors to deny LGBTQ persons equal access to goods and services under a neutral and generally applicable accommodations law. Justice Kagan sought to reaffirm that this guiding principle of the Court remains viable. Nonetheless, Justice Kagan agreed with the majority in concluding that state actors, in considering violations of these laws, cannot show hostility to religious views but give those views neutral and respectful consideration. The Court cited the various statements and comments made by Colorado Commissioners in deciding the cake maker’s case which they found to be offensive and hostile to his religious beliefs. Clearly of less importance was the cake makers’ hostility towards same sex couples.
In a concurrence, Justice Gorsuch, together with Alito, signaled how they would handle future challenges to a state’s authority by highlighting, as controversial, a prior holding which declined to find a state violated its authority when challenged by a religious freedom claim in the case of Employment Div. Dept. of Human Resources of Ore. v. Smith, 110 S. Ct. 1595, decided in 1990. In that case, the Court held that a neutral and generally applicable law will usually survive a constitutional free exercise challenge. That case involved a denial of unemployment benefits to two persons fired from their jobs with a private drug rehabilitation organization because they ingested peyote for sacramental purposes at a ceremony of the Native American Church, of which both were members. Rejecting a claim that the state’s denial of unemployment benefits violated their constitutional right of religious freedom, the Court found any constitutional violation to be incidental to the state’s interests in denying the benefits.
In finding this holding to be controversial, Gorsuch signaled how he would rule in the future when given the opportunity and, of course, the present conservative majority. Advancing a political agenda elevating religious expression and freedoms over state interests threatens to throw state-imposed obligations into a state of chaos and confusion.
This sets a dangerous precedent. As aptly noted by Justice Brennan in a dissenting opinion cited in Smith, “What principle of law or logic can be brought to bear to contradict a believer’s assertion that a particular act is ‘central’ to his personal faith?” This is made all the more difficult and complicated given this nation includes individuals who are not religious and not Christian. Who decides what religion takes precedence over any other?
Notably, Justice Brennan further rightfully observed that “[r]epeatedly and in many contexts, we have warned that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim.” Given society’s diversity of religious beliefs, Brennan also cautioned that any society adopting a system requiring any law to demonstrate a compelling interest when faced with a religious claim, “would be courting anarchy. . .”
The above noted decisions, while seizing the opportunity to disadvantage LGTBQ persons, also signal the clear tendency of the conservative majority of the Court to do exactly what Justice Brennan so rightfully warned against. This conservative Court is opening “the prospect of constitutionally required religious exemptions from civic obligation of almost every conceivable kind” imposed by any number of state laws. As Brennan concluded “The First Amendment’s protections of religious liberty does not require this.”
Unfortunately for the majority of us, there are now 6 Supreme Court justices making decisions motivated by a particular political agenda which is not accounting for the views of a majority of Americans and discounting prior Court precedence and guidance to get to the intended result. The overall impact of these devastating decisions on the American system of justice is undeniably negative and dangerous, undoing the decades of progress queer Americans and allies have fought so valiantly for.