As currently framed, the case involves Smith’s freedom of speech rather than the First Amendment Constitutional right to “free exercise” of religion. The U.S. Supreme Court sidestepped the religious rights problem in 2018 (click here for tmatt commentary) when it overturned Colorado’s prosecution of wedding cake baker Jack Phillips (who is still enmeshed in a similar case per this from the firm that also represents Smith). Nor did the high court rule on religious freedom aspects when it legalized same-sex marriage in the 2015 Obergefell decision.
Last month, the Biden Administration entered 303 Creative (.pdf here) on the side of Colorado and LGBTQ+ interest groups. Essentially, the Department of Justice argues that as enforced in Colorado or elsewhere, “traditional public accommodations laws … burden no more speech than necessary to further substantial government interests — indeed, compelling interests of the highest order.”
Smith has support from 16 Republican-led state governments and 58 members of Congress, while 21 Democratic states and 137 Congress members take the opposite stance alongside e.g. the American Bar Association.
The issue will face the U.S. Senate after the November elections as Democrats try to “codify” Obergefell into federal law but for passage may need to accept a Republican religious-freedom amendment. The Equality Act, which won unanimous support from House Democrats but is stalled in the Senate, would explicitly ban reliance on federal religious-freedom law in discrimination cases, include crucial laws passed by a broad left-right coalition during the Bill Clinton administration.
Though 303 Creative is not explicitly over religious claims, the precise wording of the forthcoming ruling could conceivably shape future religion cases, of which the most important will involve colleges that uphold a faith’s traditional beliefs on sexuality yet want continued public funding and tax exemption. A pro-LGBTQ+ federal lawsuit against funding targets 25 such campuses.
Not named in that case is Yeshiva University, a Jewish “Modern Orthodox” school currently entangled with New York State for banning a campus gay club, nor is Zaytuna College, a regionally accredited Muslim campus. However, both are among 203 schools condemned as the “absolute worst campuses” by CampusPride.org. Islam’s situation is a fresh story theme on which reporters might interview Zaytuna’s influential President Hamza Yusuf (hyusuf@zaytuna.edu or media contact sahmed@zaytuna.edu or switchboard 510-356-4760).
To The Guy, more attention is needed to the situation facing “mainline” Protestant denominations that endorse same-sex relationships. A religious brief in 303 Creative correctly notes — as a point of authority for change — the liberal stance of the Episcopal Church, Evangelical Lutheran Church in America, Presbyterian Church (USA), United Church of Christ, Unitarian Universalist Association, non-Orthodox Judaism and “countless individual believers.”
But none of those Protestant denominations filed in this case, only a three-state western unit within the United Church of Christ and a 12-state western jurisdiction within the United Methodist Church (whose official traditionalist stance provoked an ongoing divorce in this global denomination). Did these denominations shun a fight against an individual Christian’s conscience claim? Reporters might run that past lead attorney Roy Englert (renglert@kramerlevin.com or 202–775 – 4500).
The briefs that back Smith lay out a predictable human rights argument and come from a predictable lineup of the Roman Catholic bishops, evangelical and conservative Protestant churches, “parachurch” ministries, The Church of Jesus Christ of Latter-Day Saints and a variety of “pro-family,” “social conservative” and religious-rights advocates including the Jewish Coalition for Religious Liberty.
A culturally liberal counter-argument (.pdf here) is made by a coalition that includes, among many others, Reform Judaism, the Muslim Public Affairs Council, Americans United and Columbia University’s Law, Rights & Religion Project. It contends that conscientious objectors like Smith should simply “opt out of marketing their goods or services to the general public” rather than asking for a “broad exemption” that would deny “dignity and equal treatment” for everyone, including “religious minorities.”
FIRST IMAGE: Illustration with a feature on First Amendment issues linked to religion at CourtroomStrategy.com
