The Supreme Court’s Chance to Defend Religious Liberty

The Supreme Court Building in Washington D.C., August 5, 2021 (Brent Buterbaugh/National Review)

Will this Supreme Court continue to rule consistent with the original meaning of the Constitution? So far, the answer appears to be “yes,” especially when it comes to the vindication of free speech and religious liberty. The Court’s role in safeguarding these important civil liberties is now more crucial than ever. Take, for example, the case of a young businesswoman in Colorado.

Lorie Smith is a website designer and owner of 303 Creative LLC in Denver. She is also a devout Christian with traditional views on marriage. Lorie wants to expand her business to design wedding websites, but worries that she will get caught in the crosshairs of the Colorado Anti-Discrimination Act (CADA) if she declines to create a website for a same-sex wedding. CADA, you may recall, is the same law that continues to stalk Jack Phillips, the owner of Masterpiece Cakeshop, who objects to designing cakes inconsistent with his Christian beliefs on marriage and sexual identity.

Smith asked a federal court to spare her from being forced to design websites celebrating same-sex weddings. When a lower court denied her request, she appealed to the Tenth Circuit Court of Appeals. She lost again. The court ruled that Colorado could both force Smith to create websites that violate her religious beliefs and silence her from explaining her faith to prospective clients. Chief Judge Timothy Tymkovich dissented: “The Constitution protects Ms. Smith from the government telling her what to say or do,” he wrote. “But the majority takes the remarkable — and novel — stance that the government may force Ms. Smith to produce messages that violate her conscience. . . . No case has ever gone so far.” Smith has filed a petition to the Supreme Court to review the decision.

Same-sex wedding celebrations and the protections of the Constitution have been in tension since shortly after the Supreme Court’s 2015 decision in Obergefell v. Hodges, creating a constitutional right to same-sex marriage. In 2018, the Supreme Court ruled against Colorado’s treatment of Phillips after he refused to bake a cake for a same-sex wedding in defiance of CADA — but the justices did not address the constitutionality of CADA. This summer the Supreme Court similarly declined to review the case of Baronelle Stutzman, a Washington florist who was sued by the state and a longtime client for refusing to provide floral arrangements for his same-sex wedding. Stutzman has asked the Court to reconsider her case or hold it until the Court decides whether to grant Smith’s petition.

Alliance Defending Freedom represents Phillips, Stutzman, and Smith. In Smith’s petition to the Court, ADF is quick to point out that “Lorie does not discriminate against LGBT persons and declines to create websites based solely on content.” The petition carefully lays out the conflicting legal standards adopted by federal and state courts in dealing with laws like CADA. It also explains that the Tenth Circuit decision against Smith “flatly contradicts this Court’s free-speech precedents six ways from Sunday.” If the court of appeals decision is left to stand, “the decision will continue to erode essential free speech protections and embolden government officials to punish speakers with whom they disagree.”

As for the assault on religious liberty, Smith says CADA “creates a ‘gerrymander’ where secular artists can decline to speak but religious artists cannot.” Her petition argues that the Tenth Circuit refused to address this differential treatment. It instead concluded that because none of CADA’s exemptions permit “secular speakers” to decline request to provide services for same-sex weddings, the state did not have to accommodate Smith’s religious objection. The best way for the Supreme Court to clarify the Constitution’s capacious protection for religious belief, Smith argues, is to revisit its prior decision in a case also involving a petitioner named Smith.

In Employment Division v. Smith, the Supreme Court held that the Constitution does not require accommodations for religious objectors from neutral, generally applicable laws. The Court’s five originalists are ready to reconsider Smith. Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, wrote this past summer in his concurring opinion in Fulton v. Philadelphia that Smith “abruptly pushed aside nearly 40 years of precedent.” A concurring opinion written by Justice Amy Coney Barrett and joined by Justice Brett Kavanaugh left open the possibility of reconsidering Smith in the future.

Judge Tymkovich, in his dissenting opinion, observed that the case is “another chapter in the growing disconnect between the Constitution’s endorsement of pluralism of belief on the one hand and anti-discrimination laws’ restrictions of religious-based speech in the marketplace on the other.” He’s right, and that’s why all eyes will be on the Supreme Court’s decision whether to hear 303 Creative. The “disconnect” must be addressed — and that can only be done by reconnecting the United States to the principles of its Founders.

Andrea Picciotti-Bayer is director of the Conscience Project, a project advancing conscience rights through public education and amicus support in religious freedom cases.