When the U.S. Supreme Court legalized same-sex marriage nationwide in Obergefell in 2015, Justice Kennedy wrote for the majority recognizing that people may object based on “decent and honorable religious or philosophical” beliefs. Just seven years later, another Christian wedding artist is before the Court, asking for it to protect those “decent and honorable” beliefs from the coercive arm of local government.
Colorado’s solicitor general and some of the U.S. Supreme Court justices see no problem with the government compelling speech, regardless of the coerced individual’s convictions. During oral arguments this week in the case 303 Creative v. Elenis, Justices Kagan, Jackson, and Sotomayor seemed to side with Colorado’s attorney, making the case that Lorie Smith should be forced to design wedding websites for same-sex couples if she creates them for traditional marriages – even if doing so violates her conscience or religious beliefs. So much for dissent being “decent and honorable.”
The leading argument in support of forcing artists to create messages with which they strongly disagree is stunning. Colorado’s attorney equated same-sex marriage to interracial marriage, setting up the repugnant notion that dissent of same-sex marriage equates to racism. (Incidentally, the so-called “Respect for Marriage Act” also makes that equation.)
Justice Alito asked, “In light of what Justice Kennedy wrote in Obergefell about honorable people who object to same-sex marriage, do you think it’s fair to equate opposition to same-sex marriage with opposition to interracial marriage?” The Colorado attorney answered, “Yes.”
Referencing a similar case, Masterpiece CakeShop, Justice Gorsuch was clearly unhappy with Colorado’s treatment of the Christian baker, Jack Phillips, who had to go through a “re-education program” because he continued to hold to his beliefs of biblical marriage. The attorney denied it was a re-education program, saying, “It was a process to make sure he was familiar with Colorado law.” Gorsuch replied, “Someone might be excused for calling that a re-education program.”
Laws that burden religious beliefs must reach a high legal standard. The government must show it has a compelling interest in the law, and the law must be narrowly tailored and the least restrictive. Smith’s attorney, Alliance Defending Freedom’s CEO, President, and General Counsel, Kristen Waggoner brilliantly argued the state of Colorado also defied the compelled speech doctrine, violating Smith’s First Amendment right to free speech. The Court had already held that a website is a form of speech.
As Waggoner stated, “If the government may not force motorists to display a motto, school children to say a pledge, or parades to include banners, Colorado may not force Ms. Smith to create and speak messages on pain of investigation, fine, and re-education.”
Several justices asked about a number of hypothetical situations, including whether a publishing house could refuse to publish books that don’t support same-sex marriages. Justice Kavanaugh asked Colorado’s attorney, “Does the publishing house have a First Amendment ability to select the kinds of books that it will publish?” The attorney agreed it does. Kavanaugh asked, “If it were a public accommodation, it would still have a First Amendment right, correct?” The attorney answered, “Yes,” and pointed out that public accommodation law forbids businesses from turning someone away based on who they are, and that it would be different if the publishing house turned away all “gay authors.” Kavanaugh pointed out the obvious hypocrisy, “Right. That’s the distinction right there.”
Smith does serve those who identify as LGBTQ; she just doesn’t create messages that celebrate their marriages because it violates her conscience.
It’s the message Smith is being forced to speak, not the people she serves that violates her rights. Or, as Justice Gorsuch put it, “the question isn’t who, it’s what,” meaning the speech being compelled by the government.
What seems to get lost here is the fact that marriage, for the Christian, is God-ordained. It is God’s design; it is sacred, and it is between a man and a woman. Muslims, Jews, and others share very similar views of marriage. People from all walks of life throughout the world have held to the sacred view of man-and-woman marriage since – well, forever.
Yet, just seven years into Obergefell, what is held sacred is now being equated to racism by a movement pushing to outlaw dissent.
Gratefully, the line of questioning seems to suggest a majority of the Court will rule in Smith’s favor. How broad or narrow the ruling will make a big difference in whether we see another artist before the Court fighting for his or her basic First Amendment rights.
The Court will hand down its opinion by the end of next June.
Dis-“Respect for Marriage Act” heads to President
A somber update to last week’s FMF on the ill-titled “Respect for Marriage Act;” the U.S. House passed the bill Wednesday, sending it to President Biden to sign. The act repeals the Defense of Marriage Act, which stated marriage is between one man and one woman. It also forces every state to acknowledge most marriages deemed legal in any other state, including but not limited to same-sex marriage. The U.S. Senate passed the bill last week without the necessary religious freedom protections for those who hold to the biblical and historic view of marriage. The House vote was 258-169-1, with all Democrats and 49 Republicans voting in favor of changing the definition of marriage. Arizona’s Congressmen and women voted along party lines.
Awaiting another court ruling
We await a ruling on whether an appellate court panel will lift an injunction that is keeping Arizona’s abortion prohibition from being enforced. The three-judge panel heard arguments late last week and could rule at any time.
It’s an argument we have heard before – Planned Parenthood wants the courts to “harmonize” all the abortion laws in the state and come up with something that legalizes abortion and strikes down a pre-Roe law prohibiting abortion except to save the life of the mother.
The Arizona Attorney General’s office argues it is a simple case: The only thing that kept the pre-Roe law from being enforced was Roe. Now that Roe has been overturned, the injunction should be lifted, and the law made enforceable.
The judges seemed to side with Planned Parenthood, claiming the Arizona Legislature didn’t make it clear in the latest abortion law – one that prohibits abortion after 15-weeks gestation – that the pre-Roe law should trump all abortion laws if Roe is overturned. This, despite the fact the 15-week law did include language stating it did not create or recognize a right to abortion, nor did it repeal the pre-Roe law.
The panel may very well rule in Planned Parenthood’s favor, but it will then go to the Arizona Supreme Court, where the law hopefully will prevail.
- Read or listen here to Al Mohler’s assessment of the oral arguments in 303 Creative.
- Read here how a Virginia restaurant manager refused basic service to CAP allies at Virginia Freedom Foundation because they are pro-life and hold to a biblical view of marriage. Even the courts distinguish between basic services and creative services they deem “speech.”
- Read here how an Indiana school compels teachers and counselors to hide students’ “transition” from parents. See the inside email and “gender support plan” in the article. Yes, this could happen in Arizona.
- Read here how some twist the gospel to fit cultural norms and political agendas, attributing to God what He never said, as well as the fallout of such progressive Christianity.
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