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Same-sex wedding case among religious challenges on Supreme Court docket

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Friend-of-the-court briefs representing hundreds of individuals and religious, civil rights, advocacy and government organizations have been filed in a case over whether a graphic artist has the right to decline work from same-sex couples. File Photo by Ken Cedeno/UPI | <a href="/News_Photos/lp/681cb28a59c6a5797eb6d1bf60e00ffb/" target="_blank">License Photo</a>
Friend-of-the-court briefs representing hundreds of individuals and religious, civil rights, advocacy and government organizations have been filed in a case over whether a graphic artist has the right to decline work from same-sex couples. File Photo by Ken Cedeno/UPI | License Photo

Oct. 3 (UPI) -- The case of a Colorado graphic artist who argues she has a right to decline to design websites celebrating same-sex weddings because they are inconsistent with her religious convictions is scheduled to be heard during the U.S. Supreme Court term that begins Monday.

The appeal, 303 Creative LLC vs. Elenis, could take up where a similar Colorado case involving a baker's refusal to make a wedding cake for a gay couple left off.

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Lorie Smith, owner of 303 Creative LLC in the Denver area, says she wants to expand her business into wedding websites in large part to promote her belief that God designed marriage as an institution between one man and one woman. In addition, she wants to post a statement on her website explaining that she cannot create content that conflicts with her Christian faith, according to her appeal.

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However, the Colorado Anti-Discrimination Act says a "public accommodation" cannot directly or indirectly refuse to provide services to customers because of their sexual orientation or publish any communication indicating their patronage is unwelcome.

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Smith, who says she is being censored, filed suit seeking to block enforcement of CADA. A federal trial court judge ruled against her and the 10th U.S. Circuit Court of Appeals upheld that decision in a 2-1 ruling.

Alliance Defending Freedom, which represents Smith, appealed to the Supreme Court to reverse the 10th Circuit. The organization says Smith's free exercise of religion and free speech rights are being violated because of how Colorado interprets CADA's accommodation clause.

The justices took the case but limited their consideration to whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.

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Lawyers for Aubrey Elenis, director of the Colorado Civil Rights Division, and other state officials named as defendants in Smith's suit counter in a brief that the antidiscrimination law is a "straightforward regulation of commercial conduct."

The brief says "prohibiting companies from displaying what would amount to 'Straight Couples Only' messages is permissible because it restricts speech that proposes illegal activity and is therefore unprotected by the First Amendment."

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In addition, Smith has failed to show there is a credible threat of enforcement under CADA, the brief says.

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"The record contains no evidence that anyone has asked the company to create a website for a same-sex wedding; that Colorado has threatened enforcement; or that any future wedding website would convey a message that would be attributed to the company," the brief says.

Weighing in

Friend-of-the-court briefs representing hundreds of individuals and religious, civil rights, advocacy and government organizations have been filed in the case.

Recognizing LGBT rights was not intended to diminish religious freedom, a brief submitted by the Church of Jesus Christ of Latter-Day Saints, the Lutheran Church-Missouri Synod and the Islam and Religious Freedom Action Team of the Religious Freedom Institute in support of 303 Creative says.

"Without vigilant protection for free speech in cases like this -- which have deep symbolic significance, as well as practical implications -- those with traditional religious understandings of marriage, family and sexuality will be suppressed and silenced," their brief says.

Life Legal Defense Foundation and Bioethics Defense Fund argue the government compelling speakers to convey a message contrary to their beliefs has always been considered one of the gravest First Amendment violations.

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"Constitutionally, the government cannot be permitted to place any interest, however 'compelling,' above the right not to express a message contrary to one's convictions," the organizations say in a brief.

But opponents say a free-speech exception to CADA would threaten the civil rights of religious minorities.

"This case could drag us back to a time when religious and other minority groups were forced to go door to door, seeking a business that would serve them and seeing only signs barring their presence: No Jews, No Blacks, No Irish," Rachel Laser, president and CEO of Americans United for Separation of Church and State, said in a statement.

The Western Jurisdiction of the United Methodist Church, Rocky Mountain Conference of the United Church of Christ, Unitarian Universalist Association and Reconstructionist Rabbinical Association joined in a brief that says CADA does not infringe on free speech because it does not require public accommodations to express any religious views or religiously endorse unions they find offensive but merely requires they provide equal access to goods and services offered to the general public.

Cakes for gay weddings

Alliance Defending Freedom also made free speech and free exercise of religion arguments in the case of another devout Christian client, baker Jack Phillips of Masterpiece Cakeshop, who refused for religious reasons in 2012 to make a wedding cake for a same-sex couple. The men filed a complaint with the Colorado Civil Rights Commission alleging Phillips had violated CADA and a state administrative law judge agreed.

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The commission then entered an administrative order requiring Masterpiece Cakeshop to cease and desist from discriminating against same-sex couples. Phillips appealed and Masterpiece Cakeshop Ltd. vs. Colorado Civil Rights Commission made its way through state courts to the U.S. Supreme Court, where the justices overturned the order in 2018.

The ruling did not address the free-speech issue and was based on narrow grounds. The 7-2 opinion said that during the administrative proceedings, commission members had shown hostility toward Phillips' sincere religious beliefs, which cast doubt on the fairness and impartiality of the adjudication of the case.

A favorable decision for 303 Creative on broader grounds could have a significant impact, according to Geoffrey Blackwell, litigation counsel for American Atheists, which has joined in a friend-of-the-court brief supporting Colorado.

"In Masterpiece, they were saying the act of making a cake by a baker involves a lot of expression of their own artistic skill and perspective," Blackwell said. "303 is attempting to expand that to include, it seems, coding websites, at which point I'm not sure which work is not in some way artistic expression."

He added the United States is a secular government and the idea that one person's religious beliefs should be privileged over another person's right to participate in the market "should be anathema to any American."

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In a similar case, Melissa and Aaron Klein are asking the justices to reverse an Oregon Court of Appeals ruling that upheld a finding by the state Bureau of Labor and Industries that they violated the public accommodation law by declining in 2013 to make a custom wedding cake for a same-sex couple. The Kleins were ordered to stop discriminating based on sexual orientation and assessed $135,000 in damages.

The Gresham bakery, Sweetcakes by Melissa, was driven out of business by a $135,000 penalty imposed by the bureau, the couple say.

The Oregon Supreme Court declined to review the BOLI decision and the Kleins appealed to the U.S. Supreme Court. The justices sent the case back to the Oregon Court of Appeals for further consideration in light of their Masterpiece decision.

The Court of Appeals again rejected the Kleins' arguments that forcing them to celebrate same-sex wedding ceremonies violated the Free Speech and Free Exercises clauses. But the court concluded BOLI's handling of the damages portion of the case "does not reflect the neutrality toward religion required by the Free Exercise Clause" and sent the matter back to the agency for a reassessment.

BOLI imposed $30,000 in damages and the Kleins appealed again to the U.S. Supreme Court.

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"A victory would be a huge step in the right direction to restore and protect religious liberty in the marketplace," the Kleins' lawyers at First Liberty Institute say in a website post. "It could deliver relief to countless faith-based business owners who face hostile treatment and the real threat of closure and bankruptcy because of their beliefs."

Decisions by the justices on requests to hear the Kleins' appeal and other appeals for the 2022-23 session are pending. Religious freedom organizations are watching these cases:

'Offended observer' lawsuits

In response to a series of drive-by shootings that injured several children in 2014 in Ocala, Fla., police reached out to residents for help in bringing the perpetrators to justice. Community leaders arranged a prayer vigil and the Ocala Police Department posted information on its Facebook page, court documents say.

The American Humanist Association and four residents who attended the vigil later sued in federal court, claiming violation of the First Amendment's prohibition against government establishment of religion. The plaintiffs said the event contained religious elements that offended them and made them feel excluded.

A U.S. district judge ruled in 2018 that the city of Ocala and police Chief Greg Graham violated the Establishment Clause and awarded each of the plaintiffs $1 from the defendants. The city and chief then appealed the judge's ruling that at least one of the plaintiffs had "offended observer" standing to sue and after losing at the 11th U.S. Circuit Court of Appeals, went to the Supreme Court.

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City of Ocala vs. Rojas centers on whether psychic or emotional offense allegedly caused by observing religious messages is sufficient to confer "offended observer" standing under the Constitution, which allows someone to file a federal lawsuit, including in cases where the person deliberately seeks out the exposure.

The Supreme Court said in a previous case it is unconstitutional for the government to do something that sends a message that a particular religion is favored and therefore, people who do not share that view are disfavored or excluded, said Walter Weber, senior counsel for the American Center for Law and Justice, which represents Ocala.

The Supreme Court never said that decision gives someone the right to sue in federal court over alleged violations of the Establishment Clause but lower courts have inferred it does, Weber said.

"That's why you had over the years all those cases where people will sue over a monument or a cross on a city seal or a motto that mentions God," he said.

The appeal is asking the justices to rule that just hearing about a supposed constitutional violation is not enough to get into federal court.

"If we win, that would put an end to all these cases where people sue just because they heard about something or saw something or witnessed something that they considered to be unconstitutional," Weber said.

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Protecting places of worship

Members of the Falun Gong religion alleged they have been threatened and attacked by agents of the Chinese government since 2011 at sidewalk booths in Flushing, N.Y., where they pray and proselytize. Their religion, which originated in China, is subject to violent persecution by the Chinese Communist Party and these practitioners were drawn to America because of its promise of religious liberty, they say.

A group of practitioners filed a federal suit against affiliates of the Chinese Anti-Cult World Alliance claiming violations of the Freedom of Access to Clinic Entrances Act of 1994, which was passed in the wake of sit-ins at abortion clinics. The act, which was amended to also include places of worship, prohibits violence against persons exercising their right to religious freedom at a "place of religious worship" and persons obtaining or providing reproductive health services.

A district court judge ruled the booths meet the test to be a place of religious worship but the 2nd U.S. Circuit Court of Appeals reversed the decision. Only places which "religious adherents collectively recognize or religious leadership designates as a place primarily to gather for or to hold religious worship activities" meet the necessary conditions to qualify for FACEA's protections, according to the appeals court.

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The Human Rights Law Foundation and the Stanford Law School Religious Liberty Clinic, which are representing the Falun Gong members, say the plain text of the act makes clear that all places used for worship are covered.

"The court's test not only left unprotected petitioners' prayer and proselytizing at booths on the streets of Flushing, but it would also exclude pilgrims chanting on the way to shrines, congregations conducting a sunrise Easter service at a public park, Muslim taxi drivers kneeling for prayer in an airport parking lot, or Native Americans conducting spirit quests in a national forest," the organizations say in a petition for review. "And if anything, worshipers in such places may be even more likely targets of bigoted violence than those gathered in a traditional house of worship."

The Chinese Anti-Cult World Alliance has filed a cross-petition arguing the section of FACEA that prohibits intimidation and other wrongful acts against worshipers at places of worship is unconstitutional because it exceeds Congress's authority under the Commerce Clause.

Growing a religious beard

In Georgia, inmate Lester Smith's request to grow a beard in prison was denied by the state Department of Corrections because of security concerns.

Smith, who believes as a devout Muslim that an untrimmed beard is required by his faith, then filed a lawsuit in 2012 asking for a religious accommodation under the Religious Land Use and Institutionalized Persons ACT. RLUIPA prohibits regulations that impose a "substantial burden" on the religious exercise of prisoners unless the institution can demonstrate the rule serves a compelling governmental interest and is the least restrictive way to pursue that interest.

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"The vast majority of prison systems across the country do allow a short religious beard," Mark Rienzi, president and CEO of the Becket Fund, said in a Thursday call with reporters to preview the Supreme Court term.

After Smith lost at the U.S. District Court and the 11th Circuit of Appeals, the Becket Fund and the University of Virginia Appellate Litigation Clinic asked the Supreme Court to take the case.

Keeping the sabbath

When the U.S. Postal Service began delivering packages for Amazon on Sundays, Gerald Groff, a mail carrier in Lancaster County, Pa., asked to work extra shifts during the week so he could keep the sabbath holy. His request was granted at first but in 2016, the USPS established a process for scheduling all employees on Sundays and holidays on a rotating basis.

Groff informed his employer he would not work on his scheduled Sundays because that would violate his Christian beliefs. The postmaster asked for volunteers to cover his shifts but that approach did not consistently accommodate Groff and his absences during the Post Office's peak season, which required that other carriers work more Sundays.

When a replacement could not be found and he did not report for work, Groff faced progressive discipline. Facing termination in 2019, Groff resigned and sued the Postal Service under Title VII of the Civil Rights of 1964, which requires employers to reasonably accommodate employees' religious practices unless doing so would cause "undue hardship" on the conduct of the business.

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A federal trial court found in favor of the Postal Service, concluding it offered Groff a reasonable accommodation by attempting to swap his shifts with other employees. In addition, the court held that exempting Groff from Sunday deliveries would cause undue hardship because of the impact on his co-workers.

Attorneys with First Liberty Institute assert in Groff vs. United States Postal Service that "undue hardship" means significant difficulty or expense and Title VII requires the employer to show undue hardship on the conduct of the employer's business, not merely that an accommodation burdens or inconveniences the plaintiff's co-workers.

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