{"id":31200,"date":"2022-09-11T02:11:00","date_gmt":"2022-09-11T02:11:00","guid":{"rendered":"https:\/\/www.lifeandnews.com\/articles\/?p=31200"},"modified":"2022-09-12T09:09:39","modified_gmt":"2022-09-12T09:09:39","slug":"supreme-court-to-revisit-lgbtq-rights-this-time-with-a-wedding-website-designer-not-a-baker","status":"publish","type":"post","link":"https:\/\/www.lifeandnews.com\/articles\/supreme-court-to-revisit-lgbtq-rights-this-time-with-a-wedding-website-designer-not-a-baker\/","title":{"rendered":"Supreme Court to revisit LGBTQ rights \u2013 this time with a wedding website designer, not a\u00a0baker"},"content":{"rendered":"\n

Charles J. Russo<\/a>, University of Dayton<\/a><\/em><\/p>\n\n\n\n

A simmering, difficult, and timely question returns to the Supreme Court this fall: What happens when freedom of speech and civil rights collide?<\/p>\n\n\n\n

The court took up similar questions four years ago in the famous \u201cgay wedding cake\u201d case<\/a>, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission<\/a>, about a baker who refused to provide services for a same-sex couple based on his religious beliefs. The justices ruled in his favor, but did so on narrow grounds, sidestepping the direct constitutional questions over freedom of religion and free speech.<\/p>\n\n\n\n

Now, another case from Colorado about free speech and same-sex marriage has made its way to the court: 303 Creative v. Elenis<\/a>. As a professor of law and education<\/a> who pays particular attention to First Amendment issues, I see the case highlighting tension between two competing fundamental interests \u2013 interests that seem to clash routinely in 21st-century America.<\/p>\n\n\n\n

On Aug. 30, 2022, for example, another similar case was decided<\/a>, this time in Kentucky. A federal trial court<\/a> ruled in favor of a Louisville wedding photographer who sued over the city\u2019s \u201cFairness Ordinance,\u201d which prohibits discrimination based on sexual orientation or gender identity. She argued that the law violated her religious beliefs and right to free speech, and the court agreed, explaining that \u201cthe government may not force singers or writers or photographers to articulate messages they don\u2019t support.\u201d<\/p>\n\n\n\n

Freedom to speak \u2013 or stay silent<\/h2>\n\n\n\n

Graphic artist Lorie Smith is the founder and owner of a studio called 303 Creative<\/a>. According to court documents<\/a>, Smith is generally willing to serve LGBTQ clients. However, she intends to begin designing wedding websites and is unwilling to create them for same-sex couples, saying it would go against her Christian beliefs.<\/p>\n\n\n\n

Under Colorado\u2019s Anti-Discrimination Act<\/a>, though, it is discriminatory and illegal to refuse services to someone based on \u201cdisability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.\u201d<\/p>\n\n\n\n

In 2016, Smith sued the members of the state\u2019s Civil Rights Commission and Colorado\u2019s attorney general<\/a>. Smith argued that being required to prepare a same-sex wedding website would violate her First Amendment<\/a> rights by forcing her to speak \u2013 what lawyers refer to as \u201ccompelled speech.\u201d<\/p>\n\n\n\n

The constitutional right to freedom of \u201cspeech\u201d has historically been understood to cover a variety of ways people express themselves, including in writing, art and protest. But not only does it protect the right to protect one\u2019s speech, it also safeguards the right to not speak in the first place<\/a>.<\/p>\n\n\n\n

Through her attorneys, Smith also maintained that requiring her to create a website would violate her First Amendment<\/a> right to the free exercise of religion.<\/p>\n\n\n\n

Path to SCOTUS<\/h2>\n\n\n\n

The federal trial court in Colorado rejected Smith\u2019s request<\/a> to block the anti-discrimination law in 2019. When she appealed, the circuit court<\/a> agreed with the previous ruling: She could not refuse to create websites for same-sex weddings, even if it would have gone against her beliefs.<\/p>\n\n\n\n

Protecting diverse viewpoints is \u201ca good in and of itself,\u201d the court wrote, but combating discrimination \u201cis, like individual autonomy, \u2018essential\u2019 to our democratic ideals.\u201d<\/p>\n\n\n\n

In a lengthy dissent<\/a>, the chief judge highlighted Smith\u2019s claim of compelled speech, criticizing the court for taking \u201cthe remarkable \u2013 and novel \u2013 stance that the government may force Ms. Smith to produce messages that violate her conscience.\u201d<\/p>\n\n\n\n

Smith appealed to the Supreme Court, which, in February 2022, agreed to hear her claim, limited to the issue of free speech, not freedom of religion. The question for the nine justices to decide<\/a> will be \u201cwhether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.\u201d<\/p>\n\n\n\n

\"A
Jack Phillips, whose Masterpiece Cakeshop case went to the Supreme Court, stands in his Colorado bakery. Matthew Staver\/For The Washington Post via Getty Images<\/a><\/figcaption><\/figure>\n\n\n\n

Key to the case?<\/h2>\n\n\n\n

So, how will the justices rule? The Supreme Court may have given a clue to its initial attitude when it announced it would hear the case<\/a>. The justices zoomed in on a legal standard called \u201cstrict scrutiny,\u201d as they did in its earlier case on this issue, Masterpiece Cakeshop.<\/p>\n\n\n\n

Under strict scrutiny analysis<\/a>, the most stringent form of judicial review, government restrictions on fundamental rights must be justified by a compelling state interest in order to be upheld. In other words, the restrictions must advance government interests of the highest order, and be narrowly tailored to those goals \u2013 in this case, preventing discrimination on the basis of sexual orientation.<\/p>\n\n\n\n

But the Supreme Court appeared skeptical that Colorado\u2019s anti-discrimination act could survive this test, writing<\/a>, \u201cThe Tenth Circuit applied strict scrutiny and astonishingly concluded that the government may, based on content and viewpoint, force Lorie to convey messages that violate her religious beliefs and restrict her from explaining her faith.\u201d<\/p>\n\n\n\n

When the Supreme Court applies strict scrutiny, it rarely upholds governmental restrictions on constitutional rights \u2013 which could suggest a win for Smith.<\/p>\n\n\n\n

Another possible indication, again in favor of Smith, is in Janus v. American Federation of State, County, and Municipal Employees, Council 31<\/a>, a 2018 case from Illinois involving compelled speech. Here the Supreme Court ruled in favor of a nonunion public employee who challenged an Illinois law requiring him to pay fair share fees to the union representing his colleagues for costs associated with the bargaining process. The court agreed with the employee\u2019s claim that because the union supported positions with which he disagreed, his having to pay the fees violated his First Amendment right as a form of compelled speech.<\/p>\n\n\n\n

A second chance<\/h2>\n\n\n\n

On the other side of the controversy is the vital interest of same-sex couples and others in the LGBTQ community to live free from discrimination based on their sexual orientations.<\/p>\n\n\n\n

In a 2019 case, Bostock v. Clayton County<\/a>, the Supreme Court interpreted Title VII of the Civil Rights Act of 1964<\/a>, a far-reaching employment statute, as extending protection against discrimination in the workplace to individuals who are gay and transgender. However, the Court has yet to address the clash of rights at issue in 303 Creative.<\/p>\n\n\n\n

The key question, then, appears to be whether individuals can require artists or those who engage in expressive activities to provide their services if doing so can be viewed as a form of compelled speech, violating their right to stay silent on issues with which they disagree.<\/p>\n\n\n\n

Thus, it remains to be seen whether 303 Creative will set a new precedent on balancing First Amendment freedoms while protecting others from discrimination. After all, it sidestepped constitutional issues in Masterpiece Cakeshop<\/a>. The court based its decision<\/a> in the baker\u2019s favor on some of the Colorado commission members\u2019 comments about his beliefs. The majority found that those comments violated the state\u2019s First Amendment duty to maintain religious neutrality while avoiding hostility to faith-based beliefs or viewpoints.<\/p>\n\n\n\n

While the court has not set a date for oral arguments, and likely will not render a judgment until near the end of its term in June 2023, it promises to be one of the upcoming year\u2019s highest-profile judgments. And, regardless of the outcome, 303 Creative is likely to generate even more controversy.<\/p>\n\n\n\n

Charles J. Russo<\/a>, Joseph Panzer Chair in Education in the School of Education and Health Sciences and Research Professor of Law, University of Dayton<\/a><\/em><\/p>\n\n\n\n

This article is republished from The Conversation<\/a> under a Creative Commons license. Read the original article<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

Charles J. Russo, University of Dayton A simmering, difficult, and timely question returns to the Supreme Court this fall: What happens when freedom of speech and civil rights collide? The court took up similar questions four years ago in the famous \u201cgay wedding cake\u201d case, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, about a […]<\/p>\n","protected":false},"author":44,"featured_media":31201,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[36,4],"tags":[2254,2556,5954,2072,6610,2029,686,1666,4509],"_links":{"self":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts\/31200"}],"collection":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/users\/44"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/comments?post=31200"}],"version-history":[{"count":2,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts\/31200\/revisions"}],"predecessor-version":[{"id":31206,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts\/31200\/revisions\/31206"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/media\/31201"}],"wp:attachment":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/media?parent=31200"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/categories?post=31200"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/tags?post=31200"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}