Religious Beliefs as Freedom of Expression
303 Creative in a pluralistic society
I have long had an interest in religious freedom jurisprudence. Each new case seems to raise fresh questions about the rights of religious practitioners to protect their “strongly held religious beliefs”. This has been made more complicated by the fact that the Supreme Court has never required any litmus test on the validity or reasonableness of those beliefs. Going back to United States v. Ballard in 19441, the Court has taken the stance that religious beliefs are personal.
This position presents a challenge, especially when a tension exists between religious beliefs and “generally applicable laws”. In 1990’s Oregon Employment Division v. Smith, the Native American plaintiffs had been fired from their job as drug counselors for using peyote during a religious ceremony. The majority opinion of the Supreme Court, written by Antonin Scalia, argued that the general laws against drug use trumped the specific religious expression.
In general, conservatives and many liberals hated the Smith decision. That’s where the 1993 Religious Freedom Restoration Act (RFRA) came from (overturned in 1998 in Boerne v. Flores). Many states enacted their own versions of RFRA.2
The tensions between general laws and religious beliefs regularly find themselves taken up by the Supreme Court. In the Obergefell v. Hodges case outlawing gay marriage bans3, Justice Kennedy’s majority opinion included this paragraph:
Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex. (emphasis mine)
Rather than continuing the ambiguous tensions articulated by Justice Kennedy, the current membership of the Supreme Court (meaning the conservatives) have clearly sided with religious expression. This is seen in last year’s Kennedy v Bremerton case about the praying football coach and this year’s Groff v. USPS case about the postal worker who had to work on Sunday.
The Court took a giant leap down the road it’s been traveling with Friday’s decision in 303 Creative v. Elenis. You’ve likely heard the details of the case: Lori Smith4 has a web design company here in Denver. She hopes to branch out into web design for weddings. She wanted to avoid providing wedding services for same-sex couples because she believes that same-sex marriage is wrong. Represented by the Alliance for the Defense of Freedom (one of the major Christian Legal Organizations), she reached out to the Colorado Commission on Human Rights arguing that she wanted to advertise this limitation5. The Commission said that would violate the Colorado Anti-Discrimination Act (CADA).
Rather than claiming her religious freedom was being denied, Smith argued (through ADF) that this was really about speech. That to require her to say nice things about same-sex weddings would constitute the state coercing her to say things she didn’t believe.
This case was tailor made to make it to the Supreme Court. First, the case relies on potential harm as opposed to actual harm by taking the preliminary step of getting a negative judgment. Second, it is no surprise that it involves Colorado’s Commission on Human Rights since members of that group had made ostensibly anti-religious comments about Jack Phillips in the Masterpiece Cake decision. Third, since Christian Legal Organizations had been unable to establish the religious freedom wedding claims in Arlene’s Florists v. Washington, in which the Supreme Court denied certiori, switching to freedom of speech grounds provided a new test for an old fight.
In her dissent, Justice Sotomayor raises concerns about what the substitution of coerced speech for religious freedom claims might imply going forward. Can companies put out signs saying “[name of subgroup] not welcome here” but citing religious beliefs that preclude coerced speech? A number of legal analysts I’ve heard in the last few days (not a balanced sample) have noted what appears to be a lack of limiting principle here.
Justice Gorsuch6 concludes the decision as follows:
In this case, Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance. In the past, other States in Barnette, Hurley, and Dale have similarly tested the First Amendment’s boundaries by seeking to compel speech they thought vital at the time. But, as this Court has long held, the opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong. Of course, abiding the Constitution’s commitment to the freedom of speech means all of us will encounter ideas we consider “unattractive,” post, at 38 (opinion of SOTOMAYOR, J.), “misguided, or even hurtful,” Hurley, 515 U. S., at 574. But tolerance, not coercion, is our Nation’s answer. The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands. Because Colorado seeks to deny that promise, the judgment is Reversed. (emphasis mine)
This brings me all the way back to Ballard. For Lori Smith, same-sex marriage is a “matter of major significance” and a step too far. But she says that serving LGBTQ members for non-marriage reasons is fine. So she has a moral objection to the marriages because it runs counter to verses in Genesis. She doesn’t appear to be a literalist on other issues (critics have noted her tattoos). But she says that this is the defining issues so the Court, not wanting to wade in to the nature of belief, must take her at her word.
While I don’t think the ramifications of this decision will be as dire as some others suggest, a freedom of speech claim built on the back of a religious belief claim seems tenuous at best. There will be more legislation addressing this tension going forward and the conservatives on the Supreme Court will continue to privilege unvalidated “religious beliefs” over other general social characteristics. This is simply not the way to work out the tensions that Justice Kennedy identified in Obergefell. We have more work to do.
This case is fascinating. The Ballards were defrauding people by claiming they had special insights as “ascended masters” and had bilked people out of money. The district court had ruled that this fraud was clear as they clearly weren’t what they claimed. The Supreme Court ruled that the district court erred in making a validity claim against the Ballards’ beliefs.
Indiana’s version under then-Governor Mike Pence was a national story for quite a while in 2015.
We often talk about Obergefell as establishing same-sex marriage. It technically eliminated bans on them.
I was very disappointed that this case wasn’t titled Smith v. Colorado as it seems to be a direct refutation of the 1990 decision!
Court documents identified an inquiry from someone named Stewart about a future same-sex wedding. That appears to be a fictitious claim but that fact doesn’t put the decision in jeopardy (although it does make the ADF look bad).