So, there have been plenty of stories written here about 303 Creative v. Elenis, the pending Supreme Court case about a Colorado web designer who wants to be able to discriminate against same-sex couples requesting marriage sites.
There is, just barely, the kernel of a legitimate legal question here. A better Court might focus exclusively on where the distinction lies between prohibiting discrimination versus compelling speech, and, to some extent, what sort of business activities inherently constitute speech rather than neutral commerce. To give a marginally less fraught comparison, could a web designer refuse a request for a pro-Scientology website, or would that run afoul of laws that prevent discrimination on religious grounds?
Of course, a better Court wouldn’t have taken this case to begin with, because there’s no actual “case or controversy” here. Lorie Smith sued Colorado preemptively under the assumption that her desired conduct — conduct which hasn’t actually occurred — would be illegal. That’s… not the way this is supposed to work. Of course, as we know by now, a lot of things about the current Supreme Court are “not the way this is supposed to work.” So what’s to gain here? Why would the runaway archconservatives in justice robes have taken a sufficient interest in this case to hear it?
To answer that, we have to take a deep dive into legal history, all the way back to… um, 1990, actually. Well, that feels like ancient history at this point, right? Anyway, in 1990, the Court decided a different case, Employment Division v. Smith. In that case, two members of the Native American Church had been working as counselors at a private drug rehab center. They were fired because their employer learned that they had, in the context of religious ritual, ingested peyote, a controlled substance. Consequently, the state of Oregon denied them unemployment benefits. They sued the state on the grounds that they were being denied unemployment on account of their free exercise of religion.
The Supreme Court found in favor of the state of Oregon. The fundamental decision in the case hinged on the idea that the conduct they had engaged in was explicitly criminalized, and that the statute in question was religiously neutral; it didn’t prohibit religious use of peyote, it prohibited all uses of peyote. For awhile, this case was a sore point for people on the left who supported drug decriminalization. The next year, a tiny exception to drug laws was carved out in US v. Boyll, eventually followed by the 1994 amendment to the American Indian Religious Freedom Act, allowing the Native American Church religious use of peyote. Although it’s worth noting that later attempts by the Neo-American Church to acquire a parallel carve-out for LSD and marijuana were rejected as not being “bona fide religious purposes.”
But anyway, for some time now, the people most opposed to how the Court ruled in Employment Division v. Smith aren’t on the left. They’re on the far, far right. Their argument — such as it is — is that even neutral laws that discriminate against or disadvantage people on religious grounds (where, here, they mean “extremist Christianity”) constitute an unfair burden on religious practice. This argument has been lurking in minority legal circles forever, but it got a lot worse during COVID. In an effort to combat the pandemic, Andrew Cuomo issued an executive order in October 2020, limiting the number of people who could be simultaneously present in venues in designed “orange” and “red” high transmission zones. The Catholic Church sued, arguing that this interfered with religious practice by limiting attendance at church services. In November of that year, in Roman Catholic Diocese of Brooklyn v. Cuomo, the Court agreed, 5-4. And the push on the right to overturn Employment Division entirely was on!
Back in 1990, even Scalia thought that argument was hot nonsense. “To permit this”, he wrote for the majority opinion, “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” But, of course, that’s the goal for the Christofascists… so long as it’s their religious belief, at least.
If we get a narrow ruling here, that will likely be bad news for the LGBT community. But the danger scenario is a decision that overthrows Employment Division. In theory, we’d go back to the Sherbert standard, which demanded that any government action that burdens religious conduct must support a “compelling state interest” and be “narrowly tailored”. That’s already a minefield of awful, but there’s no real way to know what a worst-case ruling would look like. This Court is not good at respecting boundaries, especially when breaking them favors their chosen people.
For more information about Al Smith and Employment Division v. Smith, read this ACLU bio or this summary from MTSU.
To see what the other side thinks about Employment Division, here’s an Emory University essay advocating it’s demise.