In a chilling development, the Supreme Court has announced that it will hear a case in which an evangelical woman is asserting a religious exemption to discriminate against a protected class of citizens.
The case — involving LGBTQ individuals in Colorado who wish to marry — is already being dubbed “Masterpiece II,” following the 2018 “Masterpiece Cakeshop” case concerning a Colorado baker who declined to bake a cake for a same-sex wedding.
By agreeing to hear the challenge during its next session, the court has signaled a clear intent to allow individuals and businesses to discriminate based on religious belief. The case is being framed, incredibly, as a “free speech” issue, with the precise question being “whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.”
“This is phony,” says Annie Laurie Gaylor, FFRF co-president. “It’s really a religious privilege case dressed up as ‘free speech.’ If religious business owners can discriminate against one protected class, LGBTQ citizens, what’s to keep them from discriminating against Americans based on race, color, national origin or sex? No one should be above the law.”
Not surprisingly, the case is being brought by the extremist Christian nationalist legal outfit, Alliance Defending Freedom.
The owner of 303 Creative, the proposed website design company that would create websites celebrating weddings, claims that creating websites for LGBTQ people who wish to marry “would compromise my Christian witness and tell a story about marriage that contradicts God’s true story of marriage.” This blatant dicrimination violates the anti-discrimination law in Colorado, but the company wants a religious exemption.
Anti-discrimination laws are crucial protections for LGBTQ people, and granting religious exemptions to such laws clearly undermines them because religion is by far the main driver of anti-LGBTQ bigotry.
FFRF calls it bizarre that this claimant has been granted standing, since she has not even opened the wedding business or posted the proposed statement refusing LGBTQ wedding customers that would run afoul of Colorado’s law. The Supreme Court’s decision to ignore this procedural hurdle further suggests that it is willing to bend over backward to grant special privileges to Christian plaintiffs.
In 2018, the high court missed an opportunity to strengthen the U.S. Constitution by declaring that religious bigotry is no justification for discrimination. In that case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, the court considered similar facts but dodged the central issue. The court implausibly declared that an off-hand comment from a civil rights commissioner tainted the case by demonstrating anti-religious animus. Justice Anthony Kennedy, who had a history of stemming the religious crusade against LGBTQ rights, wrote the opinion. Only Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented.
Since Masterpiece was decided, Kennedy and Ginsburg have been replaced by ultraconservatives Brett Kavanaugh and Amy Coney Barrett, leaving little doubt that the court intends to approve of the religiously motivated discrimination.
In recent years, a string of Supreme Court cases has privileged Christianity over other religions, at the expense of marginalized communities around the country. This case seems likely to continue that trend. As FFRF wrote in its amicus brief in the Masterpiece case, in the past the Supreme Court has consistently noted that religion cannot exempt people from general laws, ranging from an 1879 case where a Mormon claimed a religious right to polygamy to a 1990 case where archconservative Justice Antonin Scalia rejected a religious exemption to anti-drug laws. The current court’s supermajority seemingly is willing to sacrifice this sound logic and clear precedent to advance its own agenda, this time under the guise of protecting free speech.
FFRF warns that this is the beginning of the Supreme Court’s campaign to dismantle hard-fought LGBTQ rights, reproductive health care rights, and the wall between state and church. Unless Americans demand that Congress take action to correct the broken federal judiciary, the court seems intent on granting a tiny minority of Christian fundamentalists, evangelicals and nationalists everything they want.
The Freedom From Religion Foundation will continue to work diligently to counter these judicial threats and to defend the American principle of separation between religion and government.
