The U.S. Supreme Court’s June 30 decision in 303 Creative LLC v. Elenis protected the rights of a website designer against being forced by Colorado to design websites for “same-sex marriages.” The most vocal media reaction to the decision has been hostile. Catholics should be aware of “the rest of the story.”
The decision plugs a leak in Obergefell. When a 5-4 divided Supreme Court imposed “same-sex marriage” on the United States in 2015 in Obergefell v. Hodges, the Court went out of its way to claim that its invention of a Constitutional “right” did not delegitimize those who disagreed:
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. (Obergefell v. Hodges, p. 27 of Supreme Court slip opinion).
Ask Jack Phillips, the Colorado baker who refused to make a “same-sex” wedding cake and who should get a “frequent customer” card for bringing cases to the Supreme Court, if he believes Justice Anthony Kennedy.
Justice Clarence Thomas, in his dissenting opinion in Obergefell, presciently recognized that the newly invented “right” and the right of free exercise of religion would necessarily collide:
It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples. (Obergefell, slip opinion, Thomas dissent, p. 15).
Justice Kennedy’s weasel words are that opponents of his decision “may continue to advocate, with utmost, sincere conviction” their opposition to “same-sex marriage.” He claims this is true of those who oppose it on religious as well as non-religious grounds.
But what does “advocate” and have a “sincere conviction” mean? Does it mean that you can believe “same-sex marriage” is wrong? That you can even say that (though you might get “cancelled”)? Or that you can actually act on those convictions in terms of what you do or do not do?
Kennedy never told us that.
Now the First Amendment addresses religious freedom. It specifically guarantees the right to “free exercise of religion,” i.e., to do religion. It does not speak of freedom of belief. If it did, you can believe whatever you want, just don’t do anything about it. Keep it to yourself.
That’s not what the First Amendment protects.
Yes, granted there is also a whole strand of jurisprudence dealing with what one can and cannot do in the name of religious freedom, and that this has been a controversial area for at least 34 years (since Employment Division v. Smith) but the fundamental Constitutional perspective is that exercise of religious belief is protected. The Court, particularly in recent years, has finally gotten around to protecting that more extensively, which has no small number of secularists in a lather.
Colorado has been particularly insistent on brooking no actionable public dissent to “same-sex marriage.” Thus, when Jack Phillips declined to make a wedding cake for a “same-sex marriage,” Colorado’s administrative state punished him.
Phillips appealed to the Supreme Court. With Anthony Kennedy still on the bench, the Court had a conundrum: squaring Kennedy’s nominal commitment to the legitimacy of disagreement with “same-sex marriage” with his earlier invention of a quasi-Constitutional objection in Romer v. Evans that not treating homosexuals as a “protected class” constituted unconstitutional “disfavoring” (Romer v. Evans, 517 U.S. 620).
Luckily, Colorado saved Kennedy’s bacon. The Colorado Civil Rights Commission denigrated Phillips’ religious convictions. The Court, in Masterpiece Cakeshop v. Colorado Civil Rights Commission used those slurs to vacate the judgment and kick the can down the road. The fact that Phillips has since been pursued legally in Colorado suggests the 2018 decision was just a temporary palliative.
303 Creative, with Kennedy off the bench, finally answered this problem clearly: freedom of speech does not compel somebody to use their creative talents to participate in celebration of a “same-sex wedding” contrary to their convictions.
Note, however, the right on which the Court hangs its ruling. The Court decided this case on free speech, not free exercise of religion grounds. In one sense, that makes sense: there may be non-religious people who object to being forced to lend their labors to “same-sex marriage” celebrations. Free speech would cover them.
On the other hand, what about those whose work is less “creative” but who still harbor religious objections to participation in such events? Lorie Smith is arguably “creative” in tailoring wedding celebration websites to individual clients. But, as oral argument in Masterpiece showed, Colorado contended cake decorators are hardly in the same “speech” or even “creative” categories.
What about less “creative” people? If a church owns a hall it rents out for weddings, can it be compelled to make the facility available to a “same-sex marriage?” While the Court has been liberal in interpreting the nexus between a church and its quasi-religious/quasi-social institutions (e.g., employees in a parish school), is a rental hall part of the “religious mission” of a church? And what about hall owners that have no connection to a church but their faith objects to celebrating such events? America is full of Protestant Christians with the sincere conviction “Jesus Christ is my personal Lord and Savior” who holds them to particular norms. In their case, is hall rental “speech?” “Religious freedom?” Or, like public accommodations law which denied landlords the right to refuse rental to unmarried cohabitants, just another business?
In other words, while the Court has been busy developing a more robust jurisprudence of religious freedom, will it only fit a certain elite?
Compare that against all the dressmakers, singers, and others who very visibly said they would refuse services for the Trump inauguration, a stance for which they were lauded, not sued.
It is possible to envision that, like the now-fallen Roe v. Wade, Obergefell will spawn endless legal grist in all these permutations. Justice Scalia criticized Roe for having turned the federal courts into national overseers of abortion policy: every attempt to regulate abortion in the least way was subject to what was essentially prolonged judicial preclearance. Obergefell may augur the same for how society deals with “same-sex marriage.” It may arguably become a surrogate place for litigating just how far religious convictions can find expression in the public square. Just as abortion advocates insist that any social policy less than full-throated social acceptance and subsidization of prenatal killing is “discriminatory,” so “same-sex marriage” proponents may push a similar narrative brooking no dissent. The difference is the former are now bereft of a Constitutional perch while, for the latter, Obergefell is still controlling and buttressed by the “Respect for Marriage Act of 2022” (PL 117-228).
One also wonders whether, at some future date when the Court tires of the referee role, a future justice will scold “same-sex marriage” dissenters, like Kennedy did in Planned Parenthood v. Casey, for not acquiescing in the Court’s ruling and recognizing its “right.”
For now, the Court has laid down an important marker protecting religious persons, at least to some degree. At the same time, as Jack Phillips’ situation demonstrates, advocates of “same-sex marriage” will not relent on looking for ways to promote their view. That’s apparent already in an op-ed piece in the July 1 New York Times, where UC Davis law professor Aaron Tang proposes his “sensible compromise” – anybody who declines to serve a “same-sex marriage” services seeker may do so provided he makes a referral to a provider who will. This is not unlike the so-called “compromise” pushed by Ontario’s professional medical association, where doctors who won’t kill you at your request are expected to send you to one who will. These truncated versions of “conscience” subordinate it to brooking no public dissent from official policy.
Its advocates will no doubt claim it represents a “balancing” of “interests.” That’s one way of looking at it. Another is that while Caesar is officially agnostic, he’ll tolerate the things of God as long as his are also given their due. There are many gods in his Agora—but know which ones not to shortchange. Unlike ancient Caesar, today’s may not deify himself but he certainly apotheosizes his morality. You can offer all the incense you want to your God… provided at least a pinch is burned publicly in worship of woke. Absent that allegiance, you might be an insurrectionist, certainly a disturber of democracy.
Ever since Vatican II, Catholics have been reminded that there is a universal call to holiness, a call for the laity to bear public witness to their faith, and an emphasis that moral integrity must suffuse the entirety of a person’s life. Religious convictions must not be put under a bushel basket or hidden in a sacristy. They need to shine forth on the public square: the Sunday and workaday Catholic must not be different people.
Issues like those raised by 303 Creative may be precisely where that rubber meets the road.
If you value the news and views Catholic World Report provides, please consider donating to support our efforts. Your contribution will help us continue to make CWR available to all readers worldwide for free, without a subscription. Thank you for your generosity!
Click here for more information on donating to CWR. Click here to sign up for our newsletter.
Do you see just how complicated life becomes when man usurps God’s priveleged place in Creation and tries to impose man’s invented laws on all others?
I read this piece and, if it were given as a handout in a moral theology course and would serve as the basis for my final exam, I’d fail miserably trying to explicate its essence. Not that its content is in error but this entire line of thinking wherein man attempts to play God unnecessarily complicates Divine law and the right order of creation.
Man certainly knows how to muck things up. It’s no different from my impression when I first viewed Hieronymous Bosch’s famous painting at the Prado: “What a damn complicated mess.”
The Truth is simple and yet profound, the desire to engage in a demeaning act of any nature, does not change the nature of the act.
The only question one needs to ask is what is the justification and thus redeeming value, in tolerating, accommodating, justifying, celebrating and mandating sexual acts, that regardless of the actors, or the actor’s desires, including if the actors be a man and woman, united in marriage as husband and wife, are physically,psychologically, emotionally and spiritually harmful, and thus being devoid of authentic Love, deny the inherent Dignity of every beloved son and daughter? What is the justification and redeeming value of tolerating, accommodating, justifying, celebrating, and mandating any relationship that is not Holy due to the fact that it leads to tolerating, accommodating, justifying, celebrating, and mandating acts that demean our inherent Dignity and are thus physically, psychologically, emotionally, and spiritually harmful?
By whose authority can The State mandate that we deny The Sanctity of the marital act, within The Sacrament Of Holy Matrimony, which is Life-affirming and Life-sustaining, and can only be consummated between a man and woman, united in Marriage as husband and wife and discriminate against the essence of being a beloved son or daughter, brother or sister, husband or wife, father or mother?
A “compromise” is to be able to refuse to help them yourself, but be forced to provide a name of someone who WILL??? No, I don’t think so. I have always understood that Catholic belief said that assisting another person with their sin is to be culpable of the same sin yourself. I can’t imagine “assisting” someone to find help to get a web site made for threesomes, find a doctor to mutilate their minor child who believes themselves to be “trans” or recommend an abortion mill, or anything else like this.The crazed liberals who presently run our nation should be prepared to have many Americans say no to such a “compromise” if they go down this road, no matter how much foot stamping they do, what illicit and amoral “laws” they pass, or how many threats they make. As for the Canadians, they have long been known to lack a spine. Disgusting.
This article supposes the case was valid. It wasn’t. The evidence is clear that it was made up. It’s most likely the decision will be rendered null and void.
That said, no on should ever be forced or required to do business with any entity, be it person or organization, even if they simply don’t want to. A business owner should be able to decide, even on a whim, if they don’t want to do business with another. Period. No reason need be given.
If I want to buy a candy bar and the corner grocer doesn’t want to sell it to me, so be it. I’ll go elsewhere. There are lots of places to buy a candy bar. The same with a “wedding” cake or website.
The whole issue is ludicrous. Unfortunately the zeitgeist wrongly thinks otherwise.
The 303 Creative case was not “made up”. It is known as a “pre-enforcement challenge”. These types of cases are relatively rare in the general run of litigation, as courts are generally reluctant to take cases that involve claims of theoretical future harm rather than claims of actual harm.
However, U.S. courts have long carved out as exceptions those cases involving important constitutional claims, and in particular First Amendment claims, on which the 303 Creative case was based. In this case, the plaintiff had a reasonable fear that the State of Colorado would enforce an existing state law against her. That, she argued, would chill Constitutionally-protected speech. She was able to convince the lower appeals court that she had a reasonable fear of enforcement that would prevent her from engaging in an action (so-called “expressive conduct”) that her First Amendment right should protect, which is what enabled her case to move forward. Therefore, arguments that the case is somehow invalid since it did not include demonstration of actual harm fall by the wayside.
Our Constitution does not serve to secure and protect the equality of all sexual acts and sexual relationships, In fact, by claiming that in order to be validly married, it is no longer necessary for a man and woman to have both the ability and desire to exist in relationship as husband and wife, The Supreme Court, by removing the necessary elements of a valid marriage contract, invalidated the validly of a valid marriage contract, as now, in order to be married, it no longer is necessary for a man and woman to have the ability and desire to exist in relationship as husband and wife, and any relationship can be called a “marriage” if one so desires.
JSB. you conclude something interesting… ” A business owner should be able to decide, even on a whim, if they don’t want to do business with another. Period. No reason need be given”. When I was a child trying to by an icecream cone, the owner refused me because I was too young and too short. Because I was too young to seek out a competitor Busters was my only choice. Buyer beware?
JSB
You are incorrect.
“That said, no on should ever be forced or required to do business with any entity, be it person or organization, even if they simply don’t want to. A business owner should be able to decide, even on a whim, if they don’t want to do business with another. Period. No reason need be given.”
How about an attorney who refuses to take a case? What if that attorney, in a way, “works with” others to make it impossible for a plaintiff to find legal assistance despite a desperate need and a just cause?
The fact is that there isn’t such a thing as freedom of contract/enterprise as currently understood.
The reason why an employer does business is to SERVE CUSTOMERS – and also employees – in order to make a living. To be permitted to discriminate for malicious reasons opens the door to serious wrongs.
I know that there is a “constructive conspiracy” between employers to deprive a designated “pariah” of employment. That is a very serious wrong.
In fact it is a conspiracy involving attempted murder. So long as it is practically impossible for a person to obtain his necessities without payment, then conspiring to deprive him of an income amounts to “attempted starvation.”
However, it is highly doubtful that the police will do anything about the above. Refusal to do business is by some unknown “mysterious designation” a civil matter, and, due to corruption, it is almost practically impossible (but contrary to case “law” and justice) to extend that to employment. But the fact is that trying to take anything without paying for it is a criminal matter.
This is how TPTB “win.” A person can go to jail for taking due to necessity, but no employer can go to jail for defrauding a laborer of his wages by refusing to hire him.
The wrongs above should create mass protests, but it is likely that those who are directly affected either don’t know about the issue or don’t have the will to fight. And it would take numbers to make a big difference. So long as there is extremely low (or no) solidarity, then evil people will win.
No one can be forced to celebrate the engaging in or affirmation of any sexual acts, that regardless of the actors or the actors desires, even if the actors are a man and woman, united in marriage as husband and wife, that violate a tenet of one’s Faith and Morals because such behavior is physically, psychologically, emotionally and spiritually demeaning and thus such behavior is devoid of Love.
There is no correlation between serving in a capacity that discriminates due to someone’s ethnicity, which is unjust, and discriminating between appropriate and inappropriate sexual behavior, due to Love.
A society that caters/forces adherence to the whims of every nook and cranny person in it will not survive in the long term; due to the burden imposed.
Flip/flop, flip/flop. We’re on bottom/ you’re on top. Flip/flop, flip/ flop. Will it ever stop? Democracy at work?