The "Respect for Marriage Act" will soon become the law of the land despite serious concerns over the act’s failure to shield people who believe that marriage is between one man and one woman from reprisal. While our elected leaders in Washington may be indifferent to this real threat to individual liberty, all is not lost. Americans can count on this Supreme Court.
Monday morning the court held oral argument in 303 Creative v. Elenis, a case that asks if the Constitution protects the right to speak one’s truth on the nature of marriage, even if doing so is "unpopular" with the progressive elite.
In her opening remarks, Kristen Waggoner, president of the Alliance Defending Freedom and counsel for Lorie Smith, the owner of 303 Creative, told justices that Smith is not asking the court to create new law, just to enforce it. "No one on any side of any debate should be forced to create a message."
Some background: Smith is a Christian website designer in Colorado who wants to expand her business to create custom wedding websites. She creates web designs for anyone, but doesn’t create all messages. More to the point, Smith does not want to create websites for same-sex weddings. Before offering wedding website design services, Smith wanted assurances that she could do so without impunity. Concerned about the Colorado Anti-Discrimination Act (CADA), Colorado’s expansive public accommodation law, Smith filed a pre-enforcement lawsuit in federal court.
CADA bars businesses that are open to the public from discriminating against people based on sexual orientation or announcing an intent to do so. It infamously targeted another Coloradan, Jack Phillips, a Christian baker and owner of Masterpiece Cakeshop in Lakewood, a suburb of Denver. After being found in violation of CADA for refusing to create a wedding cake for a same-sex wedding, Phillips challenged the constitutionality of CADA in federal court. The Supreme Court ruled in Phillips’s favor back in 2018, based on the overwhelming hostility of the state’s civil-rights commission toward his religious beliefs. The court did not reach the issue now squarely before it.
When the Supreme Court created a constitutional right to same-sex marriage back in 2015, Justice Anthony Kennedy, writing for the court’s majority, stressed that "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."
A recent amendment to the "Respect for Marriage Act" uses similar language: "Diverse beliefs about the role of gender in marriage are held by reasonable and sincere people based on decent and honorable religious or philosophical premises. Therefore, Congress affirms that such people and their diverse beliefs are due proper respect."
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Surely "proper" protection and respect includes the legal shield of the First Amendment’s free speech guarantee for people and organizations who do not want to use their creative talents to promote anything at odds with their sincere belief in traditional marriage as between a man and a woman.
The Biden administration – at the ready to rubber stamp the Respect for Marriage Act – has sided with the state of Colorado in 303 Creative. Deputy Solicitor General Brian Fletcher described compelling Smith’s company to provide website services for same-sex weddings would only impose an "incidental" burden on Smith’s free-speech rights. Justice Brett Kavanaugh seemed unpersuaded.
Although Smith raised claims under the First Amendment’s free exercise clause, the Court has limited its review to Smith’s free speech claims. Becket Law, the country’s leading religious freedom law firm, urges the court not to ignore the religious nature of Smith’s objection. Its amicus brief argues that the history and tradition of the First Amendment demand that religious speech like Smith’s receive particular protection.
"Cultural winds may shift, but the compelled speech doctrine may not," said Waggoner powerfully on rebuttal. If CADA is allowed to be used as a cudgel against Coloradans with traditional religious views on marriage, there is little preventing the federal government from doing the same with the Respect for Marriage Act. A clear victory for Smith and 303 Creative will prevent the misuse of these laws to impose ideological conformity. And it will guarantee the "proper protection" promised by the Constitution.
