In the United States, LGBT + rights challenged by a very religious web designer

The case is called «303 Creative LLC. v. Elenis”. As Masterpiece Cakeshop v. Colorado Civil Rights Commission, decided in 2018, it takes place in the state of Colorado, in the western United States, and therefore involves the Colorado Anti-Discrimination Act (CADA). Above all, it could continue the work of undermining the rights of LGBT + people in the country.

In 2018, the Supreme Court sided by pastry chef Jack Phillips, a Christian who refused to design a cake for a wedding between two men. The couple had taken the case to court, arguing that the refusal constituted discrimination prohibited by the EACH.

According to the latter, “constitutes a discriminatory practice and an illegal act the fact for a person, directly or indirectly, to refuse, prevent or deny an individual or a group, because of a disability, race, creed , color, sex, sexual orientation, marital status, origin or descent, the full and equal enjoyment of the goods, services, facilities, privileges, advantages or amenities of a public place”.

After a succession of defeats in the administrative court and on appealthe case had reached the Supreme Court, which found a violation of the freedom of religious exercise clause of the first amendment.

After pastry, web design

Bis repeated. Lorie Smith, who runs a one-man business called 303 Creative, is also a devout Christian. Webdesigner, she designs various and varied sites. And, because of her faith, she wished to display on her own website that she refused to design a site whose theme would contradict her religious opinions – in particular if it is intended to celebrate the marriage of a homosexual couple.

Aware that the laws in force in Colorado could be unfavorable to her, she went to court on the grounds that the said legislation would be unconstitutional, as contrary to the clause guaranteeing freedom of expression (the Free Speech Clause). According to her, creating a site with content at odds with her convictions is part of the “imposed discourse” («compelled speech»), prohibited by this clause.

Defeated at first instance and then on appeal, Lorie Smith however managed to bring her case before the highest court in the United States, which will deliver its judgment by the end of June-beginning of July 2023.

Advantage Lorie Smith

Despite the lower courts proving her wrong, Lorie Smith, defended by the very conservative Alliance Defending Freedomseems to have every chance before the Supreme Court: the other jurisdictions have, so far, delivered a reading that has little chance of being retained by six of the nine judges who sit there.

Although relying substantially on the judgment Fulton v. City of Philadelphia (2021), the judges of the court of appeal have thus chosen an interpretation that runs counter to that of the Supreme Court.

In 2021, the nine judges of the highest instance of the federal judiciary unanimously recognized that the city of Philadelphia had breached its obligation of impartiality by terminating the contract binding it to Catholic social services, which refused adoption. same-sex married couples.

Chief Justice of the Supreme Court, John Robertshad thus estimated that if the question of the number of host families available was certainly important, the city had not been able to show how a religious exception granted to the Catholic agency could put it in danger.

Today, two judges from the 10e circuit considered that the case of Lorie Smith did not fit into this situationher services as a web designer being “by definition, unique and therefore unavailable elsewhere”… An interpretation that the chief judge of the Court of Appeal of 10e circuit, Timothy Tymkovich, who personally considers that“ensuring access to the unique artistic product of a particular person – as the majority argues – is not a compelling state interest”.

Judgments in the sights of the Court

For the judge appointed in 2003 by President George W. Bush, the compelled speech must give rise to a strict examination of constitutionality. As for the 303 Creative case, the CADA law could not survive it, the State having to prosecute a “compelling interest” and the law should be closely tailored to the pursuit of that interest, while constituting the least restrictive means possible. However, the supply of a good or a commercial service could not constitute a compelling interest justifying the violation of the clause on the free exercise of religion.

In addition, the Supreme Court has become particularly hostile to case law Employment Division Department of Human Resources of Oregon v. Smith (1990), according to which neutral legislation of general application cannot constitute a violation of the freedom of religious exercise clause contained in the First Amendment.

Although it was not overturned following the Fulton judgment, the judges of the Court made no secret of their desire to “to correct” what now appears as a court decision going against the “original meaning” of the first amendment: the judges Samuel Alito, Clarence Thomas and Neil Gorsuch thus clearly called to get rid of the text written over thirty years ago by Judge Antonin Scalia.

The growing weight of
religious beliefs

One is therefore entitled to think that the 303 Creative LLC. v. Elenis will be in line with the court decisions rendered this year: Carson v. Makin, Shurtleff v. Boston or Kennedy v. Bremerton School District have all favored a greater expression of religious beliefs, at the risk of breaking “the wall of separation between Church and State” –although there is debate on the subject–, to use Thomas Jefferson’s formula, and to be able to take advantage of one’s religious beliefs to discriminate against others because of their sexual orientation and/or gender identity.

Finally, the 303 Creative case could deal the final blow to the historic Smith jurisprudence. What would it be replaced by? Nobody knows. Judge Amy Coney Barrett, joined by the now retired Stephen Breyer, had expressed, in June 2021, her skepticism about the need to end the Smith judgment: “There would be a number of issues to resolve if the Smith judgment were overturned”she noted during the Fulton affair.

A case that comes at a time when many states – starting with Texas and Florida – are waging a particularly intense culture war over LGBT + issues.

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