Specifically, 303 Creative addressed whether a Colorado anti-discrimination law can require a designer who believes marriage is only between a man and a woman to create a wedding website for a same-sex couple.

Two years ago, the 10th Circuit Court of Appeals affirmed that the answer was "yes."

But on June 30, 2023, a bitterly divided Supreme Court reversed that judgment, holding 6-3 that the free speech clause of the First Amendment prohibited state officials from requiring the designer to create a website that communicates a message with which she disagrees.

As a professor of law who pays particular attention to First Amendment issues involving freedom of religion and speech, I see the case highlighting the tension between two competing fundamental interests - ones that clash routinely in 21st century America.

Compelled speech?

The underlying dispute involves graphic artist Lorie Smith, the founder and owner of a studio called 303 Creative.

According to court documents, Smith will work with clients of any sexual orientation.

However, she will not create content that goes against her religious beliefs, such as "that marriage is a union between one man and one woman."

Conflict arose when Smith challenged Colorado's Anti-Discrimination Act, under which it is discriminatory and illegal to refuse services to someone based on "disability, race, creed, colour, sex, sexual orientation, marital status, national origin or ancestry."

In 2016, Smith unsuccessfully sued the members of the state's Civil Rights Commission and Colorado's attorney general.

She and her attorneys argued that creating a website counts as an act of speech, and so being required to prepare a same-sex wedding website would violate her First Amendment rights: The law would force her to speak, legally referred to as "compelled speech."

Smith and her attorneys also claimed that requiring her to create a website would violate her First Amendment right to the free exercise of religion.

The federal trial court in Colorado rejected Smith's attempt to block enforcement of the anti-discrimination law in 2019.

When she appealed, a split 10th Circuit affirmed that Smith could not refuse to create websites for same-sex weddings, even if it would have gone against her beliefs.

In the court's opinion, protecting diverse viewpoints was a "good in and of itself," but combating discrimination "is, like individual autonomy, ‘essential' to our democratic ideals."

In a lengthy dissent, the chief judge of the 10th Circuit focused on compelled speech. He criticized the panel for taking "the remarkable - and novel - stance that the government may force Ms. Smith to produce messages that violate her conscience."

SCOTUS speaks

The Supreme Court agreed to hear Smith's case but limited the issue to free speech, sidestepping the dispute over the free exercise of religion.

The question before the court was "whether applying a public accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment."

Writing for the majority, Justice Neil Gorsuch noted that "First Amendment protections belong to all, not just to speakers whose motives the government finds worthy."

Gorsuch reviewed the Supreme Court's cases protecting the rights of individuals not to express themselves.

In 1943's West Virginia Board of Education v. Barnette, for example, the court declared that public officials could not compel students who were Jehovah's Witnesses to salute the flag, because doing so violated their religious beliefs.

While noting the "vital role public accommodations laws play in realizing the civil rights of all Americans," Gorsuch reasoned that Colorado could not "force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance."

Further, Gorsuch harshly criticized the dissenting justices' argument that Colorado's law focused on business owners' conduct, not speech, contending that the dissent sidesteps a key question: whether a state can "force someone who provides her own expressive services to abandon her conscience and speak its preferred message instead?"

Justice Sonia Sotomayor, whose dissent was joined by Justice Elena Kagan and Justice Ketanji Brown Jackson, lamented the majority's decision as a time when there is "backlash to the movement for liberty and equality for gender and sexual minorities."

Sotomayor then argued that under Colorado's anti-discrimination law, Smith's "freedom of speech is not abridged in any meaningful sense, factual or legal." If Smith wants to "advocate the idea that same-sex marriage betrays God's laws," Sotomayor made it clear that she can.

Sotomayor went on to decry the ruling for symbolically "mark(ing) gays and lesbians for second-class status." Denying services to same-sex couples "reminds LGBT people of a painful feeling that they know all too well," she wrote. "There are some public places where they can be themselves, and some where they cannot."

Questions ahead

To see how 303 Creative's impact plays out, it is worth closely watching the parts of the U.S. with anti-discrimination statutes in place.

Justice Gorsuch noted that about half of all states have laws like Colorado's that "expressly prohibit discrimination based on sexual orientation."

More specifically, 22 states, plus the Virgin Islands and Washington, D.C., offer various forms of protections for LGBTQ+ individuals - including retail stories, restaurants, parks, hotels, doctors' offices and banks.

I believe 303 Creative presents a challenge for society to come to grips with the tension between two fundamental interests.

One is the Supreme Court's affirmation of Smith's key argument: that requiring her to prepare websites that go against her religious beliefs would violate her First Amendment right to freedom of speech.

The other is the interest of same-sex couples in hiring the services they wish - and simply to be treated equally in the eyes of the law, on par with any other potential customers.

Ensuring both freedom of speech and civil rights requires good-faith efforts at respect - and respect is a two-way street.

However, exactly what this looks like will likely be the cause of more litigation to come.

• Charles J. Russo is Joseph Panzer Chair in Education in the School of Education and Health Sciences and Research Professor of Law, University of Dayton.
• First published in The Conversation. Reproduced with permission.

The case, Dobbs v. Jackson Women's Health Organization, involves a Mississippi law that bans abortion starting at the 15th week of pregnancy.

Significantly, the statute draws the line before fetal viability—the point at which survival is possible outside the womb.

The Court has previously held that before viability, "the state's interests are not strong enough to support a prohibition of abortion or substantial obstacle to the woman's effective right to elect the procedure."

To uphold Mississippi's law, the Court would have to rewrite the rules—perhaps just the opportunity it needs to overturn Roe altogether.

If that happens, it will represent the culmination of decades of work by anti-abortion-rights activists.

But for those activists, gutting Roe would be just the beginning.

Ever since Roe, abortion-rights foes and their Republican allies have been asking the Court to reverse course—to acknowledge that the Constitution has nothing whatsoever to say about abortion, either in favor of or against it.

Antonin Scalia, the Supreme Court justice arguably most beloved by conservatives, routinely stated that the Constitution is silent on abortion.

Republicans have railed against the Court's judicial activism in Roe, insisting that the justices robbed the American people of the opportunity to decide the abortion issue for themselves.

In this account, Roe did not just destroy valuable opportunities for compromise on abortion; the decision did fundamental damage to America's democratic principles, removing one of the most controversial issues from representative legislatures and resolving it by judicial fiat.

But within the anti-abortion-rights movement, there is not so much talk about democracy anymore.

Now some abortion-rights opponents are quite literally looking for a Roe of their own, asking the Court to recognize fetal rights under the Fourteenth Amendment.

Remember that overturning Roe wouldn't make abortion illegal; it would mean that states could set their own abortion limits, which would no longer be subject to constitutional review.

That will never be enough for anti-abortion-rights activists, though.

In the conservative magazine First Things, John Finnis, a professor emeritus at the University of Notre Dame, recently made an argument that could provide the framework an anti-abortion-rights Supreme Court could use to outlaw abortion across the country: that the legislators who wrote the Fourteenth Amendment viewed unborn children as persons.

If the Constitution recognizes fetal personhood, then unborn children would have the right to equal protection under and due process of the law.

Abortion would be unconstitutional in New York as well as in Alabama.

Other leading anti-abortion-rights scholars have made the same argument.

Finnis's article has provoked debate across the ideological spectrum.

The conservative attorney Ed Whelan has taken issue with the substance of Finnis's claim, suggesting that unless the anti-abortion-rights movement first wins over public opinion, Finnis's approach will backfire.

Progressives have been far harsher, unsurprisingly.

Writing in The New York Times, the columnist Michelle Goldberg denounced what she calls an authoritarian turn in anti-abortion-rights advocacy—one more sign that the GOP has changed fundamentally in the post-Trump era.

The abortion debate has never been about just Roe—and it's never been about letting a popular majority have a say.

What's new is that this argument now meets a receptive Supreme Court for the first time in more than a generation. Continue reading

The Attorney-General has asked the court to hear its appeal against a Court of Appeal decision that the "family values" advocacy and education group qualifies for charitable status.

Family First was among many groups affected in a review of charities. Registration as a charity can have benefits including tax advantages and eligibility for funding.

The High Court decided it did not qualify but the Court of Appeal decided it did. Read more

Judge Amy Coney Barrett is reportedly the most likely presidential nominee for the role.

Appointed a federal judge in 2017, Barrett was a professor at Notre Dame law school until her nomination was confirmed.

As a nominee to the federal bench, Barrett was questioned by Democratic senators on how her Catholic faith would influence her decisions as a judge on cases of abortion and same-sex marriage.

During confirmation hearings, Senator Diane Feinstein said "the conclusion one draws is that the dogma lives loudly within you. And that's of concern."

"You're controversial because many of us that have lived our lives as women really recognize the value of finally being able to control our reproductive systems."

Barrett insisted she would uphold the law of the land.

Pro-life groups hailed Barrett's 2017 appointment to the bench.

Barrett is reportedly a member of the People of Praise charismatic community, which was criticized as a "cult" during her 2017 confirmation hearings.

Bishop Peter Smith said in 2018 there is nothing unusual about the group.

"We're a lay movement in the Church," Smith explained. "There are plenty of these. We continue to try and live out life and our calling as Catholics, as baptized Christians, in this particular way, as other people do in other callings or ways that God may lead them into the Church."

The country's wait for Trump's decision about the new US Supreme Court nominee may not be long.

".@GOP We were put in this position of power and importance to make decisions for the people who so proudly elected us, the most important of which has long been considered to be the selection of United States Supreme Court Justices. We have this obligation, without delay!" Trump tweeted on Saturday.

Choosing her replacement in a hurry is the opposite of what Ginsburg wanted.

"My most fervent wish is that I will not be replaced until a new president is installed." NPR reported, hinting Ginsburg wanted her seat left vacant until 2025 if Trump is re-elected in November.

Ginsburg was the architect of the legal fight for women's rights in the 1970s, subsequently serving 27 years on the nation's highest court.

Former President George W. Bush acknowledged Ginsburg "dedicated many of her 87 remarkable years to the pursuit of justice and equality, and she inspired more than one generation of women and girls..."

Hillary Clinton also tweeted: "Justice Ginsburg paved the way for so many women, including me. There will never be another like her. Thank you RBG."

Whether he selects Barrett, Trump's Supreme Court nomination has become a matter of political controversy.

Republican Senate Majority Leader Mitch McConnell pledged a Trump nominee will be voted on for confirmation by the Senate, despite there being only seven weeks until the election.

Democratic leaders are pushing back, noting McConnell's refusal to consider President Obama's Supreme Court nominee seven months before the 2016 presidential contest.

Source

• Catholic News Agency
• Christian Post
• NPR
• The Australian
• Image: Mediaite

Lead Justice Jotham Tumwesigye said it was "unfair" for the parents of the woman to be asked to refund the bride price after years of marriage.

He said it was unlikely they would have kept the property that had changed hands.

The court's ruling will likely see men pay smaller bride prices, made up of things like cattle, cars, money and appliances.

Critics have said the tradition of paying a bride price can trap women in abusive marriages, as women want to protect their families who cannot repay the groom.

The bride price tradition has also been seen as encouraging too many early marriages.

Continue reading

The court said such prayers go against freedom of religion and conscience, as laid out in the Canadian Charter of Rights and Freedom and the Quebec Charter.

In a unanimous decision and in the name of neutrality of state, all nine judges agreed that prayers should not be allowed anymore.

The case concerned the city of Saguenay in Quebec, but the Supreme Court decision extends to all Canadian towns and cities.

Major cities, including Ottawa and Calgary, said they would stop saying prayers while they studied the impact of the court ruling.

Continue reading

The editorial boards of America magazine, the National Catholic Register, the National Catholic Reporter and Our Sunday Visitor issued the statement.

The editorial urges readers and "the whole US Catholic community and all people of faith to stand with us and say, ‘Capital punishment must end'."

The statement was prompted by an imminent Supreme Court hearing on the legality of certain drug combinations that death penalty opponents say constitute cruel and unusual punishment.

Continue reading

The Charities Registration Board had sought to deregister Family First as a charity, in the wake of the recent same-sex marriage debate.

Family First appealed to the High Court, but a hearing has been on hold until a decision on the Greenpeace case.

Family First NZ director Bob McCoskrie said part of the problem has been the subjective interpretation of the definition of a charity.

"But many groups involved in public issues will have a political involvement when politicians are changing laws and introducing policy that affects the supporters and focus of the charity concerned.

"It is right that charities should be able to speak in to the debates."

Family First has instructed their lawyers to immediately apply to the Charities Board to drop the deregistration action against Family First NZ, or to bring the hearing forward so the matter can be resolved immediately.

Continue reading

Archbishop Cordileone of San Francisco is the chairman of the US bishops' Subcommittee for the Promotion and Defense of Marriage. As the Supreme Court on Tuesday and Wednesday heard arguments in two cases regarding same-sex "marriage," the archbishop is at the forefront of the Church's battle to defend marriage against this latest, and more "extreme" assault.

The archbishop was in Washington on Tuesday to lead the prayer for the first national March for Marriage, which ended precisely at the Supreme Court.

ZENIT spoke with the archbishop by phone on the vigil of the march.

ZENIT: Recent polls report that a slight majority of Americans favor same-sex "marriage," but of course polls are only worth so much. What is your view? Is this battle lost at the level of culture, both here at home and internationally?

Archbishop Cordileone: We've been hearing for 10 years that public opinion has shifted and that the majority of Americans favor legalizing same-sex "marriage," but until the last election the traditional concept of marriage has won out every time the people have been able to vote on it. And even now, this last election may indicate some shifting of opinion, but there was another poll that was done the day of, or the day after the election, which indicated that 60% of Americans still favor the traditional concept of marriage. It always depends on how the question is phrased. So, I think that when people understand what marriage really is, what its true purposes are — and that it's not something that's discriminatory, that they come around to appreciate it more. Continue reading

Sources

• Zenit
• Image: San Francisco Chronicle

For years, of course, American leadership has been dominated by white Anglo-Saxon protestants. According to the Times' chart, there was not a non-Protestant or non-white Speaker of the House until 1961. The Supreme Court was dominated by white Protestants until 1994, when for the first time five of the nine justices were non-Protestant or non-white. And while there have been candidates from various backgrounds (namely Catholic) for president and vice president for decades, the number of non-whites or non-Protestants who've actually held those two jobs are still very few: Charles Curtis, Herbert Hoover's vice president, was part Native American; John F. Kennedy was Catholic; Vice President Joe Biden is Catholic; and Barack Obama is African American. (Notably, this is the first year since 1964 that there has been a non-white or non-Protestant on the Republican party ticket.)

Some of these numbers, of course, are simply reflective of politics. George W. Bush, for instance, named three Supreme Court justices, all conservative Catholics, to their post. But surely, some of it is also a sign of progress that we as a country are more accepting of other faiths and other ethnicities. For the first time in history, none of the men at the top of either ticket, Democratic or Republican, are both white and Protestant. Read more

Sources

• Washington Post
• Image: MPRNews