On Monday, starting a new week of hearings, the Supreme Court will revisit the culture wars, this time in a case testing business firms’ right to refuse to deal with same-sex couples in making their wedding plans. The refusal in this case was based on the business owner’s religious views, but the Court, without explaining why, has set up its review to avoid that aspect, making it instead about free speech.
The Court is scheduled to hear that case and another tomorrow, but most of the discussion here focuses on the marriage case. A second hearing on a complex issue over the bankruptcy of the Sears Roebuck store chain will be summarized briefly below.
The Court will broadcast “live” the audio (no video) of the hearings on its homepage, supremecourt.gov To listen, click on “Live Audio” and follow the prompt when the courtroom scene appears lower on the page. The audio also will be available, under the title of each case, on C-Span TV at this link: cspan.org/supremecourt
Same-sex marriage case: 303 Creative LLC v. Elenis Beginning at 10 a.m., the hearing is scheduled for 70 minutes.
Background: Since the Supreme Court in 2015 interpreted the Constitution to include a right for same-sex couples to marry, America has somewhat haltingly tried to adapt to the social and cultural consequences of that ruling. Over time, though, that constitutional right has apparently gained wide acceptance: the Gallup poll showed only 27 percent support in 1996, but that rose to 71 percent this year.
The Court has been a bit reluctant to return to the issue: it has decided only two significant cases on same-sex marriage since 2015; both rulings favored religious business owners or charities that refused to provide services to gay and lesbian couples seeking to marry or in their role as parents.
One of those involved a Colorado bakery owner who, for religious reasons, would not bake a wedding cake for a gay couple. The Court ruled for the baker, based upon a finding of clear evidence of state officials’ “hostility” to his religion. The other case upheld the right of a Roman Catholic charity in Philadelphia to refuse to allow same-sex parents into its foster care program.
Meanwhile, the controversy over marriage equality has intensified, legally and politically, in the wake of comments that Supreme Court Justice Clarence Thomas made last June. In a separate opinion speaking for himself when the Court overturned Roe v. Wade, ending the constitutional right to abortion, Thomas argued that the Court should reconsider the same-sex marriage ruling in Obergefell v. Hodges (which was based on the same constitutional phrases as Roe v. Wade).
If the Court were to overrule the Obergefell decision, 35 states would be likely to put back into effect previous bans on such marriages, according to the National Conference of State Legislatures. The House of Representatives, in part reacting to that possibility and to Thomas’s suggestion, passed a bill in July to endorse the equality principle nationwide.
Last week, the Senate followed, passing a bill that would support same-sex marriage but make a number of concessions to protect strictly religious organizations from being sued over opposition to such unions. The House is expected to react to that bill next week, with a strong likelihood that the measure will be sent to President Biden to sign.
Early this year, before the abortion decision emerged, the Court received a new appeal – in another Colorado case – pressing a new challenge to that state’s law banning discrimination by businesses based upon customers’ “sexual orientation.”
Laws that seek to open “public accommodations” to customers without discrimination have a background deep in English legal history. They barred innkeepers and blacksmiths, for example, from turning away customers without good reason.
In the U.S., Congress passed such laws in civil rights legislation in 1964 and 1990.
Colorado has had such a state law since 1886; now, its law is sweeping, prohibiting discrimination by businesses open to the public, when a refusal to deal with a customer is based on “disability, race, creed, color, sex, sexual orientation, gender identity, gender expression, marital status, national origin, or ancestry.” The law is enforced by the state Civil Rights Commission, which can impose remedies for violations. Victims may also sue in state courts.
The new case in the Supreme Court involves Lorie Smith, a graphic designer who owns a website design business in Littleton, a suburb of Denver. She and her firm, 303 Creative LLC, will not create websites as part of the wedding preparations of same-sex couples.
She has prepared a statement defending the position, saying that she believes that God “is calling me to this work” and that God has summoned her “to use the talents and business He gave me to publicly proclaim and celebrate His design for marriage as a life-long union between one man and one woman.” Preparing websites for same-sex weddings, she added, “would compromise my Christian witness.”
Smith, aware of the state law and apparently expecting it to be applied to her firm, joined with the firm in suing the Civil Rights Commission in federal court in 2016, before the agency could take action.
The lawsuit raised a series of challenges to the law, claiming that it violated her First Amendment right to freely exercise her religion and her right to free speech, and that it was too broad and too vague. A federal trial judge ruled against her, in a summary ruling without a full trial. A federal appeals court upheld that ruling. Among other points, the appeals court decided that the law did not single out Smith because of her religious views, but rather was a general prohibition on discrimination based on sexual orientation.
Smith and her firm appealed to the Supreme Court, raising two questions: first, was the Colorado law unconstitutional under both the Free Exercise and Free Speech clauses, because it forced her, as an artist, to “speak” in favor of same-sex marriage, contrary to her religious beliefs, and, second, does the law discriminate by allowing some exceptions for secular businesses but not for religiously-oriented businesses?
Her appeal told the Court that 19 states were prepared to apply laws like Colorado’s to force people to violate their consciences.
The Court apparently examined the case at four separate sessions before deciding, on February 22, what to do with it. It agreed to review the case, but only on Smith’s claim of a violation of her free-speech rights. This narrowing of the case was not explained in that brief order, but it probably reflected a desire on the part of some Justices to avoid – at least in this specific case — the more contentious issue of religious freedom. The Court has wide freedom to set its own agenda, and it has a tradition of not deciding more than it needs to in resolving a case.
The question before the Court: Does a state public accommodations law that is used to compel an artist to speak or stay silent violate the First Amendment’s Free Speech Clause?
Significance: It is difficult, before the Court has a chance to reveal its thinking at tomorrow’s hearing, to know whether it will use the case to make any kind of broad statement about same-sex marriage as a constitutional right. In other words, might it be thinking about taking up Justice Thomas’s suggestion that same-sex marriage should no longer be a constitutional right?
The way the Justices came together to write the only question they were willing to answer in this case suggests that they are not prepared to question the power of a state to protect same-sex couples in the commercial marketplace, but only to give guidance on how such a law should be applied to someone who clearly has a right to free expression – a designer who “speaks” through visual artistry.
Smith and her firm can take some comfort from the fact that the Court was prepared to hear her appeal at all, since the state Commission urged the Justices not to hear the case because no enforcement action has been taken, the firm has not yet begun offering marriage-related website designs, and no one has yet asked the firm to design a website for a same-sex couple.
The Court seems to have looked past those factors, apparently accepting that Smith’s business was genuinely at risk of being charged under Colorado’s law. The Court has long been more willing to consider pre-enforcement cases when free speech rights are at stake.
Answering the free-speech claim will be clarifying, but will not provide America with much further constitutional guidance on when religiously oriented businesses can close their doors to same-sex couples, which is the more common context.
Monday’s bankruptcy case: MOAC Mall Holdings LLC v. Transform Holdco LLCI. The hearing, scheduled for 70 minutes, will begin when the marriage case hearing has ended.
Background. Bankruptcy law is as old as the Constitution, and it is one of the most complex fields of law. This case illustrates the complexity: it involves a special provision of bankruptcy law that applies only to shopping malls, and the issue is when a court has jurisdiction to review a sale of mall leases by a retail store chain that has gone bankrupt and what the law allows when someone takes over those leases from that retailer.
Perhaps the case has somewhat wider consumer interest because it involves the venerable retailer, Sears, Roebuck & Co., which filed for bankruptcy after 125 years in business, and its closing seriously complicated the business life of one of the largest shopping centers in the nation – Mall of America, in Bloomington, MN. So eager was the mall to have a Sears store as an anchor that it charged Sears only $10 a year in rent. But even that, it seems, could not save the store amid the modern market trend that led shoppers away from the malls in droves, drawn by the ease of shopping on-line.
On Tuesday, the Court will hold two hearings. The first will give the Court a chance to clarify the unusual law that allows private citizens to go to court to challenge a waste of money in a federal government program, and get some of the money that is recovered. The second hearing involves another bankruptcy case, this one focusing on when a wife can be held jointly responsible for the couple’s debts and must share in paying them despite the bankruptcy, when the husband is responsible for their financial plight.