Courts Can’t Make Up Their Minds on Freedom of Religion for Businesses

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Chelsey Nelson

Different courts have ruled differently in recent cases of Christians with businesses that serve weddings on whether or not the government can force them to serve same-sex weddings.

In July 2021, a three-judge panel of the U. S. Court of Appeals for the 10th Circuit ruled against Lorie Smith, a website designer, who would like to expand her business to include creating websites celebrating weddings. The state of Colorado says that Smith must create websites celebrating same-sex weddings, even though same-sex marriage is contrary to Smith’s Christian faith. Smith sued the state over its Colorado Anti-Discrimination Act. The 10th Circuit Court’s majority wrote, “Colorado has a compelling interest in protecting both the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace.” Apparently, however, it has no “compelling interest” in protecting the religious or free speech rights of Christians. The Court also wrote, “Colorado may prohibit speech that promotes unlawful activity, including unlawful discrimination.” Wow! So, if you’re planning a civil disobedience action, better not tell all your friends in Colorado, or they could suppress your speech. This is so far removed from the Constitution that it’s ridiculous.

Judge Timothy Tymkovich wrote the dissenting opinion, saying, “the Constitution protects Ms. Smith from the government telling her what to say or do. … But the majority takes the remarkable – and novel – stance that the government may force Ms. Smith to produce messages that violate her conscience. … In doing so, the majority concludes not only that Colorado has a compelling interest in forcing Ms. Smith to speak a government-approved message against her religious beliefs, but also that its public-accommodation law is the least restrictive means of accomplishing this goal. No case has ever gone so far.”

In December 2021, a federal judge of the U. S. District Court for the Western District of New York, rejected the request of Emilee Carpenter, a Christian with a photography business, to grant a preliminary injunction against New York’s anti-discrimination law. In his ruling, Judge Frank Geraci, Jr. wrote, “New York has a compelling interest in ensuring that individuals, without regard to sexual orientation, have equal access to publicly available goods and services, and that the Accommodation clause is narrowly tailored, as applied to Plaintiff, to serve that interest. … As a result, even if the Accommodation clause compels speech or expressive association in a manner that implicates Plaintiff’s free-speech and free-association interests, the provision survives strict scrutiny.” So, again, a judge claims that a state has a “compelling interest” to ensure that same-sex couples are not discriminated against, but no compelling interest to ensure that the religious, free speech, or free association rights of Christians are respected. The judge even recognizes that the Accommodation compels speech and association! This, even though the Constitution has merely been interpreted to grant the right to same-sex marriage, while it specifically lists the rights to freedom of religion, freedom of speech, and freedom of association in the Bill of Rights.

Alliance Defending Freedom, which represents both Smith and Carpenter, plans to appeal both decisions. Jonathan Scruggs, Senior Counsel for Carpenter’s case, warned, “The court’s decision continues down a dangerous path of the government compelling artists to speak messages that violate their religious beliefs — or imposing steep fines, closing their businesses, or throwing them in jail.” State governments are willing to put Christians in jail for refusing to create a website celebrating a same-sex wedding? Yes, that is one of the potential punishments available to some states. What country are we living in?

If a Christian website designer can be forced by the government to celebrate same-sex marriages, then a Muslims violinist can be forced to perform at a Jewish wedding, a Jewish composer can be forced to compose a Catholic Mass, and an atheist website designer can be forced to create a website arguing for the existence of God. We know, however, that none of these things would be supported by the courts, even though discrimination on the basis of religion is illegal, as well.

Some commenters on the internet have asked why a same-sex couple would seek to purchase the services of a Christian photographer or web designer. Why would they want someone who is not invested in their wedding to participate in such an important way? This is naive. This is not about getting photographs of their wedding or a website. This is about putting people of Christian faith out of business. A quick google search will bring up not one case of a same-sex couple seeking to purchase the services of a Muslim photographer, or of any Muslim businessperson to serve their needs for their wedding. Recognizing that this is about putting Christians out of business is not about being conspiratorial. It’s about not being stupid.

However, there is some good news. On Tuesday of this week, U.S. District Judge Benjamin Beaton of the Western District of Kentucky granted a summary injunction against the city of Louisville, KY, ruling that they cannot force Chelsey Nelson, a Christian photographer, to photograph a same-sex wedding because she is “motivated by her faith to celebrate marriage as the union of only opposite-sex couples.” 

Judge Beaton wrote that, while Louisville “may require restaurants and hotels and stores to provide services regardless of the proprietors’ views or their customers’ legal status, the government may not force singers or writers or photographers to articulate messages they don’t support. … The freedom of speech — especially for minority views — is a core premise of our democratic republic. As prevailing sentiments and politics have changed over the years, robust constitutional protection for differing views has remained fixed.” Beaton pointed out that the First Amendment also protects supporters of same-sex marriage in speaking out for their cause. “Because the U. S. Constitution supersedes Louisville’s Fairness Ordinance as a matter of law,” Beaton wrote, “this Court enjoins the City from either compelling or suppressing Nelson’s photography and writing.”

This needs to be settled. The Respecting Marriage Act that has passed the House and is being considered by the Senate is intended to codify same-sex marriage into federal law, in case the current, more conservative Supreme Court over rules the decision that legalized it. Many legislators and religious leaders have raised concerns that the Act would allow for polygamy and provides no religious exemption. Some sponsors in the Senate are working on amendments to address these concerns. We’ll see how that goes.

But the idea that the government can compel speech or action contrary to a person’s sincerely held religious faith is contrary to every principle on which this country was founded. Judges that have ruled on Biden and Becerra’s attempts to force Catholic hospitals and doctors to perform abortions and sex re-assignment surgeries have ruled in favor of the hospitals and doctors. They get it. Why these judges ruling against these Christian businesspersons can’t see it is beyond me, unless they are so committed to a political/social agenda that they’re willing to sacrifice the Constitution and the rights of people under the Constitution to support that agenda.

I’m hoping these Christians finally win and their rights are protected. But they may lose. Their losses will be our losses. We Christians need to be prepared to stand strongly for the faith, even in the face of severe consequences. (Golly, I hope no one in Colorado reads this. I may be charged for encouraging illegal activity!). In the world we will have tribulation. But be of good cheer. Jesus has overcome the world.

Be Christ for all. Bring Christ to all. See Christ in all.

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