The Daily - A Clash Between Religious Faith and Gay Rights

Episode Date: July 3, 2023

The Supreme Court delivered another major decision this past week, ruling in favor of a web designer who said she had a First Amendment right to refuse to create wedding websites for same-sex couples.Adam Liptak, a Times correspondent who covers the court, explains what the ruling might mean for all kinds of different groups of Americans.Guest: Adam Liptak, who covers the United States Supreme Court for The New York Times.Background reading: The justices settled a question left open in 2018: whether businesses open to the public and engaged in expression may refuse to serve customers based on religious convictions.Here’s what to know about the free speech decision.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday.

From The New York Times, I'm Sabrina Tavernisi, and this is The Daily. On Friday, the Supreme Court delivered another major decision on the last day of its term, ruling in favor of a web designer who argued that having to create websites for same-sex marriages violated her right to free speech. favor of a web designer who argued that having to create websites for same-sex marriages violated her right to free speech. Today, my colleague Adam Liptak on how the ruling puts freedom of expression above freedom from discrimination and what that might mean for all kinds of different groups of Americans. It's Monday, July 3rd. Adam, you're back.

Hello, Sabrina. So this time you're here for another major case, one potentially with far-reaching consequences for same-sex couples. Tell me about the ruling. So this is the end of June when we get the big cases, with far-reaching consequences for same-sex couples. Tell me about the ruling. So this is the end of June when we get the big cases, and this is one we've been waiting for for many months. The question is whether a website designer with religious convictions

can refuse to provide services to same-sex couples for same-sex marriages. provide services to same-sex couples for same-sex marriages. And the court, by the usual six to three split with the six Republican appointees in the majority, says yes, she can. She has a First Amendment free speech right not to be compelled by the government to say things she doesn't believe. she doesn't believe. She says that same-sex marriages are false and that in having to comply with a Colorado anti-discrimination law that forbids discrimination on many grounds, including sexual orientation, the government is making her violate her free speech rights by compelling her to say something she doesn't believe. In other words, she has the right not to make a website for same-sex couples who are getting married because they're same-sex couples, something she disagrees with.

Right. And there is an established First Amendment doctrine called compelled speech that says you can't force schoolchildren to say the Pledge of Allegiance. You can't require people to, in New Hampshire, have a license plate that says live free or die. And whether that concept fits neatly here is open to question. But the Supreme Court adopts that concept, or the majority does, and says that this anti-discrimination law, as applied to a web designer, engaged in expressive conduct, violates the First Amendment. This is sounding vaguely familiar. I'm thinking about that case a while back about a cake baker who didn't want to bake a cake for a same-sex wedding, also in Colorado. It was about five miles away from where this web designer works. Wow.

You're right to remember that case. It involved a baker named Jack Phillips who made custom wedding cakes. He said they were artistic works. And he refused service to a same-sex couple, was punished for it. That case went all the way to the Supreme Court. But we didn't get a definitive decision in that case.

And remind me, why, Adam? What happened? I think the real reason was that the controlling vote was that of Justice Anthony Kennedy, since retired. Justice Kennedy was, on the one hand, the court's greatest proponent of gay rights, the author of all four major constitutional pro-gay rights decisions, but also very sensitive to First Amendment free speech concerns. found an off-ramp ruling in favor of the baker on quite narrow technical idiosyncratic grounds. None of that is important to follow. The only larger point is that there was no decision, and we've been waiting now for years for the Supreme Court to return to this topic. Okay, so now this case comes along with this web designer. Tell me about her, the person at the heart of the case.

Her name is Lori Smith. I paid her a visit some months ago as the case was soon to be argued. So Lori, tell me about you. Tell me about your business. What do you do here? Sure. So you're in my studio. This is 303 Creative here in Littleton, Colorado. And she told me her story. So I'm from a family of entrepreneurs. I always wanted to own my own business and I've always been creative. She starts her own business, which makes ads and logos and websites. Custom logos, custom artwork, custom designs. For a variety of businesses. Nothing I create, no two things are the same. So everything's custom expression and artwork and nature. And she sees herself as an artist and thinks that every piece of work she does for this business is unique.

So my clients are coming to me because they're not looking for like a boilerplate template. And she also says she's eager to go into a new business. She wants to provide websites for weddings. When I started creating, I made a decision that the things that I create and design for, they would be honoring and glorifying to God. And because of that, that means that I can't create all messages. But she says her Christian faith would not allow her to create websites for same-sex weddings. And I want to create weddings consistent with my faith, which teaches me that marriage is between one man and one woman.

She says she'll serve gay couples in all kinds of settings. I love everyone. I serve everyone. I have clients who identify as LGBT. I just can't promote every message. Just not in connection with same-sex marriages. But the state says that I can't do that. And she's afraid that if she goes into this business but only serves opposite-sex couples, she'll be punished by the state of Colorado under its anti-discrimination laws. For me, I cautiously looked around at the nature

of the environment in Colorado, and I saw what was happening with people like Jack Phillips, who has a similar faith to me, and I wondered if the state could do the same to me. And she thinks that because she's actually familiar with the Cake Baker case. She knows Jack Phillips, the baker in the case. And she knew she might run the risk of getting in trouble with Colorado, as he did, if she were to turn down business based on same-sex marriages. So how did he get involved in this lawsuit? Well, it started about six years ago. And so she gets together with a big Christian litigating firm called Alliance Defending Freedom, which had also represented Jack Phillips, and they file suit. She's actually opened her doors to this kind of business. They say that she has reason to be afraid that she'll face punishment if she starts into this business but won't serve same-sex couples for same-sex weddings. And so rather than wait to be punished, I decided to take a stand to protect my First Amendment rights. And I shouldn't have to be punished

before I challenge an unjust law. So there's really not a real-life dispute here, right? She's just trying to kind of head off the potential for a dispute that she thinks she might have if she expands her business. Right. In the case with the cake maker, there was detailed record evidence

in the court files on who had done what, when, and it really added some texture and context to the case. In this case, Smith said she had received but never responded to a request from what looked like a same-sex couple. Now, according to recent reports, the request was bogus, submitted under the name of a straight man. But in any event, the case is very different from that of the baker. Right. He actually had denied baking a cake to an actual couple, right? So, as you say, they were facts in the case. Here, she hasn't denied service to anyone. It's kind of something that might happen in the future.

Right. So we don't know what the request would look like. We don't know what any resulting website would look like. It's an odd thing to have a Supreme Court decision based on so little evidence. But obviously, nonetheless, the case makes it all the way up to the Supreme Court. Right, and you have to think that Alliance Defending Freedom had wanted to find another plaintiff in another case to get back to the Supreme Court, particularly as its composition had changed, as it had become more conservative. And when the case arrives at the

Supreme Court, it seems like a sequel to the case about the baker, and it is. But the baker's case had two pieces to it. It had a religious component, whether the Colorado anti-discrimination law violated his right to free exercise of religion, and also whether it violated his right to free speech, to free expression. Okay. This time around, the court only grants the free speech question. So we're looking at a case which has heavy overtones of a classic clash between religion and gay rights, but it takes the form of a question about free speech. Okay, so instead of this being a fight about religion and free speech versus discrimination, it's just free speech versus discrimination.

Right. The court apparently thought the best way to handle this question is in a streamlined fashion and really bear down on whether the First Amendment's free expression protection applies even in the face of an anti-discrimination law. discrimination law. We'll be right back. Okay, so how did we get to this ruling from the Supreme Court last week? Well, after the court agrees to hear the case, they hear argument in December. Mr. Chief Justice, and may it please the court, Lori Smith blends art with technology.

And it starts by Lori Smith's lawyer, Kristen Wagoner, art with technology. And it starts by Laurie Smith's lawyer, Kristen Wagoner, getting up and making basically the same points that Smith made to me. Smith believes opposite sex marriage honors scripture and same sex marriage contradicts it. That she has religious convictions. She shouldn't be forced to violate them by saying things she doesn't believe, that the First Amendment protects her in this area. I welcome this court's questions. And what did the justices make of that argument? Well, the justices were really trying to sort out what kinds of businesses are we talking about that can invoke the First Amendment at all. How do you characterize website designers?

at all. How do you characterize website designers? Are they more like the restaurants and the jewelers and the tailors, or are they more like the publishing houses and the other free speech analogs that are raised? Many people would agree that a painter, a songwriter, That a painter, a songwriter, the ghostwriter of a biography engages in First Amendment protected activity and therefore might have a claim. But not, for example, a shoe store or Walmart or a tire company. Right. If you're just any regular business facing the public, you don't have those rights if what you're selling isn't your own expression. So the two ends of the spectrum are pretty well defined. I thought that there really isn't that clear a distinction in a situation like this. That didn't answer the question about whether this web designer in this context was engaging in expression. Can I give you a hypothetical? It's not really a hypothetical.

Justice Elena Kagan, for instance, says, what if what you're offering is basically a template. You have lots of graphics, you have, you know, typefaces, and basically, you know, clients are coming in and they're saying, we just want a standard website, you know, that tells people where to stay and how to travel there. And the question is, can a website designer say, sorry, that's not my kind of marriage. Does that amount to Laurie Smith's expression? How much creativity does she need to bring to the project? Okay, so I think that if I understand you, you're saying, yes, she can refuse because there's ideology just in the fact

that it's Mike and Harry and there's a picture of these two guys together. That is speech. You are announcing a wedding. There were questions about how much will people understand the resulting speech to be hers as opposed to the couple's. So what's the message if it says save the date, Lillian, Lillian, Lillian, Mary? What's the message there?

That's an invitation to celebrate a marriage. But why is it your invitation? So, I mean, if you look at a wedding website, are you going to go, well, that's interesting what Laurie Smith thinks about same-sex marriage, or are you going to think here's something that perhaps in consultation with an artist, but nevertheless was created by and is the speech of the couple. Another major question is, how broadly would a ruling in favor of Laurie Smith sweep? Can I ask you a hypothetical that just sort of helps me to flesh that out? Justice Katonji Brown Jackson, for instance,

asked an interesting hypothetical question. Can you give me your thoughts on a photography business in a shopping mall during this holiday season that offers a product called Scenes with Santa? And this business wants to express a kind of 1950s sepia-toned Christmas setting in which they say black children shouldn't participate because that's not their vision of what the 1950s in America was all about. Would that be acceptable? That's a kind of speech, I guess, setting up a Christmas scene in a shopping mall. And are you allowed to discriminate that way? So she seems to be suggesting that a ruling in favor of Smith could actually go way beyond a web designer's religious objections, that it could be a slippery slope.

Yeah, that's right. But even if it were, this court has protected vile, awful, reprehensible, violent speech in the past, and it has never compromised. No, I'm just asking you, why is the objection... An important point to recognize is that, let's recall, we're not talking about religious belief alone. We're talking about any belief. And that belief can be quite ugly. It can be, you know, an anti-Muslim belief. It can be the idea that women an anti-Muslim belief. It can be the idea that

women shouldn't participate in the workforce. It could protect all kinds of discrimination, so long as we're talking about expressive speech delivered on a custom basis. Got it. Meanwhile, some of the conservative justices suggested there might be a slippery slope in the other direction as well. But the problem, and what a lot of the hypotheticals are getting at is however we decide this case obviously applies to others. And in court, the justices were grappling with, well, where would the line be if this Colorado law was left in place? Couldn't that leave the door open

to at least some companies having to take on all kinds of work that they deeply disagree with? Does every press release writer, freelance writer, have to write a press release for the Church of Scientology, say, even though the beliefs of that institution may be inimical to that person? And the more the justices talk, the more it becomes apparent that they're finding these questions to be pretty hard. You could say. So the answer is yes, Colorado would compel that person. No, no. The answer is no. Okay, why?

Because Colorado. So there are, as lawyers like to say, a lot of line drawing questions here. most observers thought that the sixth justice conservative majority would find a way to rule for Laurie Smith, was basically sympathetic to her position. And that may have been inflected by the particular context of the case that she was a Christian woman opposed to same-sex marriage. And this is a court that's very receptive to claims based on religion, particularly from Christians, and maybe is not as sympathetic in cases involving gay rights

as it might be in other cases involving other forms of discrimination. And of course, Adam, you were right during the oral arguments to assume what you did assume. That is exactly what they ruled. So tell me about the specifics of this decision. Justice Neil Gorsuch writes for the sixth justice majority, and he basically says, you know, it's true. There are some hard questions here.

There are some thorny questions. But the question in this particular case, he says, is an easy one. That Lori Smith has a First Amendment right not to be compelled by the government to make websites for same-sex weddings, even in the face of a Colorado law that prohibits discrimination based on sexual orientation. So basically, they duck the thorny issues and say she's right. They kind of take her argument at face value. Right, and I guess I'd say they take her facts at face value

because they said that she was basically an artist, that she was engaged in expression, she had earnestly held views about same-sex marriage, and that she shouldn't be forced to say something she didn't believe. And in Gorsuch's opinion, is there any limit to what a so-called expressive, creative business can do when it comes to denying services? Like if she, Laurie Smith,

wanted to refuse services based on a different kind of belief, say a belief that interracial marriage is wrong, would denying a couple a wedding website be protected in that case, according to his opinion? So the decision is very closely tied to the facts of the particular case. But the logic of the decision certainly extends to other kinds of discrimination. I was particularly curious about what Justice Gorsuch would have to say about discrimination based on race. And I was surprised enough that I wasn't finding that discussion that I did a word search in the document to make sure I wasn't missing something. And although the dissent discusses racial discrimination, there's nothing about that

in the majority opinion. So the opinion leaves open two kinds of questions. One of them, just how far some businesses can go in discriminating against people in various settings, but it also doesn't answer the threshold question of what businesses qualify as expressive businesses in the first place. So Justice Gorsuch seems to studiously avoid drawing lines and distinctions and is deciding the particular case without announcing general legal principles. And the Supreme Court usually is in the business of announcing general legal principles. So as this decision kind of makes its way out into the world, you know, the majority has not defined exactly what an expressive business is. it feels like that's going to be

the center of the debate, right, going forward. I mean, this is incredibly squishy. And it seems like this opinion really does everything it can not to wade into that squishiness. That's right. And you can portray that in two ways. One, that it's narrowly focused. But the other, in not addressing those other scenarios, it may open the door to all kinds of litigation and mischief. And Justice Sonia Sotomayor's dissent sure makes the point that it's hard to distinguish, based on the logic of the decision, other kinds of discrimination. For instance, and she has a lot of examples, but one she offers is, what if a business offers school photos? Can it deny those services to multiracial children

because the owner does not want to create any speech indicating that interracial couples are acceptable? I don't think Justice Gorsuch's majority has an answer for that, or at least not one that he has offered. So she's talking about the slippery slope and the negative possible effects from that. Right. She's saying that after the civil rights movement of the 1960s, we have gotten to a place in the United States where everyone has accepted that businesses open to the public can't discriminate. And here, all of a sudden, we're moving in the opposite direction on the basis of a First Amendment doctrine that has not previously been used to allow discrimination. She's basically saying this is discrimination, pure and simple.

Yeah, and I'm not sure Lori Smith would say that she's discriminating. She might not adopt that language. But in making distinctions based on her faith and declining to serve people, it is a form of discrimination, but maybe the First Amendment allows it. So, Adam, at the end of the day, this really limits the power of anti-discrimination laws, right? Like, how will they govern and be the law of the land in this new environment that we're in after this ruling? I agree with you, Sabrina, that it's a significant step, but let's also recognize the limits. It applies to a relatively narrow class of businesses.

It applies to those businesses when they're doing customized expression, and it only comes into play if the business, probably contrary to their economic interests, wants to discriminate against groups of people. And it's true that most anti-discrimination laws will be enforceable tomorrow just as they were yesterday. But at the same time, the message of the decision seems powerfully symbolic.

In a clash between a woman's religious faith and gay rights, religion comes out ahead. Or a cynic might say that this is a decision in the aftermath of the court's ruling establishing a constitutional right to same-sex marriage, which has remained unpopular in some quarters, and is a signal in the culture wars that same-sex marriages don't get quite the same protections as other marriages. protections as other marriages. So even though the ruling was based on free speech, you're saying it's important symbolically that this was specifically about a religious belief in same-sex marriage. Yes. So there are two ways to look at the decision. One is that it's a question about free speech and it applies in all kinds of settings. But I don't know that it gets to the Supreme Court if it didn't involve the contentious issue of same-sex marriage and the feeling among some religious people that it remains a contested and offensive concept.

Adam, thank you. Thank you, Sabrina We'll be right back Here's what else you should know today. I am so disappointed with this decision and it actually almost brings me to tears. On Friday, in a 6-3 decision, the Supreme Court struck down President Biden's plan to cancel a portion of student loan debt for individual borrowers. We were looking forward to the student loan forgiveness. We were more than $1.6 trillion nationwide, the plan specifically targeted lower earners, offering up to $20,000 of debt cancellation for those making less than $125,000 a year. We can't afford housing and groceries.

Who do they think are going to pay these back? Because it's not me. The court said the plan, which had not yet gone into effect, overstepped the authority of the Department of Education and required approval of Congress. I know there are millions of Americans, millions of Americans in this country who feel disappointed and discouraged or even a little bit angry about the court's decision to day on student debt. And I must admit, I do too. Speaking at the White House on Friday, President Biden made his displeasure with the court's decision clear. I believe the court's decision to strike down my student debt relief program

was a mistake, was wrong. I'm not going to stop fighting to deliver borrowers what they need, particularly those at the bottom end of the economic scale. He announced he would continue the fight for debt relief and was directing the Secretary of Education to find new ways to ease the economic burden for borrowers. Today's decision has closed one path. Now we're going to pursue another. Today's episode was produced by Rob Zipko, Rachel Quester, Alex Stern, and Shannon Lin,

with help from Michael Simon Johnson. It was edited by Mark George and Paige Cowett, with help from Devin Taylor. Contains original music by Alicia Baitube and Marian Lozano, and was engineered by Chris Wood. Our theme music is by Jim Brunberg and Ben Landsberg of Wonderly. That's it for The Daily. I'm Sabrina Tavernisi. See you on Wednesday Wednesday after the holiday.