With justices under fire, a new Supreme Court term begins

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Supreme Court religious liberty
The Supreme Court is seen in Washington June 7, 2022. (CNS photo/Tyler Orsburn)

As the Supreme Court prepares to begin a new term Oct. 3, it remains under virulent attack from critics angered by its recent decisions on abortion and religion. Abortion is not on the court’s docket in the year ahead — not yet, anyway — but the justices have agreed to consider a crucial new dispute involving a clash between religious liberty and LGBTQ interests. And that most likely means more criticism to come.

The rhetorical fireworks have been aimed at the Supreme Court’s conservative members, and the tone has been unusually harsh.

For example: Former New York Times Supreme Court reporter Linda Greenhouse called the court’s action upholding a high school football coach who was fired for praying publicly “astonishing,” an MSNBC commentator accused the justices of using “a hammer” against the Constitution’s no-establishment clause, and a University of Baltimore law professor claimed the court conservatives sought to bring about “a foundational alteration of American government.”

So, what did the Supreme Court actually do last term about religion that got critics on the left so worked up? Three decisions stand out.

In one case, it ruled that Boston erred in refusing to fly a Christian flag on a city flagpole that routinely displays the flags of other groups. In a second case, it held that Maine was wrong to exclude some high schools from a state tuition program for being, in the state’s opinion, too religious while at the same time giving money to other schools that met its religious test. And in the third, most-publicized case, it said a Washington state school board should not have penalized that football coach for praying publicly.

And this is what moved two staffers of the American Civil Liberties Union to charge the conservative justices with adopting an approach “that would see the lines between church and state hopelessly blurred, if not eliminated altogether.”

A new case of conscience protection

Despite the criticism, the court in its new term will take a fresh look at a fraught issue it has considered before: May a small business owner refuse for reasons of conscience to provide services implying approval of same-sex marriage without falling afoul of anti-discrimination public accommodations law?

The Supreme Court faced the same question four years ago in the case of a Colorado baker named Jack Phillips who refused to bake a wedding cake for a same-sex couple. Although the court ultimately ruled for Phillips, it did so without addressing the constitutional issues — free speech and religious liberty — and instead based its ruling simply on the fact that some members of the Colorado Civil Rights Commission exhibited bias against the baker’s religious beliefs. Phillips has been in court since then in a different dispute with a transgender person.

The new case, also from Colorado, involves independent graphic designer Lorie Smith and her company 303 Creative LLC. In agreeing last February to hear Smith’s case, the court specified that it would consider only whether her First Amendment free speech rights had been violated. The case (303 Creative LLC v. Elenis) is on appeal to the Supreme Court from a 2-1 decision against her by the U.S. Court of Appeals for the 10th Circuit, which that court’s Chief Judge Timothy Tymkovich, dissenting, called “staggering” in its scope.

Smith, a practicing Christian who is represented by the Christian legal advocacy group Alliance Defending Freedom, has no objection to providing services to those with same-sex attraction as such, but she draws the line at same-sex marriage because it is contrary to her religious beliefs. The issue at stake in her case, she says in her appeal, is “whether governments may use public accommodation laws to compel artists to speak or stay silent when they enter the marketplace.”

“To answer that question ‘yes’ would be unprecedented,” she says, citing a unanimous 1995 Supreme Court ruling in a case called Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, which said the government may not use public accommodation laws to force speakers to “endorse certain messages and eschew others.”

By contrast, Smith says, in Colorado, “government officials and private parties have relentlessly plied [such a law] to compel speech the government favors and silence speech the government dislikes.”

While stressing her willingness to accept commissions from clients regardless of race, creed, sexual orientation or gender, Smith nevertheless says she will “decline any request — no matter who makes it — to create content that contradicts the truths of the Bible, demeans or disparages someone, promotes atheism or gambling, endorses the taking of unborn life, incites violence or promotes a concept of marriage that is not solely the union of one man and one woman.”

Strong support

Submitting a joint friend of the court brief in support of Smith are the U.S. Conference of Catholic Bishops, the Colorado Catholic Conference, the general council of the Assemblies of God, the general conference of Seventh Day Adventists, the Billy Graham Evangelistic Association and an evangelical Christian charity called Samaritan’s Purse.

The groups argue that the Smith case involves both the right of religious free speech and “the right not to be compelled” to endorse messages preferred by the government. “Our culture and our politics have become increasingly polarized, leading to regulations that would force minority voices to choose between violating their consciences or being pushed from the public square,” they say.

Their brief calls on the Supreme Court to “provide clarity about how the First Amendment’s guarantees apply” to cases like Smith’s and argues that the court’s own existing precedents on behalf of religious free speech — which it described as “fixed points in free-speech jurisprudence” — support her position.

The Supreme Court is expected to hear oral arguments in the case late this year or early in 2023 and to hand down its decision before it adjourns next June.

As the court begins a new term, it finds itself not only targeted verbally by critics incensed over its decisions on abortion and religion, but also the target of punitive legislative proposals.

For the moment at least, the idea of court-packing — adding new justices to increase the court’s size and create a liberal majority — seems to have been abandoned, but bills to set term limits for justices are pending in both houses of Congress. No action is expected before the November elections, and what might happen after that is impossible to predict.

Russell Shaw is a contributing editor for Our Sunday Visitor.

Russell Shaw

Russell Shaw writes from Maryland.