After the Supreme Court legalized gay marriage in the monumental case Obergefell v. Hodges, religious business owners have begun raising complicity-based religious claims. These claims argue that mandating business owners to do business with gay couples violates the owners' religious freedom, making them complicit in endorsing gay marriage which they characterize as morally wrong according to their religion, violating the free practice of their religious beliefs. This is a slippery slope. Should religion be an excuse to discriminate against gay people?
In 2018, The Supreme Court issued their opinion in Masterpiece Cake Shop v. Colorado Civil Rights Commission. In this case, a wedding cake decorator declined to decorate a wedding cake for a gay couple, alleging that the cakes he decorates for weddings are an art form he uses to honor God, and it would displease God to make a cake for a same sex couple. The couple who commissioned the cake reported this as discrimination to the Colorado Civil Rights Commission. The Supreme Court issued cert to hear this case, however, they didn’t answer the question of whether or not the cake decorator should be compelled to make cakes for same sex couples, rather they chastised the Civil Rights Commission for showing hostility towards his beliefs. The Court asserted that the commission was not neutral in evaluating this case, thus violating the baker's First Amendment rights. In this sense the Court declined to comment on whether or not someone can use their religion to discriminate against gay couples when their business centers on creative expression.
A notable complicity-based religious claim is Burwell v. Hobby Lobby. In this case, Hobby Lobby, a company run by Christian individuals, argued that the affordable care act’s requirement of employee- based health care plans to cover contraception violated the company owner’s religious freedom by making them complicit in the distribution of contraception which, to them, is immoral. Hobby Lobby argued that being required to cover contraception violated their right to free exercise. The question became this: can a for-profit company deny its employees health coverage of contraception to which the employees would otherwise be entitled? In a split 5-4 opinion, the Supreme Court found that corporations could be “persons” and that mandating this coverage did violate free exercise, as well as the Religious Freedom Restoration Act of 1993. Thus, bolstered the notion that businesses have religious rights as well. When this case was decided in 2014, there wasn’t a stark ideological majority on the court as we see today. Undoubtedly, with the conservative majority that exists today coupled with the religious beliefs of new justices Kavanaugh and Barrett, complicity based religious claims could gain major traction.
The Supreme Court has recently issued cert to review the case 303 Creative LLC v. Elenis. In this case, Lorie Smith, the owner of a graphic design firm, holds that a Colorado law prohibiting public businesses from openly discriminating against gay people violates her religious freedom, as she wishes to expand her business to include wedding websites, yet she holds religious views that condemn gay marriage. According to precedent, the Supreme Court cannot infringe on the right to free speech unless it is in furtherance of a government interest. In this case, the government interest would be ensuring LGBTQ couples have equal access to the individual services that Smith provides. However, there is a twist, 303 Creative LLC is a creative entity, thus the Supreme Court’s ruling will address how businesses participating in expressive activity may have religious exemptions from the laws protecting LGBTQ rights.
This case opens up interesting questions on the intersection between religious freedoms and civil rights. It reminds me of a quote by the libertarian John Stewart Mill-- "freedom of your fist ends where my nose begins." The questions the Supreme Court will answer will center on whether or not freedom of one's right to equal treatment ends where another's beliefs begin, or one's right to religion ends where another's civil rights begin.
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