Why The Religious Liberty Argument Threatens Civil Rights And Anti – Discrimination Statutes

Civil Rights Policy Brief #210 | By: Rodney A. Maggay | July 28, 2023

Photo taken from: americanprogress.org

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On June 30, 2023 the Supreme Court handed down its decision in the case 303 Creative, LLC v. Elenis. That case began when the owner of a graphic design business in Colorado considered expanding her business to include wedding website design. She had concerns, because of her religious beliefs and opposition to same – sex marriages, that she would be compelled to create a wedding website for a same – sex couple. The Supreme Court decided in a 6 – 3 decision based on free speech grounds that “The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees.”

In the aftermath of the decision, a number of notable incidents occurred indicating that the decision was being interpreted in an extreme manner. In July in Traverse City Michigan Christine Geiger, the owner of Studio 8 Hair Lab announced on Facebook “If a human identifies as anything other than man/woman, please seek services at a local pet groomer. You are not welcome at this salon. Period.” In subsequent interviews with the owner, she clarified that she was opposed to the TQ+ of the LGBQT+ acronym and claimed she had a right refuse service to those persons. The T stands for transgender persons and Q stands for those who identify as queer. The + is an all – encompassing symbol for those who identify as intersex, asexual, pansexual, two – spirit or omnisexual.

In Texas, McLennan County Justice of the Peace Dianne Hensley filed a lawsuit in 2019 after being warned by the Texas State Commission on Judicial Conduct for her refusal to perform same – sex marriages in the state. Her rationale is that she is being unfairly punished for her religious beliefs and opposition to same – sex marriages. Her case was subsequently dismissed after reaching a lower appeals court tribunal. But with the recent Supreme Court decision in 303 Creative, LLC v. Elenis, the Texas Supreme Court agreed to hear the case to consider whether her lawsuit should be revived. LEARN MORE, LEARN MORE, LEARN MORE

Analysis

These two incidents and a number of other lower court cases illustrate the danger and hatred that LGBQT+ people face in the ongoing discrimination because of religious liberty debate. The 303 decision carved out a free speech exception but it was clear that the motivation behind the case was in using a person’s religious beliefs as justification to refuse to serve other persons in the marketplace because of their opposition to the lifestyle choice of the other persons.

But the danger and harm that appears to be emerging may not be just against the LGBQT+ community. The rationale of the 303 decision and the justification often put forth by those who are claiming that their religious liberty is being infringed is that they are being forced to do something against their religious beliefs. In the 303 case the reasoning was that the graphic designer was being forced to say words or express views in her own designs that went against her religious beliefs. In other cases, the rationale is that by providing a service or selling a product to a couple living their lifestyle choice means that the religious people endorse or support same sex marriage.

But now, legal scholars are wondering if this refusal to serve another person could be extended to matters outside LGBQT+ issues. In Justice Sonia Sotomayor’s dissent in the 303 case, she listed numerous examples where a person might decide to refuse someone service because of their religious beliefs. She listed a photographer refusing to take professional head shots of a woman because he might not believe women should work outside the home. Or that a vendor could refuse service of any item or service to an interracial couple because of religious beliefs against people of different races mixing or even marrying. Anti – miscegenation laws were once justified on religious grounds with reasoning as ignorant as “because the Bible was against races mixing.” And during the 1960’s, a reliance on religious beliefs and religion was once used as the reason to refuse to support passage of the Civil Rights Act of 1964. If the 303 case and its rationale becomes more accepted and widespread than it is likely that certain civil rights and anti – discrimination statutes can be nullified and given minimal effect if a person can simply claim religious liberty for any law they do not want to follow. This is a very dangerous road to be going down but that seems to be the effect that the 303 decision is having. Over one hundred and forty years ago in the 1879 Supreme Court case Reynolds v. United States the Court recognized this problem and Chief Justice Morrison Waite wrote

“Can a man excuse his [illegal] practices…because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances….”

It is unfortunate that today’s Supreme Court has failed to follow this legal principle, opting instead to give a preferred position to religious beliefs over the rule of law. No person should be deprived of their civil rights by a hairdresser or even a judge simply because of the religious beliefs of those people. Maybe one day the Supreme Court will revisit these discrimination in the name of religious liberty cases and re-adopt the legal principle from the Reynolds case, lest the LGBQT+ community and other vulnerable communities be deprived of the protections of civil rights and anti – discrimination statutes and their basic civil rights. LEARN MORE, LEARN MORE

Engagement Resources

• National Constitution Center – analysis of the 303 decision and discussion about free speech, expressive conduct and discrimination.
• The First Amendment Encyclopedia – a history and explanation of the Supreme Court’s 1879 Reynolds v. United States decision.

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact rodwood@email.com.