The Scottsdale legal nonprofit Alliance Defending Freedom (ADF) won a religious freedom case at the Supreme Court of the United States (SCOTUS).
SCOTUS ruled 6-3 at the end of June in 303 Creative v. Elenis against Colorado’s anti-discrimination law, Colorado Anti-Discrimination Act (CADA), as unconstitutional. The law would prohibit a Christian wedding website designer from refusing to create a same-sex wedding website.
The plaintiff, Lorie Smith, holds the Christian belief that marriage exists only between one man and one woman, and contests against the possibility that she either must produce content that “contradicts Biblical truth,” such as same-sex marriages, or cease business.
Ultimately, SCOTUS determined in a majority opinion written by Justice Neil Gorsuch that Smith’s creative expression constituted speech and that CADA therefore violated the First Amendment’s Free Speech Clause.
“Ms. Smith’s websites will express and communicate ideas — namely, those that ‘celebrate and promote the couple’s wedding and unique love story’ and those ‘celebrat[e] and promot[e]’ what Ms. Smith understands to be a marriage,” stated Gorsuch.
"This is a victory not just for me, but for all of us. Whether you share my beliefs or disagree with them, free speech is for everyone. And the government shouldn’t force anyone to say something they don’t believe. The Court’s decision means we are all more free today than we… pic.twitter.com/wXHqZgAWL2
— Alliance Defending Freedom (@ADFLegal) June 30, 2023
Gorsuch further criticized CADA for its fullest possible outcome: compelling speech of all manners and kinds from any commissioned person if their customer belongs to a CADA-protected class.
“Under Colorado’s logic, the government may compel anyone who speaks for pay on a given topic to accept all commissions on that same topic — no matter the message — if the topic somehow implicates a customer’s statutorily protected trait,” said Gorsuch. “Taken seriously, that principle would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty. The Court’s precedents recognize the First Amendment tolerates none of that.”
Smith does have LGBTQ clients; however, Smith won’t create content that runs counter to her beliefs.
After the SCOTUS ruling, ADF CEO and lead counsel Kristen Waggoner stated that differences of beliefs don’t constitute discrimination.
“Disagreement isn’t discrimination, and the government can’t mislabel speech as discrimination to censor it,” said Waggoner. “As the court highlighted, her decisions to create speech always turn on what message is requested, never on who requests it. [T]he government has never needed to compel speech to ensure access to goods and services.”
The U.S. Supreme Court has rightly reaffirmed that the government can’t force Americans to say things they don’t believe. The court reiterated that it’s unconstitutional for the state to eliminate from the public square ideas it dislikes, including the belief that marriage is the… https://t.co/9BtiPg0skn
Following the ruling, critics alleged that Smith fabricated a request for a same-sex wedding website after a news article insinuated she did. Colorado Attorney General Phil Weiser also derided Smith’s complaint as “a made-up case without the benefit of any real facts or customers.” ADF and Smith rejected those claims.
Corinne Murdock is a reporter for AZ Free News. Follow her latest on Twitter, or email tips to corinne@azfreenews.com.
On Wednesday, the 56th Arizona Legislature filed an Emergency Application to U.S. Supreme Court Justice Elena Kagan for a Vacatur of the Stay Pending Appeal Issued Sua Sponte by the United States Court of Appeals for the Ninth Circuit, involving the Biden Administration’s 2021 COVID-19 vaccine mandate for federal employees and contractors. Last week, the Ninth Circuit Court “reversed the district court’s order granting a permanent injunction and dissolved the President’s ‘Contractor Mandate’ Executive Order requiring federal contractors who worked on or in connection with federal government projects to be vaccinated against COVID-19.” The Legislature’s application seeks to reinstate that injunction, arguing that “because the Federal Respondents did not request a stay below, the Ninth Circuit overreached when it disturbed the status quo and stayed the district court’s injunction sua sponte.”
Senate President Warren Petersen issued the following statement to announce the filing spearheaded by him and House of Representatives Speaker Ben Toma: “We will not allow President Biden to blatantly undermine the will of the Arizona State Legislature in the protections we’ve provided for our citizens to prevent a COVID-19 vaccine mandate from dictating employment opportunities. The Biden Administration has made it clear that they are against any Americans who push back against this vaccine and will abuse their powers in order to force compliance as a stipulation of doing business with the federal government. Arizona will not tolerate this gross government overreach and intrusion of individual liberties. The Legislature’s intervention in this lawsuit against President Biden is critical in protecting the sovereignty of our state and the rights of all Arizonans.”
The case began as Brnovich v Biden, when former Arizona Attorney General Mark Brnovich filed the first lawsuit in the nation against the president’s COVID-19 vaccine mandates. At the time, Brnovich said that “the federal government cannot force people to get the COVID-19 vaccine,” and that “the Biden Administration is once again flouting our laws and precedents to push their radical agenda.” Brnovich’s suit was heard before U.S. District Court Judge Michael Liburdi, who later, in February 2022, issued a permanent injunction against the president’s mandate for federal contractors.
The Legislature’s application makes the case that this mandate is an abuse of President Biden’s authority, writing, “The Contractor Mandate is an unprecedented claim of presidential authority. Before September 2021, the federal government had never mandated vaccinations for the domestic civilian populace. Even as smallpox, polio, and influenza spread throughout the country, vaccine mandates were always viewed as an exercise of the general police power to be exercised by duly elected state legislatures and subdivisions of the States. See generally Zucht v. King, 260 U.S. 174, 176 (1922). Throughout those crises and the COVID-19 pandemic, even Congress with the full authority of Article I—has never mandated vaccination for anyone other than government personnel serving overseas or the military.”
The Arizona Senate Democrats Caucus quickly made it clear that its members were not supportive of this action taken by the Republican leaders, tweeting: “ARIZONA: The @AZSenateGOP changed the Senate rules in January 2023 to ensure that “The President is authorized to bring or assert in any forum on behalf of the Senate any claim or right arising out of any injury to the Senate’s powers or duties under the constitution or laws of this state.” Senate Democrats DO NOT support this & were not consulted about this frivolous use of state funds to take shots are our federal government. The COVID-19 vaccine is safe and saved countless American lives. This is wasteful and could have severe consequences.”
🚨 ARIZONA: The @AZSenateGOP changed the Senate rules in January 2023 to ensure that "The President is authorized to bring or assert in any forum on behalf of the Senate any claim or right arising out of any injury to the Senate's powers or duties under the constitution or laws… https://t.co/7PBGdfRMel
— Arizona Senate Democrats (@AZSenateDems) April 26, 2023
Daniel Stefanski is a reporter for AZ Free News. You can send him news tips using this link.
During oral arguments last Monday, the Supreme Court (SCOTUS) appeared to side with a Christian website designer who is challenging a Colorado law that would force her to create websites celebrating same-sex weddings. The final ruling is forthcoming.
Counsel in the case, 303 Creative LLC v. Elenis, is the Scottsdale-based Alliance Defending Freedom (ADF). At issue: whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.
Attorney Kristen Waggoner argued that SCOTUS precedent rejects government-compelled speech like what the state of Colorado wants to impose on graphic artist and website designer Lorie Smith with the threat of “pain of investigation, fine, and reeducation.”
Colorado Solicitor General Eric Olson argued that the free speech clause exemption wouldn’t just apply to sincerely held religious beliefs, but “all sorts of racist, sexist, and bigoted views.” Olson claimed that such protections would allow a tech company to refuse to serve 303 Creative LLC because of Smith’s religious beliefs.
Near the end of arguments, U.S. Deputy Solicitor General Brian Fletcher stated that he wanted the Court to find religious business owner discrimination against same-sex unions to be as odious and invalid of First Amendment protections as racism.
“I don’t mean to equate those who have different views of marriage to racists, but the reason why I rely on those hypotheticals is because this court’s First Amendment jurisprudence does not distinguish between views we find odious and those we respect,” stated Fletcher. “The same principles apply in both places, and if the principles lead to unacceptable places when we consider them in light of odious views, then I think we have to reject those principles even in the case where we sympathize with and respect the views.”
The three liberal justices of the court — Elena Kagan, Ketanji Brown Jackson, and Sonia Sotomayor — argued that website designers don’t speak through their product. They also argued that extending protection to speech arising from religious beliefs of true marriage would lead to protections for speech arising from discrimination against interracial or disabled couples.
The six conservative justices — Samuel Alito, Clarence Thomas, Neil Gorsuch, Amy Coney Barrett, Brett Kavanaugh, and John Roberts — repeatedly revisited the distinction between personalized, custom, commissioned products and goods and services served generally to the public.
Kagan claimed that websites weren’t particularly ideological or religious if there was an absence of explicitly written scripture or ideology. Waggoner disagreed, pointing to the context and message of the speech.
“When you switch out those names, you’re switching out the concept and the message that is in this website,” stated Waggoner. “The same words can convey different meanings.”
Sotomayor insisted that a creator wasn’t issuing speech by merely creating a product like a wedding invitation, but that only the distributor of the invitation was engaging in speech. Sotomayor further indicated that Smith’s work could only be viewed as her speech if she had stated expressly on her business website that her creations constituted her speech. Waggoner disagreed.
“In the same way that is the ghostwriter who writes an anonymous press release or a book. It is still that writer’s speech,” said Waggoner. “I don’t understand. How is this [the creator’s] story? It’s their story. […] It’s the story of the couple.”
Sotomayor questioned if there was a limit to compelling speech, citing examples of marriages between interracial couples or disabled persons. Waggoner said that was different, saying that it was “highly unlikely” that creators would serve certain races of people in certain contexts but not in a marriage.
“You’re not basing it on the nature of the message, you’re basing it on who you’re serving,” argued Sotomayor.
Waggoner contended that Smith has LGBTQ clients for other products, but can’t support same-sex marriage due to her Christian beliefs.
Sotomayor conflated Biblical and non-Biblical issues repeatedly, such as race and ability, insisting that creating content to display representation of a homosexual couple’s relationship wasn’t compelled speech. She compared Smith’s refusal to create a same-sex wedding website to a restaurant owner offering a limited menu to black individuals.
Waggoner said that book authors, newspaper editors, and writers for other types of publications were issuing their speech. Jackson interjected to say that those publication types weren’t “public accommodations in the same way.”
Jackson asked whether a caterer providing food to only Protestant customers would enjoy the same speech protections. She argued that conduct equated speech. Waggoner said no, drawing a distinction between speech and the messaging conveyed through conduct.
Alito questioned whether “plug and play” websites, essentially templates, imposed the same compelled speech issue. Waggoner said that was not the case because a creator wouldn’t be creating speech for the couple.
Barrett asked several hypotheticals: whether Smith would publish a site for a couple who describe their sexuality in a Biblically ambiguous way — “cisgender” and “heterosexual” — or a couple who admitted that they were marrying after cheating on their respective spouses. Waggoner said that Smith wouldn’t.
Waggoner argued that the court offers broad protections for speech arising from personal convictions.
“I think what’s important is the message she’s being asked to create,” stated Waggoner. “She believes that same-sex weddings contradict Scripture. And she’s announcing a concept of marriage that she believes to be false.”
Barrett asked why Smith couldn’t give a homosexual couple a website that was already created for a heterosexual couple. Waggoner said that it wouldn’t be the “same” since Smith would have to incorporate details and photos of the same-sex couple into the site.
“We know context changes meaning, just as Ginsburg said in Yates v. United States,” stated Waggoner.
Barrett asked whether the same could be said of a songwriter licensing an already-published song to a same-sex wedding. Waggoner said that the artist couldn’t because it was already in the stream of commerce, but admitted unfamiliarity with licensing procedures. She clarified that it would be different if the artist were to sing the song at or for the wedding.
Jackson argued that there’s no precedent for this type of case; Olson concurred. Thomas asked Olson to summarize any tradition of public accommodation laws, cases, or common law tradition applying to speech.
“The complicating factor here is this is not a hotel or a restaurant or a riverboat or a train. I’m interested in the intersection of public accommodations law and speech,” said Thomas.
Olson claimed that public accommodation laws don’t carve out exceptions for speech. He said there wasn’t a history of cases in which people asked for these exceptions.
Olson affirmed Sotomayor’s assertion that Smith’s business would be the first public accommodation that could refuse to serve a customer based on race, sex, religion, or sexual orientation.
Kagan asked whether Colorado would allow Smith to refuse a same-sex couple’s request to quote Obergefell v. Hodges on their website: the SCOTUS case requiring states to recognize same-sex marriage. Olson said yes, since she would be denying that request for all customers. Then Kagan asked whether Colorado would allow Smith to refuse a same-sex couple’s request to put “God blesses this union” on their website. Olson said that was different because it implicates free exercise of religion concerns.
“It is a statement of opinion about the nature of this marriage,” said Kagan.
Roberts asked why an individualized, subjective, multi-factor determination in foster care and adoption wouldn’t be the same as a seat on a bus or room in a hotel. Olson said that since Smith engages with customers as a public accommodation, she needs to be held to that discrimination-free standard. Olson characterized Smith’s religious dissent as a “status-based discrimination.”
Olson said that Smith’s business would suffer because she would lose opposite-sex couples upset by her refusal to serve same-sex unions. Alito questioned if businesses were allowed to exercise any kind of selectivity; Olson responded that Alito’s hypothetical required a fact-based analysis.
Alito asked further if selectivity conferred a public service status to businesses. Olson affirmed on the stipulation that selectivity was the only factor in their decision-making, noting that selectivity based on protected characteristics like race or sexual orientation wasn’t allowable.
“The more selective and curated the process is, the less likely it is to be a public accommodation,” stated Olson.
Alito asked whether Jewish photographers could be compelled to photograph for customers using the pictures on the website facilitating affairs, Ashley Madison, which prompted laughter. Olson said they could.
“The website designer can choose to put on their websites whatever they want,” said Olson. “But they just can’t refuse to sell — if they’re a public accommodation — they can’t refuse to sell that website to someone solely because of the customer or couple’s religion.”
Alito then asked if it was fair to equate opposition to same-sex marriage with interracial marriage. Olson responded affirmatively.
“Of course honorable people have different views on this issue,” said Olson. “The way to honor that requirement is as this court has set forth in Fulton, in Masterpiece, is to have a rigorous interrogation to make sure that there are neutral and generally-applicable laws applied in fact that way that don’t single out religion.”
Alito then asked if writers could be forced to write customized wedding vows or speeches containing speech that they loathe. Olson said no, because the speech wouldn’t contain offenses against protected classes. He said that “things that people loathe” wasn’t protected like sex, gender, religion, or discrimination.
Gorsuch asserted that Smith’s customized and personalized products were different from offering general services. Olson argued that allowing Smith that freedom of creation would result in every single same-sex couple being turned away, but Gorsuch disagreed.
“Well, they can ask for what they want but what they get might be another thing,” responded Gorsuch.
Gorsuch asked if speechwriters would be held to the same standard as Smith. Olson said Colorado wouldn’t compel that speechwriter to produce work to which they object.
“You can choose the content of what you say, you just can’t choose who you sell to,” stated Olson.
Gorsuch challenged why a speechwriter would be any different from Smith’s company. Olson claimed that Smith wouldn’t sell a wedding site promoting homosexual unions to same-sex couples, but Gorsuch contended that Smith was refusing to sell sites promoting that content to any customer.
Corinne Murdock is a reporter for AZ Free News. Follow her latest on Twitter, or email tips to corinne@azfreenews.com.
The Arizona Supreme Court will issue a ruling in the next few months that could allow complaints to be resolved and enforced by state agencies even if the agency did not have authority to impose a penalty or sanction in the first place.
On Nov. 15, the justices conducted oral arguments in a dispute between Legacy Foundation Action Fund and the Arizona Citizens Clean Elections Commission over nearly $100,000 in penalties imposed in 2015 against Action Fund for alleged violations related to election finance reports and political ads.
The Legacy Foundation Action Fund unsuccessfully challenged the Clean Elections Commission’s authority during agency-level proceedings, including an argument that the Commission lacked subject matter jurisdiction. Subject matter jurisdiction is a legal requirement that a given court or government agency has the authority to hear the matter brought before it.
Attorneys for the Action Fund did not timely appeal the issue, waiting instead until 2018 to revive the jurisdictional issue when the Commission sought to collect the penalty.
Earlier this year, the Arizona Court of Appeals issued a split opinion which held in part that the “need for finality” with a decision of an Arizona administrative agency can be more important than whether the agency actually had authority to issue the decision in the first place.
The opinion also noted a judgment by a state-chartered agency such as the Clean Elections Commission is not a legal nullity if the party failed to raise the jurisdictional issue in a timely appeal.
However, a strongly worded dissenting opinion by Judge Cynthia Bailey noted that while Legacy Foundation Action Fund forfeited several appellate rights by not filing its appeal on time, “it did not, and could not, forfeit” its right to challenge the Commission’s subject-matter jurisdiction.
“Subject-matter jurisdiction can neither be waived nor conferred by stipulation. A court simply cannot hear a case over which it has no jurisdiction,” Bailey wrote, adding that “under Arizona statutes and rules, the potential injustice when an agency acts beyond its statutory authority outweighs any interest in finality and judicial economy.”
Bailey’s dissent opinion closely aligns with arguments put forth in an amicus (friend-of-the-court) brief filed with the Arizona Supreme Court by the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation.
The Goldwater Institute is a nonpartisan public policy and research foundation whose priorities include the defense of individual rights against Arizona’s various state agencies which often operate outside the boundaries of evidentiary and procedural protections.
In the brief, attorney Timothy Sandefur cites prior court decisions in Arizona—some dating back to the 1920s—which have led to established case law that a judgment issued by a court, tribunal, or agency that lacks jurisdiction is void ab initio, or legally null.
“This has always been the rule in Arizona…and it should not be altered now,” Sandefur wrote, pointing out that Action Fund’s only opportunity to have its jurisdictional challenge heard was by the Commission itself, “which is not a judicial body, but a party to this dispute.”
And to elevate finality in litigation over validity as the court of appeals did “is to elevate form over substance and – alarmingly – efficiency over legitimacy,” the brief states.
Sandefur urged the Arizona Supreme Court justices to reject establishing a new legal standard for jurisdiction, especially in light of the burden it will create for people trying to defend themselves when agencies overstep their bounds, Sandefur wrote.
That burden “is likely to fall hardest on unsophisticated and unrepresented parties, particularly small business owners, workers, and entrepreneurs, who are often subjected to enforcement by regulatory agencies and often lack the wherewithal to obtain legal representation,” he added.
A decision from the Arizona Supreme Court is expected in Spring 2023.
Sen. Elizabeth Warren, with the concurrence of much of the Left, believes our democracy is once again under attack, this time from our own “rogue” Supreme Court. MSNBC agreed that “the Supreme Court has gone rogue.” The Congressional Progressive Caucus insists “we must hold these rogue justices to account.”
It goes beyond coordinated hysterical rhetoric. Rep. Alexandria Ocasio-Cortez demanded that Democratic Party leaders share their plans for “solving the problem of the rogue Court.” The New York Times advised “the Constitution provides a number of paths by which Congress can restrain and discipline a rogue Court.” Senator Sheldon Whitehouse introduced the Supreme Court Review Act to “check the Court’s rogue decisions.”
From the Left’s point-of-view, not only is the Court rogue, but so are the six justices who normally form the majority. According to protesters at a recent anti-Court rally, Roberts is an “impotent fool,” Kavanaugh a “drunken rapist,” and Thomas a “traitor and perv.” “Strong women scare” Alito. Gorsuch “stole his seat.” Barrett is in “an actual cult.”
Scholars like Berkeley Law Dean Erwin Chemerinsky write that none of the justices should be there. Georgia State Law professor Eric Segall argues that the Court’s illegitimate rulings should just be ignored.
But what rulings from this last term were radical, extra-legal interpretations of the Constitution? Here are some of the purportedly rogue rulings:
An administrative agency must have congressional authority to make far-reaching decisions.
If states subsidize students in private schools, they can’t exclude religious schools.
Since the Constitution is silent on abortion regulation, per the 10th Amendment, states retain the authority.
The Second Amendment actually prescribes the right to bear arms.
Reasonable people can disagree with these as policy prescriptions. However, the rulings are hardly constitutionally outrageous by any standard. They are not even that politically unpopular, except on the activist Left.
Still, White House press secretary Karine Jean-Pierre claimed, with no substantiation attempted, that overturning Roe v. Wade was an “unconstitutional action.” But most Court critics don’t argue about constitutionality. They simply don’t like the results of the rulings.
Americans have politicized the Court through failure to understand its role and purpose. Commentators commonly characterize justices as liberal or conservative, implying their personal ideologies are the legitimate basis of their judicial opinions. Sometimes they’re even referred to as Democrat or Republican.
Indeed, Barack Obama, himself a former constitutional law professor, wanted his Supreme Court nominees to “understand that justice isn’t about some abstract legal theory.” Rather, they should have “empathy…understanding and identifying with peoples’ hopes and struggles.”
But as the late Justice Antonin Scalia pointed out, there are fundamentally two grounds for federal court rulings: the text of the Constitution and laws or…what? Ideological chaos where ultimately the personal opinions of the judges prevail.
Americans not only tolerate this practice, they demand it. Partisans fully expect the Court to protect their ideological interests, to be their backup when the legislative process fails to produce the desired results.
Thus, another critic claims the current Court is deemed to have rogue status because it “acted under conservative control, as if it stands above the constitutional system, unaccountable to anyone other than itself.” But the Court by design is not supposed to be “accountable” to the political process.
Justices don’t face elections precisely so that they can be an independent third branch. They are free to protect minority rights and serve as a check against populist excesses in the democratically elected branches.
In return for their independence, judges bear a solemn responsibility to follow the Constitution. Any other course leads to government by black-robed tyrants not subject to any checks or balances.
In our cancel culture, justices have been seriously threatened with physical harm. Leftist politicians have proposed structural reforms like packing the Court, blowing it up, or ignoring it. But these are dangerous threats to the rule of law.
Those unhappy with the current Court’s decisions should utilize the traditional means available to effect change. Amend the Constitution, change the laws, appoint new judges when the time comes.
An independent judiciary is a hallmark of all successful democracies. Attempts to punish and threaten judges for their decisions is the real threat to our republic.
Dr. Thomas Patterson, former Chairman of the Goldwater Institute, is a retired emergency physician. He served as an Arizona State senator for 10 years in the 1990s, and as Majority Leader from 93-96. He is the author of Arizona’s original charter schools bill.
