"Fairness for All" appears to be winning after all
Today's Supreme Court decision on speech, religion, and LGBTQ rights, read alongside a landmark 2020 decision, signals a desire for legal compromise on deep differences
I’m leaving in a few hours for Little Rock, where my youngest son will be playing for the Siloam Springs 7U All-Stars in the Arkansas Babe Ruth League State Tournament.1 So I’m grateful that the U.S. Supreme Court released its final two decisions from this year’s term this morning: One on President Biden’s student loan cancellation program (the Court rejected the program), and one on the inevitable tensions between speech, religious convictions, and LGBTQ rights.
The latter case, 303 Creative v. Ennis, involves a website designer in Colorado named Lorie Smith. Smith hopes to expand her business into designing wedding websites, but she also has convictions that would deter her from designing websites for same-sex weddings. She wants to include a statement on her website detailing her objections, but this would violate Colorado’s Anti-Discrimination Act. Smith, along with the Christian legal powerhouse Alliance Defending Freedom, sued.2
In a 6-3 decision authored by Justice Gorsuch, the Court ruled for Smith. Gorsuch’s opinion suggested that Colorado’s program amounted to a system of compelled or coerced speech, where an actor would be required to endorse a message with which she fundamentally disagrees in order to participate in commerce. Citing language from the Court of Appeals’ decision, Gorsuch wrote that Colorado’s logic would require a Muslim artist to create a Zionist message, an atheist artist to create a Christian message, and a gay artist to create a bigoted, anti-gay message.
It has been five years since the Supreme Court’s decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission, another case involving a Colorado business objecting to creating content for same-sex weddings. That case’s decision was more narrow, holding that state’s administrative process was unacceptably biased against a Christian baker who had turned away a request to bake a custom cake for a same-sex couple.
While conservatives hailed Masterpiece as a landmark precedent for religious freedom and expression, 303 Creative is far more important in confronting the merits and substance of that dispute while rendering a judgment squarely in their favor. But 303 Creative also shows how the legal balancing act known as “Fairness for All,”3 though abandoned by Congress, is finding favor at the Supreme Court.
In the 2020 case Bostock v. Clayton County, the Court—in an opinion also authored by Justice Gorsuch—extended protected class status under the Civil Rights Act to sexual orientation and gender identity. Not surprisingly, the decision was sharply critiqued by social and religious conservatives as a disaster for religious liberty. While encouraging Christians to reject fear and embrace our hope in Christ, Andrew Walker wrote, “that should not stop us from being honest about the bleak future awaiting religious liberty.”
In an essay for Christianity Today, I took a different tack. Specifically, I argued that Gorsuch’s Bostock opinion was the beginning of an effort to realize “Fairness for All” via the courts rather than through the legislature. Consider this:
In the Bostock ruling, [Gorsuch] writes: “We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution.” He explicitly says that religious liberty issues will likely come up for other employees in other cases and there will need to be other rulings.
If this isn’t foreshadowing cases like 303 Creative, I’m not sure what it is. I continued:
While Fairness for All has not fared well in the legislative process, it is not difficult to see how the basic ideas of the proposal could be enacted via a series of judicial rulings, especially under the current composition of the court. Legal protections for LGBT Americans balanced with religious liberty exemptions may win the day after all.
What we’re seeing in today’s 303 Creative decision is not an invitation to invidious discrimination against LGBTQ Americans, but rather an effort to balance the importance of civil rights for same-sex couples with the concerns of Americans religiously opposed to same-sex marriage. In order to see what the Court is doing on these inevitable tensions, must read decisions like Bostock and 303 Creative together rather than as independent and contradictory rulings.
Fairness for All did not find an audience in Congress.4 But, if Bostock and 303 Creative are any indication, it appears to be finding support with a majority of the Supreme Court.
Go Panthers.
Strangely, The New Republic reports that Smith was supposedly contacted by a man, Stewart, in 2016 about designing a wedding website for him and his partner, Mike. But that report suggests the original contact was fabricated, as “Stewart” later said he was married to a woman at the time and maintains he did not submit the request.
Simply put, Fairness for All refers to codifying certain civil rights protections for LGBTQ Americans while also providing religious exemptions for individuals, businesses, and institutions concerning employment, services, and more.
The 2022 Respect for Marriage Act incorporated some elements of Fairness for All into its legislative text, but these provisions were pared down from broader proposals.