As the Supreme Court of the United States (SCOTUS) begins its annual session this month (the “October Term 2022”), it’s difficult not to think of it as a kind of “morning after”. The court ended “October Term 2021” with its most momentous decision in nearly 50 years, Dobbs v. Jackson Women’s Health Organization, spawning a summer of rejoicing or threats of recrimination, depending on the side one takes on the abortion issue. After Dobbs—which overruled the 1973 Roe v. Wade decision and returned abortion policy to the States—proponents of protecting unborn human life hailed the Court for its courage and legal principle in correcting an egregious error even in the face of threats to the safety of the Justices. Proponents of abortion, on the other hand, threatened legislative recrimination and harassed the Justices who voted in the majority in Dobbs. All of which makes the start of the new Term feel something like trying to get one’s day in order the morning after a hard night out.
But, as it does every year, the Court, under the leadership of Chief Justice John Roberts, began the new term on the first Monday of October in its usual sober, workmanlike manner. As SCOTUS begins to consider a new docket of cases, it is appropriate to consider Dobbs as more than a decision about the discrete legal issue of abortion. Rather, Dobbs might be seen as a proxy for how this Court will continue to review cases and make decisions. Dobbs sent a clear and unambiguous signal that this Court will not pretend to see things that do not exist nor usurp the authority properly apportioned to the States or to individual citizens. Dobbs signals that this version of SCOTUS will not shy away from vigorously protecting the prerogative of American citizens to make law through their representatives, consistent with the moral agency of individual persons.
At least one important case before SCOTUS will test my hopeful prognosis. The Court has accepted for review the case of 303 Creative v. Elenis, a decision which will have broad implications for the freedom of persons from being forced to make art or other creative content that violates their moral or religious beliefs. At issue in 303 Creative is a law in the State of Colorado that compels artists and craftsmen to create controversial content (albeit selectively) even if that content violates the persons’ moral scruples. Lorie Smith is the owner of a web design firm (303 Creative), which creates websites for weddings. A now common feature of American weddings, the sites provide information about the engaged couple, wedding date and locations, gift registries, photographs, and other information related to the nuptials.
Smith does not want to create websites for same-sex weddings, because it would violate her belief that authentic marriage is limited to a union of one man to one woman. She does not want to be forced to say things she believes to be false. But rather than to wait to be sued (as she surely would have been), Smith proactively filed suit, contending that the Colorado law prospectively violates both her right to free speech and exercise of religion. SCOTUS declined to address the religious freedom question but accepted the case to determine whether Colorado may legally compel Smith to say things through her website that she believes are false.
If the facts of this case sound familiar, it is because it tests the same Colorado law that was before the Court in the 2018 matter of Masterpiece Cakeshop v. Colorado Civil Rights Commission. In that case, SCOTUS ruled in favour of cake artist Jack Phillips for his refusal to make a cake celebrating the “wedding” of a same-sex couple. But the Court’s ruling was so narrow and fact-specific, that it is of little precedential value. The Court ruled in Phillips’s favour on the sole grounds that a Colorado Civil Rights Commission member demonstrated animus against Phillips by some intemperate things that the commissioner said about religious believers. But the Court did not rule on the constitutional legitimacy of the Colorado law, leaving Phillips vulnerable to another case being brought against him. And sure enough, that is precisely what has happened.
This time, Phillips has been sued for refusing to create a cake celebrating the purported “transition” of a person from one gender to another. While that case is being litigated in inferior courts, 303 Creative will be decided. If the Court rules that Lorie Smith cannot be compelled to say false things, it will almost certainly inure to Phillips’s benefit, leading to the dismissal of the vexatious litigation against him. Even more broadly, a favourable case in 303 Creative will be a clear signal that American citizens cannot be compelled to make art or engage in other creative endeavours that express moral conclusions that they believe to be false. This would be a win for everyone, including even those who are hostile to Smith’s and Phillips’s religious beliefs.
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