Free Exercise jurisprudence is a complete mess right now. Since Employment Division v. Smith, lower courts have generally upheld laws that are “neutral” and “generally applicable” toward religion. Supposedly, that rule creates clarity and consistency. Unfortunately, that’s never really been true, as the recent COVID-religious-accommodation cases highlight. What’s underreported is these same difficulties from the COVID-19 cases appeared already in the context of creative professionals. So the Supreme Court can bring much needed clarity to all its religious jurisprudence if it grants 303 Creative v. Elenis—which asks whether Colorado law can force a web designer to create websites celebrating same-sex weddings in violation of her religious beliefs.
COVID and Comparability
After the Smith decision, courts began to analyze when laws were neutral and generally applicable. Smith itself didn’t give much guidance. Meanwhile, most laws contain exemptions of some sort. So which exemptions undermined neutrality and generally applicability?
Take Church of the Lukumi Babalu Aye v. City of Hialeah. There, a Florida city banned some animal killings to supposedly protect public health and prevent animal cruelty. But the city’s laws exempted other animal killings (like killing animals for food and exterminating bugs) and exempted some disposal of animal carcasses (like restaurants disposing of trash) that posed public health risks. In effect, the laws mostly burdened adherents of Santeria, a religion that performed ritual animal sacrifices.
When the Santaria sued, the city said those exempted activities were just different than the Santaria sacrifices. After all, said the city, killing animals to eat and exterminating bugs are important—one might say essential—whereas ritual sacrifices are not. The Court didn’t buy these ipse dixits: the exemptions made the laws not neutral or generally applicable.
Fast-forward to COVID. Governments began issuing shut-down orders, imposing limitations on some “non-essential” entities (like worship services) while exempting other “essential” services (like casinos, grocery stores, and liquor stores). And that raised the same legal question from Lukumi. Was the exempted secular conduct similar enough to the regulated religious activity to make the law not neutral or generally applicable? How do you determine whether it’s similar enough? What similarities count and what don’t?
And the Justices struggled with this inquiry. At first, the Court seemed willing to defer to the state’s ipse dixit—that casinos, grocery stores, and laundromats are different from churches when it comes to COVID and could be exempted from certain COVID regulations unlike churches. Trust us. Then, after Justice Amy Coney Barrett took her seat, things changed. Campgrounds, garages, and train stations were now comparable to worship services; so laws could not legitimately regulate the latter while exempting the former.
We appeared to reach consensus in Tandon v. Newsom. There, the Court closely scrutinized distinctions between exempted and non-exempted conduct, saying comparability between these activities “must be judged against the asserted government interest that justifies the regulation at issue.” But alas, with the Court denying relief for unvaccinated healthcare workers from Maine and healthcare workers from New York, we’ve seen a rerun of the same debates—this time with vaccine mandates that make medical exemptions but not religious ones.
Through it all, lower courts, lawmakers, and religious adherents are left in the lurch. No one can seem to agree on what’s comparable and what’s not, which exemptions count and which don’t.
Cakes, Creatives, and Comparability
But this confusion wasn’t hard to predict. We got a preview in Masterpiece Cakeshop. There, the Court dinged Colorado for forcing cake designer Jack Phillips to create a cake celebrating a same-sex wedding while allowing other cake designers to decline creating cakes with religious messages critical of same-sex marriage. For the majority, the permitted cake declines were so similar to Phillips’ decline that Colorado’s differential treatment of them indicated Colorado’s religious hostility. Justice Elena Kagan and Justice Neil Gorsuch in concurrences then debated whether Colorado could possibly treat these two categories of decline the same. Their disagreement came down to whether cakes celebrating same-sex weddings were comparable to cakes celebrating opposite-sex weddings.
Here is where 303 Creative comes in. Taking the same law from Masterpiece, Colorado in 303 Creative is requiring web-designer Lorie Smith to create websites celebrating same-sex weddings in violation of her religious beliefs—even though Lorie won’t create those websites for anyone, whether gay or straight. Full disclosure: I and other attorneys at Alliance Defending Freedom represent Lorie Smith and 303 Creative. Meanwhile, Colorado allows secular artists to decline to create artwork they won’t make for anyone—such as websites saying “God is Dead.”
But this creates an enormous comparability problem. Colorado is treating Lorie and her religious objection worse than secular speakers and their secular objections.
The 10th Circuit tried to ride to the rescue, saying these declines aren’t comparable. While Colorado lets secular speakers decline websites with religious content requested by religious speakers, it still requires both secular and religious speakers to create websites celebrating same-sex weddings. Colorado’s exemptions for topics other than same-sex weddings don’t undermine Colorado’s interest in stopping only sexual-orientation discrimination.
But that response just rigs the system. It’s like officials saying their interest is in stopping COVID-spread just in churches and nowhere else. If that’s the goal, of course the government can regulate churches and exempt secular entities. But that’s not the state’s real interest. Its real interest is stopping COVID-spread everywhere.
Similarly with 303 Creative. Colorado’s interest is not stopping just sexual-orientation discrimination but in stopping discrimination based on many protected categories. And if Colorado can allow people to not speak religious messages offensive to them without undermining its goal of stopping religious discrimination, Colorado can allow people to not speak messages celebrating same-sex marriage without undermining its goal of stopping sexual-orientation discrimination. Let’s rephrase positively. Lorie doesn’t discriminate against anyone; she declines certain messages for everyone, just as Colorado allows other speakers to decline other messages they will not speak for anyone. There is no reason to single Lorie out.
In this respect, 303 Creative is a very easy case. The Supreme Court already explained that the same law was problematic when inconsistently enforced the same way against Jack Phillips. The inconsistency is even more glaring now with Lorie. Yet the 10th Circuit still blessed that inconsistency, calling Colorado’s “pro-LGBT gerrymander” both “inevitable” and permissible.
That tells us something is quite wrong with current caselaw. If the lower courts cannot figure out what’s comparable in an obvious case when the Supreme Court gave them directions already, the Supreme Court needs to give clearer directions. Or perhaps even better, the Court should overturn Smith and provide a better roadmap altogether. Hearing the 303 Creative case provides the perfect vehicle to do either.
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