The mission of Issues in Perspective is to provide thoughtful, historical and biblically-centered perspectives on current ethical and cultural issues.

The First Amendment of the United States Constitution, ratified in 1791, begins: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech . . . .”  In other words, there will be no state (i.e., “established”) religion in the US, while the United States will protect and guard the “free exercise of religion.”  Even a cursory reading of this Amendment indicates tension and the need to balance prohibiting the Congress from establishing a specific religion with the protection of individual citizens’ free exercise of religious beliefs.  Over the past 60 years, the Supreme Court, for example, has rejected prayer in public schools, the reading of the Bible in public schools, and even organized prayers led by students at high school football games—all as a violation of the First Amendment’s “establishment of religion” clause.  In addition, the major precedent for the Court in this area has been the 1971 Lemon v. Kurtzman case, which established what became known as the “Lemon test:”  “Whether the challenged government action has a secular purpose, whether its primary effect is to advance or inhibit religion, and whether it fosters excessive government entanglement with religion.”  But, in using the Lemon test, the Court ignored the other part of the First Amendment, the “free exercise of religion.”  The 2022-23 session of the Supreme Court continued to restore a healthy balance between the two operative clauses of the First Amendment dealing with religion.  It also clarified the freedom of speech when it comes to religious expression.

• At the end of June 2023, the Supreme Court handed down its decision in the 303 Creative LLC v. Elenis case.  Some background on the case:  The case focused on the conflict between LGBT rights in public accommodations and First Amendment to the United States Constitution.  Lorie Smith is a Colorado website designer, running her business as 303 Creative, LLC, who wanted to move into making wedding announcement websites. Smith consistently argued that it is against her Christian faith to make sites for non-heterosexual marriages. She planned to post a notice on her business website to alert users that she would not be willing to serve members of the LGBTQ community, and, instead, would refer members of the gay community to other potential designers that could provide services to them.  Before posting the notice, Smith discovered that such a notice would violate the Colorado anti-discrimination state laws that were amended in 2008, which prevent public businesses from discriminating against gay people as well as making statements to that effect.  Smith, represented by the Alliance Defending Freedom, sued Colorado in 2016 in the United States District Court for the District of Colorado, seeking to block enforcement of the anti-discrimination law. The district court waited for the result of the 2018 Supreme Court case Masterpiece Cakeshop v. Colorado Civil Rights Commission, which dealt with the same anti-discrimination law. As Masterpiece was ruled on narrow procedural grounds, the district court ruled against Smith in 2019. At that time, Colorado had not investigated Smith and there was no evidence that she had engaged in discrimination.

Smith appealed to the United States Court of Appeals for the Tenth Circuit, which upheld the district court decision in a 2–1 ruling. In the majority ruling, the Tenth Circuit held the anti-discrimination law satisfied strict scrutiny under the First Amendment to the United States Constitution. Chief Judge Timothy Tymkovich dissented in the Tenth’s decision, writing “the majority takes the remarkable — and novel — stance that the government may force Ms. Smith to produce messages that violate her conscience.” Smith filed a petition for a writ of certiorari, which the Supreme Court granted in February 2022. While the petition asked that Employment Division v. Smith be overruled, the Supreme Court limited the case:   Smith had asked the US Supreme Court to consider her case based on her rights under the free exercise of religion clause and her freedom of speech rights.  The Court, however, agreed to decide only “whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.”  As the Wall Street Journal editorially observed: “Ms. Smith only wants to sell websites.  Unlike physical public accommodations, such as hotels and restaurants, there is no captive market on the internet.  Coloradans can choose from countless different website designers, most of who would happily serve gay weddings.”

In its June 2023 ruling, the Court ruled 6-3 in favor of Lorie Smith, arguing that Colorado, through its anti-discrimination law, cannot compel Ms. Smith to lend her creative expression to causes she does not condone.  Justice Neil Gorsuch wrote that “Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.  As this Court has long held, the opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong.”  It is significant that the justices decided for Lorie Smith on free-speech rather than free-exercise grounds.  When the Court legitimized same-sex marriage as a protected right in 2015 (Obergefell v. Hodges), Justice Samuel Alito warned that the decision “will be used to vilify Americans who are unwilling to assent to the new orthodoxy.”  He went on, “I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they ill risk being labeled as bigots and treated as such by governments, employers, and schools.”  Alito was correct. The decision just handed down this June affirmed the freedom to dissent.

In our Postmodern, Post-Christian, pluralistic society, how should we think about this case?  Tish Harrison Warren writes that “Pluralism is not the same as relativism — we don’t have to pretend that there is no right or wrong or that beliefs don’t matter. It is instead a commitment to form a society where individuals and groups who hold profoundly different and mutually opposed beliefs are welcome at the table of public life. It is rooted in love of neighbor and asks us to extend the same freedoms to others that we ourselves want to enjoy . . . Millions of Americans have irreconcilable views of sex and marriage, and this is unlikely to change any time soon. The historic teaching of the Christian faith is that holy matrimony is between a man and a woman. The Roman Catholic Church still holds to this definition, as does Eastern Orthodoxy, the majority of Anglican churches worldwide and most Protestant denominations in the United States and elsewhere. A majority of Muslim and Jewish communities around the world hold a similar definition as well.”

Critics of Ms. Smith claim that what she is arguing is no different than bigoted whites refusing to serve blacks in restaurants or on buses or in hotels.  But as Warren correctly observes, “Claims of religious liberty were undeniably used as an excuse for racial discrimination. If the analogy holds between racial discrimination and declining to provide services for a gay wedding, then there is no debate to be had . . . However, the right analogy is crucial here, and correct distinctions are critical. In order to justify racial violence and oppression, white people in America and Europe essentially invented a novel theology, baptizing white supremacy. It was racism in search of an ethic. Sexual ethics, by contrast, are named and addressed in religious scriptures in specific terms. Unlike white supremacy, religious teachings regarding sex, including prohibitions on extramarital and premarital sex, pornography, lust and same-sex sexual activity have been part of the Christian faith from its earliest days. This is not an aberrant view rooted in bigotry but a sincere belief that flows from ancient texts and teaching shared by believers all over the world.”

• The Court 9-0 also affirmed the “free exercise” clause of the First Amendment in the Groff v. DeJoy case.  The primary issue in the case was whether the US Postal Service (USPS) was required to make accommodation for an evangelical Christina mail carrier who refused to work on Sundays.  The Wall Street Journal reported that “When Gerald Groff began working for USPS, Sunday shifts weren’t part of the job.  But that changed when USPS signed a deal to deliver Amazon parcels.  After receiving ‘progressive discipline’ for not working on Sundays, Mr. Groff resigned.  He sued under Title VII of the Civil Rights Act, which requires that employers ‘reasonably accommodate . . . an employee’s or prospective employee’s religious observance or practice’ unless the employer is ‘unable’ to do so ‘without undue hardship on the conduct of the employer’s business.’   The problem was that Title VII does not define ‘undue hardship.’  The result has been significant confusion.  The Groff decision clarifies “undue hardship.”  Justice Alito wrote that “undue hardship” is “shown when a burden is substantial in the overall context of an employer’s business;” stipulating thereby a fact-specify inquiry.  Alito also stressed that employers must consider several reasonable options, not merely one.  Thereby, the rights of religiously observant workers are affirmed.

In conclusion, permit me to quote again from Tish Warren:  “We need the law to act as a scalpel, not a sledgehammer. Gay people must be protected from discrimination in secular employment, housing and health care . . . We also need to ensure that religious people are not compelled to participate in an event or voice approval of a marriage they object to and that they can form churches, schools and other ministries in line with their beliefs. Churches ought not to look to the government to enforce their views of morality. At the same time, those who celebrate same-sex marriages must leave room for people who have a different vision of sexuality to work and live according to their beliefs.”  Though what the courts decide on these issues is important, the courts alone cannot teach us to be good neighbors when there are deep and profound differences.  We must not demonize or seek to dominate those with whom we disagree. We must learn to live together and wade into complex social issues with love, compassion and grace.

Jesus taught us “to love your enemies and pray for those who persecute you, so that you may be son of your Father who is in heaven.  For He makes His sun rise on the evil and on the good, and sends rain on the just and on the unjust.”  [Matthew 6:44-46 ESV]  Government will not solve this.  The courts will not solve this.  We who name the name of Christ must insist in this democratic-republic that our views on marriage and sexuality be protected under the free exercise clause and the freedom of speech clause of the First Amendment—an immense privilege of citizenship.  But we must also not advocate discrimination and oppression against those who choose differently.  The Gospel is the solution.  Jesus can transform lives, attitudes and behavior.  How we treat those with whom we disagree is the mark of the Christian.

See Nicole Ault in the Wall Street Journal (30 June 2023); Wall Street Journal editorial (30 June 2023) and (29 June 2023); Tish Harrison Warren, “Why Pluralism Matters” in the New York Times (4 December 2022).