Adventist Forum, et al., Submit Supreme Court Brief Opposing GC Position

New York, August 19, 2022 – Acting as pro bono counsel, Curtis filed an amicus brief in the U.S. Supreme Court in 303 Creative v. Elenis, a case in which the Court will consider whether a business that offers custom wedding websites to the general public may use free speech as a justification for refusing to sell those websites to same-sex couples in violation of anti-discrimination laws. The lead amici are Adventist Forum, a nonprofit committed to promoting conversation on contemporary issues within the Seventh-day Adventist Church, and Seventh-day Adventist Kinship International, Inc., a nonprofit dedicated to creating a safe social and spiritual community for current and former LGBTQ Adventists and allies. Both organizations include members who believe that marriage—whether of opposite- or same-sex couples—is sacred and that respecting the right of same-sex couples to marry is consistent with religious freedom.


This is a companion discussion topic for the original entry at http://spectrummagazine.org/node/11948
3 Likes

Is the GC involved in this case in any way? I realize that Spectrum is here taking a position that clashes with that taken by the GC. I feel proud of Spectrum for doing this, and grateful for it yet again in a special way. May the Lord bless your efforts.

8 Likes

I was asked to post a comment, so these are my observations:

  1. This is a Free Speech case, not a Free Exercise case. The hypothetical facts pertaining to compelled design of a wedding website for a gay couple are similar to the real facts in the Masterpiece Cakeshop case involving compelled design of a wedding cake for a gay couple, but the Masterpiece Cakeshop case is a Free Exercise case. There is a large corpus of Free Speech cases in support of religious liberty.
  2. The grant of the cert petition is limited to the following question: Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment. It’s a good thing, in my opinion, that the Court chose not to make this a Free Exercise case, as that jurisprudence has been mangled by the Court in recent years (again, just my opinion).
  3. This is a contrived case. The petitioner has never designed a wedding website, does not offer such designs, has never been asked by a same-sex couple for that service, has not been charged with a complaint or investigated by the State of Colorado or punished. She has merely said that she has an interest in designing wedding websites but feels she will be harmed by the State if she does not design wedding websites for same-sex couples. The federal district court held there is no standing, but the 10th Circuit Court of Appeals said there is standing and ruled against her on the merits. If the US Supreme Court wants a graceful exit, finding no standing would suffice.
  4. The petitioner is represented by Alliance Defending Freedom, which has enormous political clout with the Court. Alliance Defending Freedom has been certified as a hate organization by Southern Poverty Law Center.
  5. Whenever I review the briefs, including amicus briefs, filed with the Court in a religious liberty case, I look for Douglas Laycock’s name. He’s the leading authority in this area. But his name is nowhere to be found, except in other briefs’ citations to what he has written in the past. If he were to submit an amicus brief on behalf of an interested client, that would cause a significant impact in the case.
  6. The United States has submitted a brief in support of Colorado and that brief to date is the last in the queue. The most important amicus brief submitted in any case before the Court is the one submitted by the United States. The brief persuasively argues that incidental burdens on speech by public accommodations laws are permissible. For example, an innkeeper cannot refuse to rent a room to a black couple on the grounds that certain speech (telling the black couple where their room is, explaining the specials offered in the restaurant, etc.) is compelled. Although there are hypothetical circumstances in which the designer might be forced by a same-sex couple to express certain speech that is non-incidental and repugnant to the designer, that would not occur if the website designed was plain vanilla. It’s important to note that what the petitioner is seeking is a categorical exemption from the Colorado law, irrespective of what the wedding website would look like.
  7. Website designers are artists? Well, they certainly think so. The United States has masterfully avoided challenging that assertion by merely talking about wedding websites that are not really artistic. What is good about the cert question is that if the Court rules in favor of the petitioner, the ruling might be narrow enough to cover only “artists” and not place in jeopardy our public accommodations laws. (And you will notice, the United States has masterfully avoided a direct challenge to lack of standing by merely talking about the categorical exemption sought before any wedding website has been designed).
  8. The State of Colorado should win this case. If this were the Rehnquist Court, the petitioner would lose 9-0. But the right-wing justices of the Roberts Court are not conservatives but radicals. And they have manipulated and distorted findings of fact in other cases in support of rulings. In fairness, there are various splits of authority in the lower federal courts since Masterpiece Cakeshop and the Court may want to use this case (hypothetical as it is) to resolve those splits. Whether the Court does so or fails, and in so doing, prolongs the confusion remains to be seen.
    Take this comment with a grain of salt, as the First Amendment is not my area of expertise. I will post a comment about the ecclesiastical implications/repercussions of the amicus brief filed by Adventist Forum in due course.
8 Likes

Isn’t that the truth!

3 Likes

Here we are again in this quandry - the hetero family with children unit is in a frail condition in our society, and LGBQT+ individuals are in a precarious state as well, buffeted by condemnation, bullying and insecurity. How does our Lord come to this place? With love.

To put a disclaimer on the website barring same sex clients seems harsh. To feel uncomfortable to the point of declining to get involved with the same sex wedding ceremony is also freedom of thought, the most fundamental right of all. Let the poor website creator quietly turn down the job without hurting feelings with explicit condemnation and censure, either on them for declining, or on the same sex couple for asking.

Well put and legally sound in my unlawyerly view. I really appreciate your legal analysis of this case, and since it is “contrived” as you say, this could be one of those “bad cases make bad law” fumbles that this Court is on a tear in doing with “free exercise” jurisprudence.

I, too, have been awaiting something from Laycock, which may still be in the works, and other attorney’s specializing in the same field (Lund, Berg, Lupa, Tuttle, etc., unless I have missed them). I am on a blog these and others are part of, and they have yet to really get into this case.

In the recent decision (Lowe v Mills) by Maine’s Supreme Court over vaccination exemptions for which the state of Maine’s law was upheld (that is, only vaccination exemptions in healthcare for the state is medical), Mr. Laycock opinion was, “Clearly right result, wildly wrong reason.” I think Laycock meant for the court to focus on the fines and penalties healthcare institutions would incur if they allowed a religious-philosophical accommodation was wildly wrong as the basis, rather it should have been the issue of protecting others’ lives threatened by the virus as the basis. There may be legal nuance I missed in his remark but knowing Laycock fairly well as an observer of his work I think I am getting close.

1 Like

I wonder what is so difficult about respecting a business owners right to say “no, but thank you for the opportunity”?
Is it possible that one person views that their freedom should be imposed on another, which in turn removes the other persons/business’ freedom?
I have learned that some repair shops turn away a repair job on my car whereas others will accept the job. I have never been upset about it because it is their right to accept or reject jobs. Doesn’t Spectrum do the same with comments?

2 Likes

The issue revolves around “why” they are not served. For example, why were repair jobs turned away for which you sought? Was it because of your gender? Your race? Your religion? Your ethnicity? Or, were you turned down because the shops felt it was over their heads to do the repair? Or the shop was too busy? Or the shop didn’t work on certain models of cars? Or, they simply just didn’t want to do it? Shops can turn down service except if they do it toward protected classes of gender, race, religion, and ethnicity.

At issue here is (in some states) a clash of protected rights. The right of exercising religious beliefs verses the rights of gay individuals to be served. Whose protected right wins: religion or same sex? And, by the way, the Court has not answered that question on religion. In the cake baker’s case the Court side stepped answering the question by finding a technical transgression in the lower adjudication of the case, and the present case will not answer a religious exercise question but is addressing a freedom of speech claim to shield a religiously based objection.

I am disappointed that the brief gives religious organizations a pass to discriminate by claiming it would “never” compel a tax-exempt religious organization to do something in the public interest. If a case were to come up requiring churches to rent space for same sex weddings when it allowed opposite sex weddings I’m sure we’d move to compel them to treat all sides equally.

Freedom of speech and religion doesn’t mean that businesses should not be required to do things that they disagree with religiously. They should be compelled by the state to make quality products for same-sex couples and not hide behind the First Amendment. Too much freedom has been asserted that simply shouldn’t exist for discriminators.

3 Likes

Notably, churches currently are compelled to do many things in the public interest. For example, they must build their church building according to code - so they don’t fall down on people. Labor laws are another example, though the SDA church regularly tries to weasel around them. And gets caught. And loses in court.

Exactly! For example, a business that open to the public can’t put up a “Christians Only” sign because they don’t like, well, everyone who isn’t Christian. That’s no different than a “Whites Only” sign.

I still don’t conceptually understand how making a ‘gay’ wedding cake or a ‘gay’ website is speech in the first place. It’s not the speech of the maker or the recipient. It doesn’t seem to me to be speech at all. Calling it speech seems to me to be a sort of corruption of the intent of the law.

2 Likes

I’m wondering why your post has so irritated me. Perhaps it was the accusation of “weaseling” against the Adventist church without giving examples. Seems pretty mean.

Then there’s the idea that not wanting to participate in someone’s celebration is such a threat. Probably you are right about the free speech argument. It does seem weak, but the stronger argument is the vendor’s right to privacy.

In any case, I doubt that this happens often enough to create a big problem for gay couples. To me it’s a tempest in a teapot. How about worrying much more when a Black professor’s house is appraised $250,000 lower when he shows the appraiser around in person and has his Black art and family pictures showing than the same house is appraised when his white colleague shows the place with the art removed?

Now THATS something for Adventists to get worked up about. That’s something that seriously impacts millions of Americans who have already gotten the short end of the financial stick.

4 Likes

If only. We should have long ago gone full in on social justice, including full rights for LGBTQ+ individuals. Gay couples should be able to access all the same services and privileges of heterosexual couples, and experience no inconvenience whatsoever. Why should it be okay to inconvenience a couple just because they are gay? Christians should be the last to advocate such discriminatory behavior.

9 Likes

Here are several examples:

Until long after the law said otherwise, the church officially paid a pastors wives about 1/2 the wage a regular church employee would get for the same Job. My grandmother worked as a grade school teacher in the Adventist church school system for many years and received abjectly paltry wages because my grandfather was a career Adventist pastor. In her later years, she said, “That wasn’t right. They did a lot of things like that back then they shouldn’t have.” She was right.

There’s the famous MeriKay case, where the church, after refusing to follow the law, was taken to court by Federal government - the EEOC -, lost, and “had to” pay $600,000 in back wages to women who had worked at the Pacific Press. This was in 1979, and for violating TITLE VII of the Civil Rights act of 1964, and the church went down kicking and screaming and whining they couldn’t possibly pay women as much as men, because they couldn’t afford to. Reportedly, the church’s lawyers actually stated, in court, that the church couldn’t pay women the same as men at the Pacific Press because their business model wouldn’t support it and they’d go out of business. The judge was so infuriated by this that he threatened the lawyers with contempt of court, or something similar, if they ever made such an argument again. Basically, for wasting his time with an argument that made no legal sense. Amateur hour, at its worst.

Then there’s the current state of affairs in the Central California Conference (CCC). As it turns out, there are a bunch of special allowances for clergy within the law. There are many labor laws that don’t apply to clergy, and that sort of makes sense. Think of a priest or monk or nun, who work for the church - are “employees” - and may receive only a paltry allowance and room and board, basically for life. The Adventist church officially states that it has no clergy. But, at the same time they tell the government that they do, in order put SDA Pastors into that legal bucket, so that they get the exemptions allowed for clergy. These exceptions might apply, and they certainly benefit the church, both financially and because then they don’t have follow a bunch of rules that they don’t want to follow.

  • Within this context, if that wasn’t bad enough, the CCC has put teachers into this category, claiming that they are also clergy. In order to support this claim, they force the teachers to go to Fresno and attend a yearly training for missionary pastors. Presto! All the teachers are now missionary pastors. Even though, of course, they’re predominantly women and the CCC wouldn’t ordain them as pastors if they asked. For one thing, they don’t have the required education, and also most are missing that magical Y chromosome that’s so important for a pastor to have.
  • And finally, the kicker: Because teachers are clergy, supposedly, the CCC can (and does) require them to pay tithe to the CCC (not any other conference, mind you) with the promise that if they don’t they will be fired. And, they actually follow up on that and track the teachers! There was one case where the teacher’s husband lost his job and in order to pay their rent in Silicon Valley - which was probably more than her salary - she didn’t pay her tithe. She was promptly threatened with losing her job, even thought the CCC was aware of the situation. They didn’t care. It was more important to them to get their money than it was for her to continue to have a place to live.

For a rather balanced review of the SDA church and the law, see Seventh-day Adventists and the U.S. Courts: Road Signs Along the Route of a Denominationalizing Sect. Note the section “Personal Suits against the Adventist Church and its Institutions”, which discusses the Merikay Silver and related cases at some length, and touches on special treatment for clergy, which apparently the church has abused in the past more than once. I found it quite enlightening.

4 Likes

I would assume I would like to know why I am turned away if I was in the customers shoes, such as a car repair, but a social issue does not seem to be on the same level and requires respect instead of a simple knowledge of ability. If a business owner wishes to value a certain social belief then I ought to respect his or her’s personal freedoms. If I can’t respect that then I must have the problem, not the business. Seems logical to me. What do you think?

I have seen diametrically opposing points presented on this website over and over. So the answer seems to be yes. Spectrum does support comments from all sides, provided that it isn’t vulgar or harmful.

I feel that the web host is obviously discriminating…but, why would a gay couple want to be a part of that kind of web site? I would be inclined to try and let the public know that this web host discriminates. Then the bigots will be the web host’s only clients.

2 Likes

Well, that’s a good question and for the individual gay couple, they probably wouldn’t.

But equality laws, laws against discrimination of protected classes of people, are designed so that those classes of people are not effectively relegated to second-class citizenship. One way that can happen is when businesses open to the public refuse to serve part of the public - because of their protected class.

We could similarly ask, “Why would a black family want to move into a white neighborhood?” or “Why would a woman want membership in a male-only country club?” or “Why would a woman want to be a lawyer or a doctor or an accountant? Those are positions for men!” or “What’s wrong with making black people sit in the back of the bus? After all, everyone gets to their destination at the same time.”.

See the problem?

2 Likes

So we have laws that prevent, sometimes, discrimination in the housing market, public schools, etc, but you think that public business should be able to discriminate?? If a public business can, then why shouldn’t the private home owner be able, etc etc???

Have you thought out your position and how it doesn’t compute, logically?

2 Likes

Believe me, The problem wasn’t lost on me from the start…I am just being rhetorical about how disgusting bigotry is. You’re absolutely right that someone needs to make the haters in this society, at minimum, not be allowed to spread their hatred to those that they despise, and often that hatred comes from their religion. That is the disgusting part. Christians and some other world religions are some of the most hateful people on the planet. If I thought God was actually that way, I would have nothing to do with Him. But I know my God isn’t that way.

3 Likes

I think the word discriminate is a very kind word to use. The reality is it is hateful, belittling, and narcissist behaviour. The discriminators actually think they are better than those they discriminate against. And I know many SDA’s that feel that way about the LGBTQ community. They are going to have a rude awakening when they find themselves surrounded by goats when Christ comes back.

5 Likes

Yes, it’s a very neutral legalese way to describe the issue, and unfortunately the word has multiple meanings.

Technically, we all discriminate all the time, and it’s important for our survival.

One definition is: “recognize a distinction; differentiate”

  • “babies can discriminate between different facial expressions of emotion”

There’s also: “perceive or constitute the difference in or between.”

  • “features that discriminate this species from other gastropods”

But then there’s: “make an unjust or prejudicial distinction in the treatment of different categories of people, especially on the grounds of race, sex, age, or disability.”

  • “existing employment policies discriminate against women”

See Discriminate Definition & Meaning - Merriam-Webster

1 Like