Discrimination by Businesses

Religious Freedom Confers No Right To Discriminate, AU Tells Federal Appeals Court

  Rob Boston

The coronavirus epidemic continues to dominate the headlines. But there are other things going on, and Americans United continues its work to defend the separation of church and state in several important ways.

Yesterday, for example, AU’s Legal Department filed a friend-of-the-court brief with a federal appeals court in a case from Colorado concerning a business whose owner insists that her religious beliefs give her the right to deny services to members of the LGBTQ community.

Many shops and businesses across the country are closed now, but in some states, they’re starting to reopen. As they do so, we’re going to see a resurgence of the dangerous assertion that religious freedom can be a vehicle for discrimination.

The case in question deals with a firm called 303 Creative that provides website and graphic design services. The owner intends to make money designing wedding websites for the general public. On 303’s website, she wants to post a notice reading, “As a Christian who believes that God gave me the creative gifts that are expressed through this business, I have always strived to honor Him in how I operate it. Because of my faith, however, I am selective about the messages that I create or promote – while I will serve anyone I am always careful to avoid communicating ideas or messages, or promoting events, products, services, or organizations, that are inconsistent with my religious beliefs.”

What the owner is saying through this fancy verbiage is that she won’t provide wedding websites or other services for same-sex couples. This runs afoul of the Colorado Anti-Discrimination Act, which protects people from businesses engaging in discrimination.

The case has an unusual wrinkle: 303 Creative has never made such a website for anyone, let alone been asked by a same-sex couple to build them a website. The owner and her attorneys at Alliance Defending Freedom, a Religious Right legal group, are suing based on the assumption that sooner or later, someone will ask her to provide a service she does not want to provide.

AU’s brief, which was joined by 14 other religious and civil rights organizations, addresses this aspect of the case, calling the lawsuit “premature and nonjusticiable,” but it goes on to make it clear that what the business is seeking is not religious freedom – it’s the right to subject others to harm by discriminating against them.

The First Amendment, the brief asserts, “forbids granting 303 a religious exemption so that it can discriminate against same-sex couples. For when government makes third parties bear costs, burdens, or other harms associated with exempting religious exercise from a law, it impermissibly favors the benefited religion and its adherents over the rights, interests, and beliefs of the nonbeneficiaries. The religious exemption sought by 303 would do exactly that, by elevating 303’s religious views over the equal civil rights of LGBTQ people.”

The rights of many Coloradoans are at risk if 303’s view prevails, the brief argues.

“The sweeping exemption for religiously motivated discrimination that 303 seeks so that it may deny equal service to same-sex couples would necessarily also permit businesses to deny service to people of the ‘wrong’ religion (or race, or sex, or any other characteristic protected by the Act),” says the brief. “A ruling in 303’s favor would therefore undermine, not strengthen, religious freedom by impairing the ability of the people of Colorado to live as equal members of the community regardless of faith or belief.”

Religious freedom is a precious right, but it should never be pressed into the shabby service of discrimination. Americans United will continue spreading that message during this pandemic and afterward.

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