Christian business owners are pursuing a new legal strategy to oppose laws they say would force them to use their artistic talents to promote same-sex marriage.
In one case, a graphic designer is suing the state of Colorado over a nondiscrimination law she says would impede her free speech rights if she were forced to design announcements for same-sex marriages. A separate complaint by owners of an art studio in Phoenix challenges a local ordinance on the same basis.
Both lawsuits differ from recent legal battles involving Christian business owners who had been penalized for declining to sell cakes, flowers or photography services for same-sex weddings.
Instead, these lawsuits are "pre-enforcement challenges" — complaints filed against a law perceived by a challenger as a threat to his or her rights before the law has been enforced.
Both lawsuits come as conflict intensifies over the intersection of civil rights for gays and lesbians and the rights of religious freedom for Christian business owners who seek exemptions from offering same-sex wedding services.
The outcomes of both cases could have important ramifications, as courts across the country grapple with this difficult balance.
"All across the country, we are seeing the government punish private citizens for failing to agree with the government’s views on same-sex marriage," said Jeremy Tedesco, an attorney with Alliance Defending Freedom, a public interest law firm which represents both plaintiffs in the pre-enforcement challenges. "We hope this lawsuit, and others like it, will ultimately protect the right of Americans to peacefully live and work according to their faith without fear of unjust punishment by the government."
The free speech defense
ADF, on behalf of Lorie Smith, owner of 303 Creative, sued Colorado in U.S. District Court in Colorado in September, alleging the state's Anti-Discrimination Act impedes her free speech and precludes her from sharing her faith-based objections to gay nuptials, according to a statement from the law firm.
Smith's challenge follows that of the owners of Brush & Nib, an art studio in Phoenix, which also retained ADF for its pre-enforcement challenge to a local nondiscrimination ordinance.
In that case, owners Joanna Duka and Breanna Koski argue the law compels them to create artwork for same-sex weddings which they say violates Arizona's Free Speech Clause and Free Exercise of Religion Act.
"The pair willingly serve and will create art for anyone, but they cannot create art promoting certain messages and ideas. For example, Brush & Nib doesn’t create art that demeans others, promotes racism or objectifies the female body," attorney Jonathan Scruggs wrote in an Arizona Republic op-ed earlier this summer. "They also do not create art that violates their Christian beliefs about marriage."
A trial court ruled against Duka's and Koski's request for an order preventing enforcement of the ordinance while their lawsuit moves ahead. The business appealed that ruling in late August.
The two pre-enforcement challenge cases are among a minority that argue a free speech defense against serving same-sex weddings. Other cases around the country involving lodging and wedding services have alleged free religious exercise violations.
Currently, the most high-profile free speech case on the wedding issue involves Jack Phillips of Masterpiece Cakeshop in Lakewood, Colorado, who was found in violation of anti-discrimination laws after declining to make a same-sex wedding cake in 2012.
Phillips in July asked the U.S. Supreme Court to hear his case after the Colorado Supreme Court declined to take it up in April.
In 2014, the Supreme Court declined to hear a free speech appeal by Elana Photography that involved a New Mexico-based commercial photographer who refused to photograph a same-sex couple.
But as Supreme Court expert Lyle Denniston noted recently, the Elena Photography appeal was not based on her religious beliefs. Phillips' appeal to the high court, however, does raise that issue, which could make a difference in whether the justices decide sometime this fall to take up the case.
"This may be as good a test case as there is on its chosen issue," Denniston wrote.
Effectiveness of pre-enforcement challenges
ADF hopes to win with pre-enforcement challenges, which have been an effective legal maneuver for decades on several high-profile cases involving abortion, campaign financing and the Affordable Care Act.
"They require that there (is) a realistic possibility that the plaintiff would actually be subject to some enforcement action," said Harvard Law School professor Mark Tushnet.
He said this generally happens when a government agency announces that a policy — such as a non-discrimination law — will be enforced, or when someone has been denied service and threatens to sue.
The plaintiffs have several instances of nondiscrimination enforcement by state regulators, including Phillips' case in Colorado.
But the recent pre-enforcement challenges may also find success because they are "facial challenges," arguing that a law cannot be interpreted or enforced in a constitutionally permissive way.
"Pre-enforcement challenges are quite effective," said Rena Lindevaldsen, a professor of law at Liberty University, a private, nonprofit Christian university. "For example, the Supreme Court’s 1992 decision in Planned Parenthood v. Casey was a facial challenge brought by physicians and abortion providers. That decision entrenched Roe v. Wade’s conclusion that there was a constitutional right to abortion."
She also noted that the "2010 Citizens United decision successfully challenging certain FEC campaign regulations also involved a facial challenge."
The earliest discussion of a pre-enforcement challenge at the Supreme Court came in 1923, with the use of such challenges ramping up after 1970.
America at a crossroads
The Phillips' appeal and the two recent pre-enforcement challenges come at a time, Lindevaldsen said, when America finds itself at an important crossroads between two competing constitutional interests — religious freedom under the First Amendment and nondiscrimination under the 14th Amendment.
She expressed frustration over the court's ruling in favor of gay rights in cases involving marriage and said an outcome in favor of religious freedom in the pre-enforcement challenges would be far-reaching.
"In an era where new constitutional rights have been pronounced through judicial fiat to elevate sexual orientation and gender identity to protected class status, it would plow new ground insofar as it would represent a rare instance of judicial restraint with respect to these issues," Lindevaldsen said.
For her part, Lindevaldsen explained the best solution to the standoff between religious freedom and LGBT rights would be exempting religious objectors from nondiscrimination laws.
Religious exemptions have often been used in cases when individuals feel their sincerely held beliefs are being impeded by a law or regulation. In fact, there's a long — and complicated — history surrounding exemptions for religious objectors.
Lindevaldsen isn't alone in her view of finding protections for religious objectors.
"Among academics, I think the consensus view is that, while the constitutional questions are difficult and might be resolved either way, the best solution would be a statutory one, in which a well-defined and relatively small set of businesses were exempted from complying with anti-discrimination laws dealing with gay, etc. discrimination," Tushnet said.
Why some reject exemptions
But critics of religious exemptions warn that even a narrow protection for a Christian business owner to opt out of providing wedding services could open the floodgates to other forms of discrimination that violate the 14th Amendment.
They have so far successfully argued that the equal protection clause under the 14th Amendment should take precedence when it comes to clashes between Christian business owners and gay couples.
The 14th Amendment says "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." The text goes on to say that no state will "deprive any person of life, liberty, or property, without due process of law," guaranteeing "equal protection of the laws."
Supreme Court Justice Anthony Kennedy cited the 14th Amendment in his majority opinion on the landmark Obergefell v. Hodges case — the 5-4 decision that legalized gay marriage last year.
The "Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state," according to Constitution Center.
The key question is whose rights win out: The gay couple looking for a cake or photographer for their wedding or the Christian business owner who religious beliefs prevent her from participating in producing wedding services for same-sex unions?
Ria Tabacco Mar, an attorney with the American Civil Liberties Union who represents the gay couple turned away from Phillips' bakery, said the Equal Protection Clause trumps the First Amendment in cases involving public accommodations.
"What's really at issue here is the cake shop's conduct of selling certain products to heterosexual customers and then refusing to sell those same products to lesbian and gay customers," she said last year.
In a statement in April 2016 after the Colorado State Supreme Court declined to hear Phillips' appeal after he was found in violation of anti-discrimination law, Mar added, "We all have a right to our personal beliefs, but we do not have a right to impose those beliefs on others and harm them."
There have been a series of major Supreme Court battles over the years that have focused on the 14th Amendment, most notably Brown v. Board of Education in 1954, when a unanimous court ruled against racial segregation of schools.
And the amendment's application continues to evolve, as Kennedy wrote in the Obergefell v. Hodges decision: "The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning."