Today’s post is from guest contributors James and Joan Riley. The Rileys have been married for more than 50 years and are members of the Church of the Presentation in New Jersey where they participate in small Christian communities. James has been a practicing attorney for more than 50 years and Joan, who has taken courses in paralegal studies, spent the bulk of her career in public education as a teacher and building principal in the Bronx. James is now semi-retired as an attorney but still uses his law license and legal experience to advocate for justice including submission of amicus briefs pro bono publico on behalf of LGBTQ+ rights in the U.S. Supreme Court. Joan and James helped to organize 27+ Lay Roman Catholics as a group of progressive practicing Roman Catholics who believe that all people are to be treated with compassion, closeness and tenderness.
On Monday, December 5th, the Supreme Court of the United States (SCOTUS) will hear arguments in a suit brought by Lorie Smith and her web design business, 303 Creative LLC. (“303”) against Aubrey Elenis, who is chairperson of Colorado’s Civil Rights Commission. Smith, and 303, want to design websites on behalf of couples who are marrying, but she says her religious faith defines marriage as only between a man and a woman, and thus she will always refuse to serve same-sex couples as customers. She wants the Court to decide the State of Colorado cannot penalize her rejection of same-gender couples.
Both the federal trial court and the intermediate level federal appeals court rejected her arguments primarily on the basis of a 1990 Supreme Court decision referred to as Employment Division, which holds that laws such as Colorado’s human rights law can constrain religious believers such as Smith if the laws do not target religion, are neutral, and generally applicable to all.
The present Supreme Court, with its conservative majority, may very likely rule for 303 and its discriminatory approach towards LGBTQ+ persons. To help prevent such an outcome, a group of 27+ lay Roman Catholics (27+) has filed a friend of the Court brief, often known in Latin as an amicus curiae brief, on behalf of the anti-discrimination efforts of Colorado. 27+ is an advocacy group of faithful, practicing members of the Roman Catholic Church who believe the teachings of Jesus Christ and our church support welcoming, not rejecting, all people including LGBTQ+ people. Pope Francis emphasizes such welcome should be made with closeness, compassion, and tenderness.
In 303, 50 amicus briefs have been filed on behalf of the exclusionary approaches of 303 and 35 amicus briefs (including 27+) have been filed on behalf of the inclusionary approaches of Colorado. Often “amicus brief filing makes for strange bedfellows,” meaning it is surprising which groups file jointly with one another. For example, the United States Conference of Catholic Bishops (USCCB) has joined with Franklin Graham’s group Samaritan’s Purse, which has been criticized for its aggressive rejection of gay persons, as well as a group affiliated with the Seventh Day Adventist Church, to support the discriminatory claims of 303 in the guise of “religious liberty.”
One of the central arguments of 27+ is that SCOTUS should not be ruling for either side on issues where religious differences are present. For example, recent polling indicates that 69% of U.S. Catholics support same-sex marriage and those in other religious traditions register similar results. How, then, could the Supreme Court rule in 303 that this nation’s secular policies of inclusion be voided by an exemption based upon assertions of religious faith or religious liberty?
27+ emphasize that our group is acting on our individual and collective consciences—our “sensus fidei fidelis” (the faithful’s sense of the faith)—about how our gay and lesbian brothers and sisters are to be treated: by welcoming them, never rejecting them. Our faith teaches that that LGBTQ+ persons are never to be “marginalized, stigmatized or excluded”. Our brief cites the work of Catholic commentators and theologians including: Fr. James Martin, S.J., who emphasizes that LGBTQ+ individuals should be welcomed and accepted in the Church and must never be judged exclusively by their sexuality; Fr. Bryan Massingale, a theologian who reports that “genuine doctrinal development” concerning the inclusive treatment of LGBTQ+ persons is occurring within the Church; Lisa Fullam, a theologian who writes that refusal to recognize the civil marriage of a same sex couple constitutes a form of unjustifiable discrimination that is contrary to Catholic Social Teaching; and Todd A. Salzman and Michael G. Lawler, theologians who conclude that Catholic Social Teaching clearly states that discrimination based on sexuality or gender is always unjust and immoral, and that “every form of social or cultural discrimination in personal rights on the grounds of sex, race, color, social conditions, language or religion [is] incompatible with God’s design”.
The federal trial and appeal courts’ decisions were based upon an important previous decision (a “Supreme Court precedent”) written by Justice Antonin Scalia and handed down in 1990. Since it was handed down, Employment Division has been the subject of repeated challenges based on “religious liberty” claims to allow discrimination against LGBTQ+ persons. Employment Division is now in serious jeopardy in the 303 case—an “end run”–based on the claim that the web designer is supposedly being subjected to “compelled speech” in being required to serve same sex couples under a State anti-discrimination law. 27+ argue that Employment Division, should remain controlling; discrimination and rejection of gay and lesbian persons should never be permitted.
27+ also argue that if SCOTUS rules for 303, LGBTQ+ people, as a significant segment of our nation’s citizenry–recognized as at least 7% or more–would have a tragic need for a new version of Victor Hugo Green’s “The Negro Motorist Green Book” to identify those businesses which discriminate and refuse to serve LGBTQ+ people. The original Green Book identified racist businesses which refused to serve black persons. A new version, which 27+ prays will not be needed, would be needed to identify homophobic businesses.
The issue of a new Green Book is not simply a metaphor. Some believe that the following argument will arise during oral arguments on December 5th: What if, instead of same-gender marriage, 303 opposed interracial marriage? Would Smith still be entitled to a First Amendment exemption? Would the Green Book also become essential, once again, for persons of color?
If the Supreme Court rules for 303, it would not be just ruling against “secularists” as Justice Samuel Alito has asserted. Instead, it would be ruling against a very substantial portion of the American populace who are religious, including 27+, all of whom, based upon their sincerely held religious faith, support the compassionate welcoming of LGBTQ+ persons. Any such action would be incomprehensible to the vast majority of the citizens of this nation.
Acknowledging both Theodore Parker and Martin Luther King, Jr., the concluding prayer for relief of 27+ Lay Roman Catholics in its amicus brief is that SCOTUS shall bend the arc of the moral universe towards justice for all—that includes our LGBTQ+ siblings and colleagues.
—James and Joan Riley, December 1, 2022