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  • Victoria A. Brownworth

Supreme Court’s Barrett Urged to Recuse Herself from LGBTQ Case

November 30, 2022 Philadelphia Gay News

Supreme Court Justice Amy Coney Barrett during her confirmation hearings.

Should Supreme Court Associate Justice Amy Coney Barrett recuse herself from an LGBTQ case about to be heard by the high court? Former members of Barrett’s secretive anti-LGBTQ faith group, People of Praise, say yes.

The case under consideration is 303 Creative LLC v. Aubrey Elenis. The Supreme Court will begin hearing oral arguments in the case Dec. 5.

Former members of People of Praise, a network of lay Christian communities founded in 1971 in South Bend, Indiana with whom Barrett is associated, spoke to The Guardian, saying Barrett’s connection to the group makes her too biased to be able to fairly assess the case and that she should recuse herself.

The case involves Lorie Smith’s Colorado web design company, 303 Creative. Smith objects to providing services for same-sex couples. At issue is the question of personal religious freedom versus laws banning discrimination on the basis of sexual orientation. The Tenth Circuit Court previously ruled against Smith in August 2021, so this is an appeal of that ruling.

Smith’s company claims it serves gay and lesbian customers, but limits its wedding-related services to heterosexual marriages. Smith says it is her intention to state on her website that her company’s policy is due to her religious convictions. Smith has said the law compels her to “create messages that go against my deeply held beliefs.”

The court decided back in February that it would hear the case this fall.

Smith’s attorneys told the justices that Smith compares same-sex marriage to violence and sexual immorality, saying, “She cannot create websites that promote messages contrary to her faith, such as messages that condone violence or promote sexual immorality, abortion or same-sex marriage. Lorie respectfully refers such requests to other website designers.”

This is where Barrett’s link to People of Praise is relevant, as similar language has been used by the group.

In September 2020 after Donald Trump nominated Barrett to the Supreme Court vacancy left by Ruth Bader Ginsburg’s sudden death, Human Rights Campaign wrote, “Amy Coney Barrett’s history tells a story of anti-LGBTQ ideology, opposing basic rights thought to be settled law, and an anti-choice ideology out of step with popular opinion.”

Maura Sullivan, who identifies as bisexual, was raised in a People of Praise community. Sullivan told The Guardian, “I don’t believe that someone in her position, who is a member of this group, could put those biases aside, especially in a decision like the one coming up.”

Others former People of Praise members. who refer to themselves as “survivors” of the group, highlighted the role Barrett played on the board of Trinity Schools Inc., a group of private Christian schools. That board, which Barrett joined in 2015, is affiliated with People of Praise.

The Guardian reported that a faculty guide from that same year said, “blatant sexual immorality” — including “homosexual acts” — had “no place in the culture of Trinity Schools.”

The school system’s policies purportedly prevented children who had same-sex parents from enrolling in the school network.

“The People of Praise has deeply entrenched, anti-gay values that negatively affect the lives of real people, including vulnerable youth. These values show up in the everyday policies of the People of Praise and their schools. They are policies that are way outside the mainstream, and most Americans would be disturbed by them,” Kevin Connolly, a former member of the People of Praise, told The Guardian. Connolly’s brother is the main spokesperson for People of Praise.

Colorado law specifically forbids any discrimination against gay and lesbian people by businesses open to the public. That same law bans statements such as the one Smith wants to put on her website that declare they discriminate against gay and lesbian people in their business practices. What the Supreme Court will determine in the case is whether the Colorado Anti-Discrimination Act, which prohibits businesses that are open to the public from discriminating on the basis of numerous characteristics, including sexual orientation, violates the Free Exercise Clause of the First Amendment. The Free Exercise Clause protects citizens’ right to practice their religion as they choose, as long as the practice does not run afoul of a “public morals” or a “compelling” governmental interest.

A similar question to Lorie Smith’s case was raised in the case of Fulton v. City of Philadelphia. In their ruling, the Supreme Court found the City of Philadelphia violated the First Amendment rights to religious freedom of Catholic Social Services (CSS).

The Court determined that Philadelphia’s refusal to contract with Catholic Social Services for the provision of foster care services unless CSS agreed to certify same-sex couples as foster parents violated the Free Exercise Clause of the First Amendment.

Smith maintains that she has worked with LGBTQ clients on other projects that don’t conflict with her religious beliefs but that her beliefs regarding same-sex marriage do conflict.

“A win for Lori would not only be a win for her, it would also be a win for the LGBT graphic designer who doesn’t want to be forced to create art and promote messages that they disagree with,” Smith’s lead attorney, Kristen K. Waggoner, told the Washington Examiner.

Paul Collins, a legal studies and political science professor at the University of Massachusetts Amherst, told Newsweek, “There is essentially no chance Justice Barrett will recuse herself from the case based on the calls from former People of Praise members to do so.”

Collins added, “The reason is that the allegations of a conflict are too broad to be meaningful and could apply to membership in a wide array of religious organizations that would effectively preclude many justices from ever hearing cases about any issues that remotely involve religion.”

Collins also told Newsweek he believed the justices would side with the web developer.

Throughout her confirmation hearings, Barrett reiterated that her personal religious beliefs as a devout Catholic would not interfere with her role as an unbiased judge.

The tone of Barrett’s responses during the Senate hearings was measured, polite and to most judicial watch dogs, deeply troubling. Democrats revealed numerous past statements, writings and rulings by Barrett that illumined a legal scholar and jurist who did not view the landmark rulings of Roe v. Wade nor Obergefell v. Hodges as settled law. Barrett’s personal beliefs — religious and otherwise — signaled strong anti-abortion and anti-LGBTQ stances, including references to trans women and girls as physiological males.

Barrett said, “People will feel passionately on either side about whether physiological males who identify as females should be permitted in bathrooms, especially where there are young girls present.”

Within the judiciary and throughout the midterms campaigning, Republicans have focused on religion and religious liberty issues that have defined many of the SCOTUS rulings on LGBTQ-related cases.

In her questioning of Barrett during confirmation hearings, Hawaii’s Democratic Sen. Mazie Hirono highlighted how Barrett had “not once, but twice” used the term “sexual preference” when referring to lesbians and gay men and marriage equality in earlier questioning by ranking member Sen. Dianne Feinstein (D-CA).

Barrett had said to Feinstein, “I have never discriminated on the basis of sexual preference and would not ever discriminate on the basis of sexual preference.”

Hirono said, “Let me just say that ‘sexual preference’ is an offensive and outdated term. It is used by anti-LGBTQ activists to suggest that sexual orientation is a choice. It is not. Sexual orientation is both a normal part of a person’s sexuality and is immutable.”

Hirono went on to say that if Barrett believes that sexual orientation is indeed “merely a preference,” then “the LGBTQ community should be rightly concerned about whether you would uphold their constitutional right to marry.”

Barrett clarified, “I fully respect the rights of the LGBT community.”

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