U.S. Supreme Court

Chemerinsky: An important week of arguments in the Supreme Court

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Erwin Chemerinsky. Photo by Jim Block.

Next Monday and Wednesday, the Supreme Court will hear oral arguments in two of the most important cases of the term. Each could have enormous implications for future litigation and for constitutional law.

303 Creative v. Elenis

Do a person’s religious beliefs and free speech rights provide a constitutional basis for an exemption from anti-discrimination laws? The court has confronted this twice in recent years, both times suggesting such a constitutional right, but in neither instance providing a clear resolution of the issue.

In Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), the court considered whether a baker had a First Amendment right based on his religious beliefs to refuse to design and bake a cake for a same-sex couple in violation of Colorado’s anti-discrimination law. The court, in a 7-2 decision, ruled in favor of the baker on narrow grounds, concluding that members of the Colorado Civil Rights Commission had expressed hostility to religion during their deliberations.

In Fulton v. City of Philadelphia (2021), the court found that Philadelphia violated the free exercise of religion rights of Catholic Social Services in requiring that social service agencies contracting with the city to place children in foster care do not discriminate based on race, sex, religion or sexual orientation. The court stressed that the Philadelphia ordinance allowed city officials to grant exemptions from the anti-discrimination prohibition. Even though none had ever been granted, the court said that this was not a law of “general applicability” and failed strict scrutiny.

The issue is now before the court in 303 Creative v. Elenis, to be argued on Monday. Lorie Smith is a graphic artist and a web designer. She wants to design websites for weddings but refuses to do so for same-sex weddings because of her religious beliefs. The Colorado Anti-Discrimination Act—the same statute that was at issue in Masterpiece Cakeshop—prohibits businesses that sell or offer services “to the public” from discriminating based on “disability, race, creed, color, sex, sexual orientation, marital status, national origin or ancestry.” The law also prohibits business establishments from displaying a “notice” that “indicates that the full and equal enjoyment of the goods [or] services … will be refused” based on a protected characteristic.

Smith filed a lawsuit in federal district court to have the law declared unconstitutional as applied to her and for an injunction to keep it from being enforced against her. The federal district court and the U.S. Court of Appeals for the 10th Circuit ruled against her. The Court of Appeals stressed that the government has a compelling interest in preventing discrimination based on sexual orientation.

The Supreme Court granted review, but interestingly only on the free speech issue presented and not on the question concerning free exercise of religion. The question presented states: “Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.”

By denying review on the free exercise of religion claim, the court can avoid the issue that divided it in Fulton v. City of Philadelphia, as to whether Employment Division v. Smith (1990), should be overruled. Employment Division v. Smith held that free exercise of religion is not a basis for exemptions from laws; the free exercise clause cannot be used to challenge a law so long as it is neutral, not motivated by a desire to interfere with religion and applies to everyone. In Fulton, Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, forcefully argued for overruling Employment Division v. Smith. Justices Amy Coney Barrett and Brett Kavanaugh expressed support for this view but did not find it necessary to decide the question in Fulton.

As a free speech case, Smith argues that the Colorado law impermissibly compels her speech by requiring that she design websites for same-sex couples. But the state of Colorado argues that the state is regulating conduct—prohibiting discriminatory conduct—and only incidentally Smith’s speech.

Although the free exercise of religion issue is not directly presented to the court, it obviously underlies this case. And if the court holds that the First Amendment provides an exemption from anti-discrimination laws, will this extend to other contexts, such as employment discrimination and other types of discrimination, such as based on race and sex? This is why the stakes are large in 303 Creative v. Elenis.

Moore v. Harper

Moore v. Harper, to be argued next Wednesday (Dec. 7), arises from partisan gerrymandering for congressional districts in North Carolina. North Carolina is a purple state. It went for President Barack Obama in 2008, but for the Republican candidates in presidential elections since then, always by very close margins. In 2020, Donald Trump beat Joe Biden by 1.34%.

After Republicans gained control of the North Carolina legislature in the middle of the last decade, they redrew congressional districts in the state. Leaders of the effort said their goal was to give Republicans control of 10 of 13 congressional seats in the state. A computer drew 3,000 possible maps, and Republicans chose the map most likely to do this. It succeeded. For example, in 2018, Republican and Democratic candidates for Congress got almost the identical number of votes in the state, but Republicans won 10 of 13 races.

A challenge to this went to the Supreme Court, but the justices, in Rucho v. Common Cause, a 5-4 decision in 2019, held that federal courts may not hear challenges to partisan gerrymandering. The court said that such cases are political questions that may not be adjudicated by the federal judiciary. The court expressly left open for state courts to find that partisan gerrymandering violates state constitutions.

After the 2020 census, North Carolina, like all states, redrew election districts. There are now 14 congressional seats from North Carolina. The legislature drew the districts so that Republicans are likely to win 10 or 11 of the races. The North Carolina Supreme Court found that this violated the North Carolina constitution and appointed a commission to redraw the districts.

The legislature and its supporters went to the U.S. Supreme Court and contend that the North Carolina Supreme Court has no legal authority to be involved and that the state legislature gets the last, unreviewable word. They base this argument on a provision of Article I, section 4 of the Constitution, which says that the legislature of each state shall determine the time, place and manner for choosing its members in Congress. This is called the “independent state legislature theory.”

The implications are huge. If the Supreme Court accepts the independent state legislature theory, then no court—state or federal—ever could hear challenges to partisan gerrymandering, no matter how extreme. It would call into question the ability of states to have independent districting commissions, which the court upheld 5-4 in Arizona State Legislature v. Arizona Independent Redistricting Commission in 2015. It would limit the ability of state election officials to enforce state law and could empower a state legislature to disregard any state statutory or constitutional provision.

And the potential implications of the court’s accepting the independent state legislature theory extend beyond that. There is another provision of the Constitution, Article II, section 1, which says that the legislature of the state shall allocate that state’s electors for the Electoral College.

Imagine that the 2024 presidential election is as close as the 2020 election. Imagine a few states with Republican legislatures but where the Democratic presidential candidate wins the popular vote. This was true in 2020 in states like Arizona, Georgia, Michigan, Pennsylvania and Wisconsin. Imagine that several of these legislatures award the votes in the Electoral College to the Republican presidential candidate, notwithstanding a state law that requires that the winner of the popular vote receive all of that state’s electors. In fact, Donald Trump urged several of these state legislatures to do exactly this in 2020, though none did so. If the court accepts the independent state legislature theory, it well could empower states to do exactly this in 2024, and that could be decisive.

Although that is not the issue in Moore v. Harper, the independent state legislature theory has the potential to dramatically change the allocation of power over election in states and to make an enormous difference in our electoral system. Ultimately, it is a question of the role of the judiciary in enforcing constitutions, state and federal.

Erwin Chemerinsky is dean of the University of California at Berkeley School of Law and author of the newly published book A Momentous Year in the Supreme Court. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s also the author of The Case Against the Supreme Court; The Religion Clauses: The Case for Separating Church and State, written with Howard Gillman; and Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights.

This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

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