Introduction to the 303 Creative Supreme Court Case

Gerardo Sumano [00:00:00] Hello, everyone, and welcome to another episode of Mormon Stories podcast. I'm your host, Gerardo Sumano. And in this, in today's Saturday, July 1, we're here doing this impromptu Mormon Stories episode. After some news came yesterday about certain Supreme Court case ruling, you know, that had to do with LGBT issues and, and discrimination.

Gerardo Sumano [00:00:31] This we're going to be talking about it. The Supreme Court ruled in favor of a Christian web designer saying that she had the right to discriminate against gay couples, you know, if she didn't want to make her, uh, their websites for their weddings. And it's a pretty controversial case. You know, there's, uh, a lot of, uh, religious freedom stuff involved in there and freedom of speech. And we just want to, you know, talk about what the case was and also, you know, some interesting facts. Like recently it was discovered that basically the one, the, the one document that she took to, to court originally and that, well, he made it up all the way to the Supreme Court.

Gerardo Sumano [00:01:22] This document that she was saying, you know, this, that, that a man had, uh, contacting, contacted her to ask her for a, a wedding website for his gay marriage. Well, it turns out that this person who supposedly sent that email has been contacted by a reporter and it turns out that he is a straight person who's married to a woman and has a child, didn't know that there is information or a fake email had been used using his name or his address and information, you know, to debate or take a case all the way up to the Supreme Court. So very interesting. And also, you know, I mean, as many people probably know, the, the Mormon Church turns out that they're very interested in these cases and, and they actually supported this case, submitting an amicus brief.

Gerardo Sumano [00:02:16] And so we're going to be covering that, the church's involvement in, in this case. And to talk about it, I have my friend Brenton Erickson, who is an attorney, and I. Do you want to introduce yourself, Brenton?

Brenton Erickson [00:02:31] Sure. My name is Brenton Erickson. I've been on the podcast a few times before. I mainly focus on criminal defense law and I'm working here in Oregon.

Gerardo Sumano [00:02:41] Thank you. Yeah. And like you said, you've been on Mormon Stories podcast before, talking about all kinds of different subjects like sex abuse on the Mormon Church and. Well, in this, in this case, we're going to be talking about this case about LGBT discrimination. And just to give you a little bit of background, I put together some slides.

Gerardo Sumano [00:03:03] Basically, this case was brought up by this woman called Lori Smith, and she has a company called 303Creative. You know, her websites, I mean, this is something that has been talked about in. In. In the news, and I think among the LGBT community. You know, know, when you looked at. Look at the website designs that she presented to court, I mean, they're pretty amateur, you know, nothing out there. Something that was interesting about this case was that she doesn't create websites for weddings at all. Straight or gay, she's never done it. No one really ever has requested that other than, you know, that turns out the fake email.

Gerardo Sumano [00:03:44] And so this case was brought up basically on purely a hypothetical what if I, as a web designer, want to. I start creating wedding websites, and am I going to be allowed to discriminate against LGBT people? Is that right, Brenton? Is that what your understanding is, and what are your thoughts about that?

Brenton Erickson [00:04:06] Yeah, that is. It's a kind of complicated status for a case, for some constitutional questions. You can bring a case asking for a preliminary injunction, and that means that you are pretty sure that if you try to do a certain thing, that a law that's our. A law from a state already on the books will violate your constitutional rights. So sometimes you can come to a court and say, I think if I do X, then Y will happen, and the Y is this constitutional violation. So that's the main way they approach this case. And ultimately, the Supreme Court decided this case regardless of whether anyone had ever actually asked her to make a website for a gay wedding.

Brenton Erickson [00:04:48] It decided this case based really on the potential, the fear that someone could ask her that. In the legal world, we often say that bad facts make bad law, and this is one of those examples where there really are no facts in this case. There's just a bunch of hypotheticals. So the Supreme Court was able to create, you know, the scariest possible disputes and hypothetical situations and then make a.

Brenton Erickson [00:05:12] A ruling based off of those hypotheticals. And this case gives the Supreme Court a lot of power in the future to decide a lot of future cases and look at each of those cases and decide whether or not those hypotheticals or those new disputes also violate free speech protection. So this conservative court has been giving itself a lot of power, and this case is just the latest example, and to quickly address the fact that there was a fake gay wedding request. My understanding is that somewhere earlier on in the proceedings, either the 10th Circuit Court of Appeals or the district court, some court asked her lawyers whether or not she had actually ever been asked to make a wedding website for a gay couple, and her legal team submitted an affidavit and an affidavit is a sworn statement, meaning it's on penalty of perjury.

Brenton Erickson [00:06:06] They submitted an affidavit pointing to this individual and saying that this individual had asked for a gay wedding website. And then as you mentioned, a journalist later uncovered that that wasn't true. So the Supreme Court itself doesn't really care about whether or not that's true. But it's just, it is wild that her legal team submitted an affidavit that it seems, from what we can tell, was just false.

Gerardo Sumano [00:06:28] Right, right. Yeah. Just really interesting and something, I mean, I've known about this and I'm going to talk really quick, but I want this episode to be really short and to the point. But so there's this organization called Alliance Defending Freedom, and I think we've talked about it on more mysterious podcast a little bit about who they are. But it's this very powerful Christian organization who basically uses this, you know, the terminology of religious fighting for religious freedom. They raise a lot of money, I think last year over a hundred million dollars. If I'm, you know, I was checking their 900. Their 990s. Yes. Last night, you know, millions and millions of dollars that this organization uses to basically find plaintiffs or, you know, people like her, like Lori Smith, and then use their cases to take up to the Supreme Court and fight against LGBT rights.

Alliance Defending Freedom and the LDS Church's Role

Gerardo Sumano [00:07:30] So I'm just going to show a few slides and these are where these are. Were put together by my friends at the Religious Exemption Accountability Project. And so actually this, so this is their logo. Alliance Defending Freedom for Faith, for Justice.

Gerardo Sumano [00:07:49] It's just really interesting. You know, let me go back. And then if you see, you know, what, what her website actually looks like. And then once Alliance Defending Freedom gets involved, you know, finds her or, you know, takes her case to, you know, potentially take it to the Supreme Court, it just becomes this very curated. All of a sudden she's this Madison Avenue designer trying not to make fun of her, but it's just very interesting, right? Like, I mean, with all these resources, really try to build her case for the general public to feel, you know, some, some kind of empathy towards her like, you know, or her, her religion, her religious rights or her freedom of speech is being violated.

Gerardo Sumano [00:08:30] Well, it turns out that this Alliance Defending Freedom organization, well, it was founded for more by more than 30 leaders of the Christian right since 1994. And their, their whole goal is to expand Christian practices within public schools and in government.

Gerardo Sumano [00:08:49] You know, they, they've been really involved in outlawing abortion in the United States access to contraceptives, curtailing rights for LGBT people both in the US and abroad. So they, so their efforts are not just isolated in the United States. You know, they go to other countries too, to try. Try to pass these kinds of litigations that are legislations or even litigations that are, you know, go against the rights of lg LGBT people.

Gerardo Sumano [00:09:17] And then something interesting, you know, is that this is, These are some of the things that they. So the Southern Poverty Law center, this is an organization who has declared the ADF to be a hate. A hate group. And according to them, the ADF has supported the criminalization of sexual acts between LGBT adults in the US and abroad.

Gerardo Sumano [00:09:41] You know, contended the LGBTQ people are more likely to engage in pedophilia, claim that a homosexual agenda will destroy Christianity and society. So they're just very, you know, this. LGBT issues and alliance of Defending Freedom are, you know, they're. It's really important to them to advance this, this types of issues.

Gerardo Sumano [00:10:01] And something really interesting is that ADF also has powerful connections and ties with very powerful people like U. S. Supreme Court Justice Amy Coney Barrett, Vice President Mike Pence, you know, the former Attorney General William Barr, Senator Josh Hawley, and edfs is just really, really powerful. Also, I, uh, we know that they are, uh, also how has close. They have close ties with the Federalist Society. Who were the ones behind the nominees that Trump appointed to the Supreme Court?

Gerardo Sumano [00:10:36] You know, like the, The. The three judges that we know, the highly conservative judges that were put in the Supreme Court by, By Trump and, And. And the Republican Party. So, yeah, just very interesting. Just the ties that this organization has.

Gerardo Sumano [00:10:54] And just to give you a brief list of the cases that ADF Alliance Defending Freedom has been involved in are Erval vs Hobby Lobby, the, the case that struck down the contraceptive mandate as applied to those with religious objections.

Gerardo Sumano [00:11:11] The, The Perry versus, I'm not sure if I'm pronouncing it right. Schwarzinger, Schwarzenegger. You got it. So this one defended Proposition 8 in California and a position of marriage equality. You know, they were really involved and took the Masterpiece Cake Shop case, you know, that ended up defending the position that businesses can refuse certain services to LGBTQ people based on religious objection. And, and you know, others. Well, like the Kennedy vs. Bremerton School District case recently, you know, that were. Was arguing in favor of a coach, a football know, that worked for a public high school who wanted to pray during his job duties. And.

Gerardo Sumano [00:11:58] Yeah, so just to give you like, you know, a. A brief I mean, here, here are, here's the amount of money that they raised since in 2002, they, they started with $15 million and just a couple years ago, you know, in 2020, they raised $65.2 million. You know, they're, they've really expanded and this idea of religious freedom, freedom really has a lot of importance for them and, and for the people who donate for money to them.

Gerardo Sumano [00:12:33] And yeah, so I mean, this is all important again because, you know, it shows who is really behind these, these cases. To me, you know, the fact that like, you know, maybe the, the purported fake document, you know, about this supposed gay man who wanted a gay wedding website, you know, all the, all this stuff like is, is, are these things real or are there organizations kind of behind these cases? I mean, to me it's pretty clear there are, who are really trying to find these plaintiffs to take this case and to the Supreme Court. And so I just want to hear your opinion about that, Brenton, and what you think about that.

Brenton Erickson [00:13:09] Yeah, I mean, in the legal world you always have organizations that are trying to have long term strategies to change the law over time, especially when the court changes. So as you mentioned, the Federalist Society has been on a decades long pursuit of entirely changing the Supreme Court and they've now accomplished that. And that's why Roe versus Wade was overturned. That's why we got the decisions that we got this last week of June this year.

Brenton Erickson [00:13:34] And then you have organizations like ADF that search for potential plaintiffs and kind of curate these lawsuits. This is a really, this is just a really extreme example, I think, of. Yeah. Of lawsuits where no one's really sure what the facts actually are. They're kind of arguing about a lot of things in the abstract. There's not a lot of concrete dispute going on. Another big example this year was a case challenging the Indian Child Welfare Act. And we actually got a much better result in that case where the Supreme Court upheld the Indian Child Welfare Act. But arguably none of those plaintiffs should have been able to even bring a case to begin with.

Brenton Erickson [00:14:10] No one really has a right to adopt a specific child. The adoptions had long since been finalized. And yet these organizations are really good at convincing conservative judges at the trial level and at the appellate level in the federal system to, you know, to just keep stretching the law and to keep allowing these lawsuits to come forward to see what kind of changes they might get.

Gerardo Sumano [00:14:31] Right?

Guest [00:14:31] Right.

Gerardo Sumano [00:14:32] Totally, totally. Well, like I said at the beginning of the episode, it turns out that the LDS Church submitted it and a Brief, you know, supporting the 303 creative case and Lori Smith and the ADF. So Brenton, you've read it and you're going to tell us just a little bit about what your insights are. Just really quick. It was really interesting that all the lawyers that are listed on the brief turns out that they're all Curtain McConi lawyers, even though there are some other churches named on, on this brief. But there, I mean the lawyers were all hired by the church, possibly. Right. Because they're all Kurt McConkey lawyers.

Brenton Erickson [00:15:18] Yeah. I mean it leaves open the possibility that the church foot the bill for this breed. There's always, I mean there's always ways in which those groups could have kind of contributed to the, the time and everything. But yeah, it's interesting that they're all from Curtin McConkey. I think it's obvious the church puts a lot of time and energy into developing lawyers and approaches that focus on these kinds of things. I mean, BYU has a religious Freedom center. Right. BYU Law School. I mean, so the church is focused on sharpening this kind of approach for sure.

Gerardo Sumano [00:15:53] Right. So what were your insights, Brenton, on, on what the church was arguing on their brief? I mean, it turns out that the judges that sided with 303 creative used some of these arguments probably. I mean not necessarily that they took them or they stole them from, from the lawyers at Curtin McConkey. But you know, they're very similar arguments. And I just wanted to get you give you a brief moment to just tell us what your insights were. Just reading the brief that the church submitted.

Brenton Erickson [00:16:24] Well, to start out, I think the main difference between the church's brief and what the Supreme Court ended up deciding is the Supreme Court tried to place the whole decision a lot more under the concept of freedom of speech. Whereas the church's brief really tries to tie freedom of speech together with free expression of religion and argue essentially that because the First Amendment protects both freedom of speech and free expression of religion, that religious speech is like extra protected, like super protected compared to everything else. So I mean they're really going for it, if that makes sense. And the Supreme Court didn't necessarily take their language that far, but they absolutely got the result that they wanted.

Brenton Erickson [00:17:07] Yeah, as I read through the brief, just several different themes came out. One of them is just another reminder that the church still has this tortured relationship with trying to tell its members or at least allow its moderate and progressive members to believe that they can fully accept their queer family members and friends and ward members. But Also teach that you shouldn't condone or affirm those beliefs. And people within the church kind of line up all over the place on that issue. But this brief. This brief takes it once again to a very conservative area.

Brenton Erickson [00:17:49] For example, it says that freedom requires. Like it says, we and our members seek to live out our lives according to our religious beliefs and identities. That requires the freedom to express our faith and to avoid affirming beliefs we do not hold. And this theme comes up over and over again.

Brenton Erickson [00:18:09] It says that the law in Colorado would bar Ms. Smith from posting a statement describing her traditional religious beliefs about marriage and force her, contrary to her beliefs, to create custom websites promoting same sex marriage. There's just a few more quotes here,

Gerardo Sumano [00:18:29] something that you mentioned, Brendan, that I thought it was pretty interesting, is that the. Even in this brief, the church has this really hard time balancing, you know, this. What they want to say publicly and in pr, you know, which is, we love LGBT people, but then at the same time saying we want to reserve our right to discriminate against them.

Brenton Erickson [00:18:53] Yeah, I. I think that's the. I think church members and people who are interested in the church, you. You never know where leaders actually land on these issues. Right after Obergefell, it seemed like the church was kind of stepping back and saying, oh, well, this fight is over. Then you had a famous public statement from Dallin H. Oaks criticizing that county clerk in Missouri who famously tried to not follow Obergefell. And you have President Oaks saying that that was inappropriate for a county official to do. But then you have cases like this where they are. In my mind, the church is trying to find out how much legal right and privilege its beliefs can get back in the public square, especially in areas like public accommodations.

Brenton Erickson [00:19:39] So, yeah, you have a lot of members who would say that it's totally fine for people to support the marriage of their gay friends. And yet this brief strongly implies that if someone is really living the teachings of the Church of Jesus Christ of Latter Day Saints, they would not create a website for a gay wedding. Like, does that make. Does that make sense?

Gerardo Sumano [00:19:57] Yeah. Yeah.

Brenton Erickson [00:19:58] And to be fair, like, they're having to argue that for legal reasons, but it's hard to separate those two things. If you read this brief, it strongly implies that people who are trying to sincerely live out the teachings of the LDS Church should not make a wedding cake for a gay wedding. Should not. I mean, like, so I think that would lead a lot of members to ask, should I even attend one? Right. That those are. Those are questions where the church Refuses to be clear. And you'll get like a random quote from an apostle here that sounds kind of friendly and then a random quote from an apostle that sounds awful. And so I call that purposeful ambiguity, like strategic ambiguity. They like for their members to be unsure of what they're supposed to do in those areas, I think.

Gerardo Sumano [00:20:39] Yeah, yeah. And something else that you had mentioned to me that was interesting about the brief, I mean, that we've seen come up in, in different cases, I think, on the Respect for Marriage act, you know, that the church supported and that was passed recently by, by Congress. There, there's this, there seems to be this implied idea that straight marriage is moral. And because straight marriage is, you know, embraced and believed by most people, you know, it should be held at a different level than same sex marriage. In other words, that religious beliefs and, and heterosexual marriage, you know, they're at a different level of, you know, morality. And then same sex marriage is like, oh, we shouldn't force that one on other people because, you know, it's, it's not widely accepted.

Brenton Erickson [00:21:31] Yeah. Which, by the way, that approach is just not even in line with statistics anymore. Polls regularly show that almost 70% of Americans support gay marriage. Right. So the church's view that, that a marriage between a man and woman is the only acceptable form of marriage is now the minority view in this country. And the main theme that you see in this brief is I think church leaders long term are scared of the possibility of their teachings on marriage becoming just socially unacceptable. Like, there's already a lot of people who are offended by what the church believes. But even for the average moderate Democrat or liberal, like, they can accept that religious people have their beliefs.

Brenton Erickson [00:22:17] Right. And accept that religions are going to teach what they're going to teach and people are going to teach their children what they're going to teach them. But I think the church is worried that at some point the country will change so much that openly teaching that marriage is only between a man and a woman will become as socially offensive as openly teaching white supremacist beliefs. And you actually see that comparison over and over again in this brief and you see that concern. So I'm just going to go through a few quotes.

Brenton Erickson [00:22:46] They, they keep emphasizing every time the Supreme Court has said that religious beliefs about marriage are honorable and acceptable and sincere. Like they want the Supreme Court to keep affirming the honorableness of their religious beliefs. They don't just want the freedom to have those beliefs, they want the court to sanction those beliefs, tell the public that those beliefs are respectable.

Brenton Erickson [00:23:13] So they mentioned that in Obergefell, the majority said that recognizing a right to same sex marriage could implicitly condemn religious adherence to traditional marriage. They keep framing the gay marriage issue, like you mentioned, as a white hot controversy. They want to make it look like it's still this really, really, really tense dispute. And actually public opinion has shifted in a really major way on this issue. But back to these quotes.

Brenton Erickson [00:23:36] They said the Court assured those with decent and honorable religious beliefs regarding traditional marriage that their religious freedom would be secure. And here's where they begin the theme. This is for those who are interested in looking. On page four of the brief. They begin this theme of trying to make sure the Court won't relegate religious beliefs about traditional marriage to the same status that white supremacist beliefs now have in society.

Brenton Erickson [00:24:03] So they said Obergefell's solicitude towards religious viewpoints about marriage sharply distinguishes the Court's position on contested beliefs about same sex marriage from its position on racial equality. The Court condemns state laws outlawing interracial marriage as measures designed to maintain white supremacy and therefore repugnant to the central meaning of the equal protection clause. So they keep emphasizing how you've told us that you respect this belief, Please continue to respect this belief.

Brenton Erickson [00:24:31] And then towards the end here, I think it's on the pages that you have there in the slides, if you want to put those up again. So here towards the end, page 24,

Gerardo Sumano [00:24:44] right there.

Brenton Erickson [00:24:45] Okay. So they said without vigilant protection for free speech in cases like this, which have deep symbolic significance as well as practical implications, those with traditional religious understandings of marriage, family and sexuality will be suppressed and silenced. You can see in this quote, they're concerned that the court allowing queer people to have full equal access to public accommodations here could lead to those with traditional religious beliefs about marriage to the margins of American society is what they say there at the end of the quote and on page 25, they, they understand that a lot of people, I think, view their beliefs as discriminatory. What they don't want is for the Court to openly say that.

Brenton Erickson [00:25:31] So they say a different ruling in this case from the court, you know, a ruling supporting queer people would inflict public stigma. And Ms. Smith here, the petitioner would be officially declared a discriminator. Officially declared by the court. Discriminator. That's what they're worried about.

Brenton Erickson [00:25:48] And then again, on the last page, this, to me, was the most shocking quote of, they say religious people and institutions who cherish traditional Marriage have a First Amendment right to say what they believe and refrain from saying what they disbelieve. So I want to stop there and say nobody disagrees with that. No one disagrees with that statement. Even the justices in this case who dissented and would have sided with the other side, you know, in supporting queer people. Nobody believes that a religious person isn't allowed to say what they believe and can be forced to say what they don't believe. Right. Like, no one actually believes that.

Brenton Erickson [00:26:27] But the church doesn't just want those traditional First Amendment rights. It says religious people have a First Amendment right to say what they believe and refrain from saying what they disbelieve without becoming outcasts or pariahs. So this is the main difference I want to show here. They end their brief by saying the court should respect religious beliefs so much that it should tell the country these beliefs are respectable and honorable. And basically, the church is taking the First Amendment and changing it from, we have a right to teach what we want to teach and believe what we want to believe to we have a right to teach and believe all these things.

Brenton Erickson [00:27:02] And we have a right to not become social outcasts or pariahs because of our sincere religious beliefs. And that is a broad, broad understanding of the First Amendment, the way our country works. The First Amendment protects extreme, extreme beliefs. You can be a white supremacist in the United States. That is not illegal. You can hold white supremacist beliefs. You can write and print white supremacist material, famously from a Supreme Court case. You can get a permit from a city to do a Nazi parade through a town that has a lot of families who had family members perish in the Holocaust. That was one of the most, like, painful cases the Supreme Court ever had to hear.

Brenton Erickson [00:27:43] And the First Amendment protects all of that. So there's no world in which Mormons would one day not be allowed to believe that marriage is only between a man and a woman or that marriage has to be, you know, just heterosexual.

Brenton Erickson [00:27:58] But the church is concerned that one day that belief will be just like white supremacy. And in our current society, white supremacy is generally considered, you know, a pariah belief. Like, it's just socially unacceptable. So that. I don't know. I don't know if that makes sense. But that last quote, to me was the most shocking. That they think the First Amendment gives them the right to believe all these things and. And to still be mainstream, essentially. Like, the court is not allowed to let the country push them to the margins.

Gerardo Sumano [00:28:25] Yeah, yeah. And I think we talked about it on when the, the Respect for Marriage act passed, because the Respect for Marriage act has some kind of language like that, you know, that, that religious people are respectable, that their beliefs about marriage are, are, you know, are supposed to be respected and, you know, and kind of downgrades the, the, the, you know, the same sex marriage into like, you know, in, into this morally kind of controversy that maybe, you know, people can't decide whether, you know, they want to discriminate on, based on or not.

Brenton Erickson [00:29:03] Exactly. It's a huge difference, I think, with the Respect for Marriage Act. When they finally supported it, I think they really liked the language in the opening of the act that, because sometimes when Congress passes a law, it puts language at the beginning that isn't really part of the law, but kind of expresses Congress's feelings about it and its purpose. And so they got language that again, reiterated that religious beliefs are honorable and sincere and, and really the way that free speech works in America generally, it's supposed to be this marketplace of ideas. And sometimes over time, ideas become out of fashion, they go out of fashion, they become unacceptable.

Brenton Erickson [00:29:36] And that's how the marketplace is supposed to work. But you can see with the church here in their brief, and with cases like this in general, the conservative religious right in this country is trying to secure constitutional protections that make sure that even if one day gay marriage is accepted by 98% of the country and only 2% of the country still thinks that marriage should only be between a man and a woman, they want the courts forever to say that that belief is still honorable, even if in the future hardly anybody still believes that. Does that make sense?

Gerardo Sumano [00:30:09] Yeah, totally.

Guest [00:30:10] Yeah.

The Bob Jones University Precedent and Tax Exemptions

Gerardo Sumano [00:30:11] And I think something that illustrates this, what we're talking about right now is the Bob Jones case. And I think we had a couple clips from Rick Bennett, who has a podcast called Gospel Tangents. You should go check it out. I asked him for permission to use these clips that he had with a constitutional scholar from Penn's University. And she's talking about this Supreme Court case called Bob Jones University. And so she's going to explain what, what the case was and why, what, why it was important. And I think it talks about this, you know, because it was during a time where religious groups like the Baptist Church and even maybe the Mormon Church as well, still held this idea that interracial marriage was not moral and that, you know, God didn't condone interracial marriage.

Gerardo Sumano [00:31:02] So it was, Bob Jones was a religious university and they didn't want to allow students to you know, marry people of, you know, a different race. So I'm gonna play the clip, and she's gonna explain a little bit about it.

▶ Video Clip 1

Video Clip 1 [00:31:16] A live issue. The really big case in the field involved Bob Jones University in South Carolina. Exactly. In 1983, the IRS had. And. And the. The controversy had been going on for more than a decade.

Video Clip 1 [00:31:35] This was interracial marriage.

Video Clip 1 [00:31:36] It was that first. Yeah. First Bob Jones didn't admit any black students. Then it admitted black students if they were married. I think that. I think I have this right. Then they admitted them if they covenanted only to date people of their same race. And. And, you know, it's. That they. So in other words, Bob Jones had moved. Right. And over the course of the litigation, you get the sense of how painful it is to be involved in litigation. Like, they had moved, but they lost.

Video Clip 1 [00:32:12] BYU was a friend of the brief on that.

Video Clip 1 [00:32:15] I believe they submitted an amicus brief on the Bob Jones side. Yeah. So that feature. That case featured two fundamental constitutional commands clashing with each other directly. Race and religion. And race won flat out. Warren Berger, a Republican chief justice of the United States Supreme Court, wrote the opinion and said, listen, you know, the Civil War was fought over, right.

Video Clip 1 [00:32:52] This is so important. This is such a wretched legacy. This is so important that this. If ever there was a compelling state interest, this is it. And when you have a compelling state interest, you win over religion. That's the standard. So it doesn't mean religion wins every time. It means when there's no compelling state interest, religion wins. And that's the biggest state interest in the game.

Video Clip 1 [00:33:27] So, so. And. And. And that is a very bitterly resisted opinion among some evangelicals. So, like Tam and Beverly lehay both went to Bob Jones University. They both said they didn't agree with the racial discrimination, but they both said the case should have come out the other way, that religion should be privileged. Privilege over race.

Video Clip 1 [00:33:51] Because this. To bring it up to today, I mean, this discrimination against. Over race and the discrimination over sexual

Video Clip 1 [00:34:00] orientation, they're very similar. They are very similar.

Gerardo Sumano [00:34:06] Yeah. So that was the clip. Just very interesting, you know, because Bob Jones, this case was during a time that. Where, you know, racism was starting to become controversial in the United States. And, you know, the Civil Rights act had. Had passed. And, you know, in this case, like. Like she says, race one over religion. And. And I like what she said at the end. You know, well, the sexual orientation discrimination and race, you know, turns out they're. They're pretty similar.

Guest [00:34:37] And.

Gerardo Sumano [00:34:37] And right now, we're During a time, you know, where this, these things are being debated. Like you said, Brenton, the church is scared that at some point in time they're going to become a pariah and become an outcast for having their, their views, you know, regard. Regarding, you know, in air, I said in air quotes, traditional marriage. So, yeah, just what do you think? What were your thoughts about that clip?

Brenton Erickson [00:35:05] So I think it's interesting that the Church filed an amicus brief in that case. Right. Because the revelation, and I'll put that in air quotes, the revelation on race and the priesthood came out in 1978. But my understanding is the church, you know, while it definitely discouraged interracial marriage before the 1978 revelation, I believe it still continued to discourage interracial marriage even after that revelation, although they tried to shift it to more like cultural difference, concerns about marriages lasting instead of just straight up, you know, racism. It's interesting that they filed that brief. The church has, they've always been on the ball with this. They're always really good at protecting their, their legal rights as much as they can. I mean, Dallin H. Oaks famously, in my mind, and I think in the mind of most people, he invented Title 9 exemptions for religious universities.

Gerardo Sumano [00:35:57] Right.

Brenton Erickson [00:35:57] That statute passed and he wrote a letter to, you know, I don't know if it was the Department of Justice or Congress or whoever it was, but he famously wrote a letter just saying, in my view, we don't have to comply with any of this. And they just immediately agreed. We're like, yes, you're right. So he, They've always been protecting this. I think they're concerned about becoming a pariah.

Brenton Erickson [00:36:19] The main legal difference here is we don't have an Equal Rights Amendment, which is another reason the Church fought so hard against the Equal Rights Amendment. We don't have an amendment that explicitly prevents discrimination on the basis of sex. And I think if we did have a constitutional amendment that did that, these questions would be different because like even Justice Gorsuch, even some conservative justices have acknowledged if you're going to treat someone differently because of who they want to marry, at the end of the day, that's discrimination on the basis of sex. Right. On the basis of. You don't think they are behaving in a way that someone with their biological sex should behave.

Brenton Erickson [00:36:57] Right. So that's why the Church fought against the Equal Rights Amendment. That's why they still oppose those kinds of changes. Yeah. They do not want BYU to become the next Bob Jones. And as long as the Supreme Court keeps Issuing these decisions that say that places like BYU are central, honorable institutions in our society, then in their mind, they won't become Bob Jones.

Gerardo Sumano [00:37:22] Right, Totally. Yeah. I wanted to just display some graphs that I made just, you know, earlier today that just shows the Supreme Court who cons, you know, what were the justices that were on the Supreme Court by the time same sex marriage was declared a constitutional right? Who were the ones that voted against and who were voted for it. And I thought it was really interesting, you know, especially, you know, comparing which justices voted or dissented on this on the case, uh, on 303. Creative. Uh, so, yeah, so here is, uh, the graph. So we have nine justices, you know, at the Supreme Court.

Gerardo Sumano [00:38:07] This is. This was the case on Obergefell. And there was a majority, you know, that voted the. Or, you know, said that marriage equality was a constitutional right. And the justices were Justice Sotomayor, who she. She's still at the Supreme Court today. Justice Keegan, Justice Brier.

Gerardo Sumano [00:38:29] He. Brier is not in the Supreme Court anymore. He's been replaced by, uh, President Biden's appointee, uh, Justice Kentucky, Katanji Jackson, Katanji Brown Jackson, and Justice Kennedy. And so we have those four justice. Those four justice. Sorry, and I'm missing one.

Gerardo Sumano [00:38:51] Ginsburg. Yeah, sorry. So there's five. Five justices. Ginsburg is not longer in the Supreme Court. But yeah, those were the five justices. It was a, it was a narrow decision, you know, five to four. Who. And this was what gave LGBT people the right to marry who they love. And then when we go, you know, to what was the. Who voted for and. And. And who dissented on yesterday's opinion.

Gerardo Sumano [00:39:19] You know, we have basically the same justices that didn't agree with Obergefell are still, you know, voting against that. Right. So we have Justice Thomas, Justice Alito, Justice Roberts, and then the new justices that were appointed by President Trump, Kavanaugh, Barrett and Gorsuch, those were the six justices who voted conservative justices who, you know, sided with the web designer. And then we have the three liberal justices, Sotomayor, Keegan and Jackson, who dissented.

Gerardo Sumano [00:39:56] So, you know, I think those two, to me, seeing those was, you know, really eye opening just to see, you know, who, Who's. I'm not saying that, you know, the justices are making their decisions better. What on this case is whether they agree that, you know, oh, I don't agree that marriage equality should have been ruled a constitutional right. So I'm going to vote against here. But, but, you know, it shows a good picture of, you know, what, where, where we're at today with what the Supreme Court's decisions are coming and, and what their opinions are. And I just, I don't know. I don't know. Brenton, if you have any comments about that.

Brenton Erickson [00:40:37] No, I agree entirely. I think that's why it's important to watch groups like the church and ADF and these other organizations. With this huge change in the Supreme Court, this 6:3 super majority for conservatives, they have a lot of potential to change and even entirely unwind certain cases. So in the Dobbs decision That overruled Roe vs Wade, Justice Thomas famously just openly said that he thinks the Court should revisit Obergefell. He not just Obergefell. Justice Thomas said that he thinks the Court should revisit Lawrence versus Texas, which is the Supreme Court case that told states they could no longer criminalize homosexual behavior. Right. So it's not just that we might lose gay marriage.

Brenton Erickson [00:41:21] There are justices on the court, justices on the court who in theory, if they were given a chance, would allow states to criminalize homosexual behavior. Again, I don't know if that will happen, but I do think you're already seeing with Obergefell what we saw with Roe with a. Roe was challenged pretty soon after it came down, you know, a few years later. And within 10 or 20 years you had a major case that upheld Roe, like kept it in place, but seriously undermined it, limited it. And that's what I think you saw yesterday. Obergefell is still the law of the land. Marriage equality is still a constitutional right.

Brenton Erickson [00:41:56] But with a decision like yesterday, like you said, Gerardo, same sex marriage is now second class marriage, constitutionally speaking, compared to heterosexual marriage. That wasn't the case after Obergefell. After yesterday it is. So even though Obergefell is still good law, there's a chance that over the next few years you could just see that. Right.

Brenton Erickson [00:42:19] Really, really hollowed out essentially. Like if there's a bunch more cases like the ones we had yesterday, constitutional quality for queer people is going to start to feel really superficial.

Gerardo Sumano [00:42:31] Yeah, I mean, we can see it with what happened with abortion. You know, not saying I'm pro against any, but you just look at the history, how we kept being challenged. You know, they keep, they, the Supreme Court kept weakening the right for abortion. You know, that was given originally Roe v. Wade, until eventually it was completely overturned. You know, I mean, who, who said, like, who's to say that that's not going to happen with same sex marriage? We, we really don't know.

Implications of the Supreme Court Ruling

Gerardo Sumano [00:43:01] But yeah, now just to, to finish, Brenton, I wanted to discuss with you for, for, wanted to hear your opinion about the decision overall, what the case was. You know, a lot of people are saying, well, the Supreme Court really ruled.

Gerardo Sumano [00:43:18] They made the right decision. They upheld the First Amendment right to free speech. And what's your overall thoughts and opinions on, on the, on the ruling? And, you know, obviously there's three judges who do not agree on the outcome, and they wrote a pretty extensive dissent opinion, you know, that was over 30 pages just explaining why they didn't agree with the majority of justices. But I wanted to hear, Brenton, your thoughts about it.

Brenton Erickson [00:43:49] I think the main takeaway is that this decision shows that this conservative court is generally going to place religious freedom. And here they said it's freedom of speech, but it's religious speech. So I'll say they're going to place religious speech over any other constitutional right, except for maybe racial equality. Right. That might, that might still be considered, you know, essentially a super right because of the history of the Civil war and the 14th amendment and all these other things.

Brenton Erickson [00:44:18] So I think we're going to see a pattern going forward where if conservatives are able to bring cases that are persuadable, the court is going to favor religious freedom and religious speech over equality. The main, I'll say this case was confusing.

Brenton Erickson [00:44:36] Some conservatives would argue that this case only protects, you know, conservatives from being forced to make really, really explicit statements in favor of gay marriage. But my reading of the case is it allows people like Ms. Smith to just refuse to do any kind of website for a gay wedding. And I think it also would allow someone who makes custom wedding cakes to refuse to make a cake specifically for a gay wedding, period. Whether that cake has writing on it or not, like, it could just be a cake.

Brenton Erickson [00:45:05] So that's my takeaway. I think it gives the court a lot of power. They left a lot of questions about what falls under the category of pure speech and what doesn't. So there's just going to be more and more cases down the line where the court will be letting us know as queer people what businesses can turn us away and which can't. Right. And a huge change in this law, really, as.

Brenton Erickson [00:45:29] As emphasized over and over again in the dissents, is that this is the first time the court has ruled that public accommodation laws have this exception for religious speech. Right. There's, there's been plenty of cases in the past where, you know, a state can't force some group that puts a parade together to allow other people into their Parade because we have freedom of association and you're allowed to, like, pick what group you want to be in. There's a famous case where Boy Scouts of America wasn't required to allow a gay scout leader to remain a scout leader because it's, you know, it's a private group.

Brenton Erickson [00:46:03] It has freedom of association. And the conservative justice has tried to pretend like they weren't doing anything new. But the thing that really is new in this case is that you can have a business that's open to the public where you claim to just accept essentially any business that comes your way and yet have this exception for religious speech. That is shocking. Like, it's shocking. I think one of the most upsetting arguments for me that came from the dissents was that there's this one case where this school didn't want to follow a public accommodations law that required them to put up signs. These signs would direct you to certain meetings, like, say, such and such group is meeting in this room at this time, because they felt like that was, you know, supporting that group.

Brenton Erickson [00:46:47] And for this school, it was. The signs they didn't want to put up were signs for military recruiters. Because this school, people at the school had really, really strong beliefs about pacifism. So they didn't want to have to put up signs that said, you know, the military recruiter is meeting in this room. You know, go sign up.

Brenton Erickson [00:47:04] And the court said that they didn't have to do that or, sorry, my bad. The Supreme Court in that case in the past said that these students had to put up those signs saying that military recruiters are meeting in a certain room, even though they clearly disagreed with helping military recruiters in any way. And yet, in this case, this person doesn't have to do anything, you know, that seems to promote gay marriage in any way. So it's just. There's a lot of hypocrisy in this case and a lot of uncertainty. And I would keep an eye on the church and on these other groups.

Gerardo Sumano [00:47:38] Yeah, yeah. Just something that was really interesting to me on the oral arguments. The oral arguments we were talking about at Brenton are some of the most interesting parts of these cases. And I was able to listen the oral arguments. They're really, really interesting to listen because it's the judges asking questions and basically debating with. Going back and forth with the lawyers who are representing, you know, each of each of those. The. The. Either the plaintiffs or the people, you know, that are defending themselves. So it's just.

Gerardo Sumano [00:48:09] Anyway, so on there, you. I think it was Justice Sotomayor who was saying, how is this your speech if you're basically, you're writing something on the website that someone asked you to write, you know, like you're not saying, me as the web designer, I'm inviting someone to the wedding is, you know, Brenton and you know, whoever inviting people to their wedding. So it's not your speech. And then there was other, this other question about if you're using templates like how is this your writing speech is and they're telling you what to write. Like, there's nothing really that you're customizing here. So, you know, even with those arguments that I didn't think the, the lawyers were able to really respond to these questions, you know, it really is.

Gerardo Sumano [00:48:53] The case still came her way. And you know, just, I don't think it was shocking for anybody, but, you know, it's just interesting to just listen what, you know, again, there's three justices who dissented from, from, from, from the majority decision. So it's not, it's not black and white. I think these things are not supposed to be black and white. I mean, we're all, I think a Mormon stories. We try to not be partition and everybody has the right to their opinion and I think we, we try to cover it that way. But yeah, I mean, me and Brenton both part, as part of the LGBT community, obviously we, we have certain bias and interest in these types of cases because we're part of this community who are, you know, basically being discriminated by these types of rulings and, or, and, or legislations and.

Gerardo Sumano [00:49:45] But yeah, again, I wanted this episode to be really quick and short. Thanks everybody for joining us and please be good to each other. And if you have any questions, feel free to email us@mormonstoriesmail.com Please feel free also to visit our website and, and donate. Your donations really help to make this to keep the podcast alive. And yeah, we'll see you and the next episode of Mormon Stories podcast. Goodbye everybody.

Transcript © 2026 John P. Dehlin. All rights reserved. Brief quotations are welcome with attribution and a link to mormonstories.org; all other use requires written permission.