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Pope Francis, the Supreme Court, and American Constitutional Law

Citing Pope Francis, “27+ Lay Roman Catholics” who are “practicing members of the Roman Catholic Church,” filed a friend-of-the-court brief in the much-discussed case of 303 Creative v. Elenis.


A group of American lay Catholics has asked the Supreme Court of the United States to incorporate statements by Pope Francis into American Constitutional decision-making.

On December 5, the Court heard oral arguments in the much-discussed case of 303 Creative v. Elenis. Loren Smith, who designs websites and online graphics in her business, 303 Creative, had petitioned the Colorado Civil Rights Commission in 2016 concerning what enforcement they would possibly bring against her if she expanded her business to designing wedding websites without including same-sex marriages.

In 2008, the state of Colorado had amended its “public accommodations” law to prohibit discrimination based on “sexual orientation.” Smith has never discriminated against any customer based on race, sex, creed, or sexual orientation.  When the state told her that her plans would violate the law, she filed a federal constitutional lawsuit alleging that her work involved and that its content was creative speech, that she was a Christian who believed in the biblical account of marriage, and that any coercing of her to accept customers for same-sex marriage would be a violation of the Free Speech Clause of the First Amendment.

And, of course, this was the latest version of small businesses owned by Christians seeking relief from the state of Colorado.  In the now famous Masterpiece “cake case,” the Supreme Court ruled in 2018 that a Colorado Christian baker could not be forced to design a cake celebrating a gay marriage.  Designing and making such a cake was an exercise of his speech, and the Court upheld the baker’s contention in a decision that was somewhat equivocal constitutionally.

Citing Pope Francis, “27+ Lay Roman Catholics” who are “practicing members of the Roman Catholic Church,” filed a friend-of-the-court brief in 303 Creative supporting the state of Colorado and opposing Smith.  They state their legal interest in the case:

Pursuant to the teachings of Jesus Christ, as emphasized by Pope Francis, our faith supports welcoming all people, including gay, lesbian, bisexual, and transgender individuals, with closeness, compassion and tenderness.

The brief directly quotes the Second Vatican Council’s Lumen Gentium that the laity “are empowered  — indeed sometimes obliged – to manifest their opinions on those things which pertain to the good of the Church.” And as a contemporary version of the same principle, the brief cites Pope Francis who said in a 2013 press conference, that bishops should recognize that “the work of a bishop” is sometimes “behind the faithful because the faithful can often sniff out the path.”

As an example of the laity leading the bishops, the 27 Lay Catholic state that they are acting “upon the authority of 69% of American Roman Catholics who, according to polling support same-sex marriages” and Americans in general, “estimated at 7.1%,” who self-identify as LGBT.  As additional authority, they cite the work of Jesuit priest Fr. James Martin, who in his official Vatican position as a Consultor to the Dicastery for Communications “helps to communicate the welcoming message of Pope Francis.”  Much published and traveled, Martin is known for his recent book Building a Bridge in which, the brief points out, Martin contends that “LGBTQ individuals should be welcomed and accepted in the Church and must never be judged exclusively by their sexuality.”  On the same theme and as another authority, the brief cites the work of Fordham University professor Fr. Bryan Massingale, a former president of the Catholic Theological Society of America.

Their brief extensively cites law journals and other academic writings. As for the direct “legal” arguments, the 27 Lay Catholics cite the landmark Employment Division v Smith (no relation to Loren Smith) decision of 1990, in which the Supreme Court ruled by a 6-3 vote that the state of Oregon could enforce a state law prohibiting the possession of peyote.  (Yes, Oregon.) Two Native Americans who were fired from their jobs for having ingested peyote sued, alleging that the ingestion of peyote was part of religious rituals of the Native American Church and, therefore, their free exercise of religion had been denied.  With Justice Scalia writing for the 6-3 majority, the Court ruled that the Oregon statute was a “neutral law of general applicability” affecting all citizens equally and was not targeted at Native American religious practices. Therefore, the Court concluded, the two men did not have a religious exemption from the law under the Free Speech Clause of the First Amendment.

The 27 Lay Catholics argue that the same principle should be applied against 303 Creative.  Colorado had amended its public accommodations law to bar businesses “open to the public” from discriminating against customers based on “sexual orientation.” This was a law governing everybody, including 303 Creative, which should not be granted a religious “exemption” to it, they say.  Thereby, the 27 Lay Catholics join the contemporary rhetorical tactic of substituting the negative and judgmental “exemption” describing people who are claiming their constitutional “right” under the Free Exercise Clause.

Again, Loren Smith, 303 Creative’s owner, had never denied business to any customers based on any self-identification.  Her constitutional argument concerning the designing of certain websites or graphics was that her words would be coerced and her free speech rights denied. The 27 Lay Catholics argue that the “impact” of upholding the position of 303 Creative would be to “marginalize LGBTQ+ individuals” and, quoting a professor, that “theocratic beliefs” do not have “a right to impose those beliefs.”

Nowhere in their brief do the 27 Lay Catholics exhibit any sympathy for, attempt to understand the substance and motivation of, or concede the constitutional integrity of Smith’s position.  Indeed, their attitude is sweeping and vituperative: they oppose the denial of business services to LGBTQ+ individuals that is “purportedly on religious grounds.” (emphasis added).  And: “We must never have a nation where certain people are always advantaged because of religion, while at the same time and to the contrary, certain people are disadvantaged for who they are due to their gender or sexual identification.”

Additionally, while the forty-three-year old Smith case was a major precedent of the Court at that time and for at least two decades after, its significance has been reduced by later free exercise decisions. In the most recent such case, the 2021 decision in Fulton v. City of Philadelphia, the Supreme Court ruled 9-0 in favor of Catholic Social Services concerning its refusal to place foster children with gay couples.  To be sure, the 27 Lay Catholics filed a brief in that case as well, opposing the position of Catholic Social Services.  There the Lay Catholics said that the “message of inclusion” of Pope Francis” had been “conspicuously disregarded” by Catholic Social Services in Philadelphia.

The administration of Catholic President Joe Biden filed a brief and participated in oral arguments against Loren Smith.  Catholic Speaker of the House Nancy Pelosi led 122 other members of the House in likewise supporting the state of Colorado.  On the other hand, the US Conference of Catholic Bishops filed a brief together with four other Christian churches and groups in supporting Smith.

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About Thomas R. Ascik 22 Articles
Thomas R. Ascik is a retired attorney who has written on a variety of legal and constitutional issues.


  1. Interesting coincidence—and signaling—that the lay attorneys would note that “69% of American Roman Catholics…support same-sex marriages.” Sixty-nine being the symbol for mutual and simultaneous oral sex.

    Can’t make up their minds or whatever and in an awkward position, these laid attorneys with their index finger testing the wind and their thumbs firmly projected somewhere else.

    The best attorneys that money can buy. The mobocracy-inclusiveness of the “Heil Hitler” salute!

  2. It seems to me, a non-attorney, that there is a significant difference between an individual or group that actively solicits or targets another individual or group to force compliance with their beliefs (religious, civil, or domestic), and an individual or group that makes voluntary compliance with their beliefs available. Thus, a bakery, web design firm, or any other business that makes its product available to the public lets the public know what it offers which, if the public doesn’t want it, is free to go elsewhere, unless there is an ulterior motive.

    This would seem to be common sense, e.g., someone who goes into a Mercedes car dealership and demands a Volkswagen, or vice versa, then sues because he is refused service, would not be treated seriously by a court. If the same person went to a Volkswagen dealership and was denied service when he wanted to purchase a Volkswagen, he would have a case, but why should he be able to force a Volkswagen dealer to sell him a Mercedes?

    Yet (it seems to me) that is what happens when someone — knowing full well the bakery or web designer provides services for traditional marriages — insists on what is manifestly a different product or service and has the court enforce that demand. This appears to force someone to provide a good or service for which there is no “implied warranty,” and for which the provider has explicitly claimed lack of competence.

    That being the case (or so I learned in Business Law), if the provider bakes a bad cake or creates an ugly web design, the customer has no legal recourse and must pay, regardless of his satisfaction or lack thereof with what was provided. The provider, on the other hand, has the perfect defense: he claimed lack of competence prior to being forced by the court, and, having warned the customer in advance, cannot be held liable for providing a substandard or unacceptable product.

  3. It’s almost as if those wonderful 27 lay Catholics are intent on proving Fr. Pavone’s case against the American bishops all by themselves.

    So often the American Catholic Church seems like the shock troops of the Democratic Party.

    Which is exactly how the 27 lay Catholics — and, yes, Pope Bergoglio, too — apparently want it.

    Very inclusive — with not a single sin of lust forbidden any more.

    Unfortunately, it’s all very thin gruel in comparison with the eternal truth of the Eternal Word.

  4. In my opinion, the Constitution protect the right to discriminate against anyone for any reason. Of course some reasons my be silly but others are not. The LGBT gang and the legal recognition of a homosexual union as a marriage constitute a serious issue. These destabilize society and must be thwarted. They attack the logical basis of a lawfully organized society, because in their system logic does not exist. Only WILL exists. They dismiss and reject the Moral Law, the principle which holds society together.

  5. There is a slight but all-important difference between relating to active, unrepentant LGBT practitioners with Christian love (Love the sinner, Hate the sin) and forcing a Christian to take actions that will place the Christian in a position of being required to advance and entrench active, unrepentant LGBT practitioners in their Biblically-condemned abominations.

  6. The Catholic faith teaches to hate the sin and love the sinner. This brief left out the hate the sin part and does not include the fullness of the Catholic faith. It is obvious that Colorado is trying to suppress freedom of religion.

  7. Fr. Raymond J. de Souza tries to position the Pavone situation on obedience and I think this misses the reality. They want to alter the way the apostolate is presented and Pavone is a stick in the mud to that.

    By using this image I do not demean Pavone and I exalt The Cross, the great post in the ground.

    So I say Fr. de Souza goes off on a tangent with the various comparatives he offers. In the very process of doing this he adds to the effort to a) relativize pro-life apologetic and witness, b) delimit their breadth and depth and c) uphold the alleged justifying of these interventions.

  8. Is not having faith a component with thinking reason of in uncertainty belief when their inseparability and qualitative equality is kept?
    If precedents of what Pope Francis has said are to be used, should not the precedent be relevant of his keeping inseparability and qualitative equality of justice and mercy in the cases on 10 June 2021 of his exercising an absolute power of simultaneous authorisations of his procreation role gift and his insuring his need of union of his identity in the cases respectively of the Vatican state, Cardinal Angelo Becciu and nine other, citizens/employees alleged embezzlement of Pope Francis’ charity donations and the “Italian state Parliament “Zan” anti-homophobia bill as an unacceptable risk of fraud on Pope Francis’ insuring his need of union of his consecrated celibate marriage vowed to man in Christ identity with the identities of others in consecrated marriages.

  9. I just went into massive debt with the Department of Education, over a pedigree pitch for BLM and the gay lobby, at a historic Catholic university. The degrees are worthless to anyone actually sincere about their beliefs because the entire social justice network is now joined at the hip with this garbage ideology. Francis and his flying monkeys need to bite their tongues before someone pokes an eye out.

  10. Interesting mention of education’s twists and turns in the US, FOX News has 2 reports, Columbia’s strange tuition fees for journalism and a high school withholding the full score of awards on students’ transcripts.

    Your paths to becoming qualified in something need to be studied with care and likely you should update your insights about your environments as you progress.

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