Daily Times

Has America hit political bottom? The Supreme Court may have demonstrated that there is no bottom to which America can descend. The 303 Creative v Elenis ruling just might do that. But here is the broader context.

Last week’s column observed that a former president has been twice indicted and faces more charges for committing high crimes and misdemeanours beyond flagrantly disregarding the handling of classified material and obstructing justice. Fomenting the January 6 riots and tampering with an election could be grounds for new indictments. And the loss of a civil case for sexual harassment resulted in a five million dollar award for the plaintiff.

Half of the current president’s party believes he is too old to seek a second term. He has been accused of accepting many millions of dollars in bribes. A partisan committee of the House of Representatives is investigating those allegations that include his son Hunter. And entirely contradictory statements of the Attorney General and the Assistant Attorney General who brought indictments and a guilty plea from the younger Biden make the relatively light sentencing seem suspicious.

Then, the last bastion of the US political system, the Supreme Court, made a landmark ruling in 303 Creative v Elenis. Lorie Smith, a web designer, was allowed to forgo as clients a same-sex couple based on religious grounds. But there was a small problem. The case was a complete hoax. There was no litigant even though Smith claimed she received a request to design a website for the wedding.

Fomenting the January 6 riots and tampering with an election could be grounds for new indictments.

In a statement to The Washington Post, the conservative legal organization Alliance Defending Freedom which assisted Smith with legal representation gave this extraordinary explanation for its action: “Whether Lorie received a legitimate request or whether someone lied to her is irrelevant. No one should have to wait to be punished by the government to challenge an unjust law.”

The Supreme Court found that: To clarify her rights, Ms Smith filed a lawsuit seeking an injunction to prevent the State from forcing her to create websites celebrating marriages that defy her belief that marriage should be reserved to unions between one man and one woman.

The majority opinion of the Court written by Associate Justice Neil Gorsuch read: “The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands. Because Colorado seeks to deny that promise, the judgment is REVERSED.”

Therein lies a glaring contradiction. How can an opinion that argued religious beliefs were the basis for the ruling be decided under the First Amendment’s freedom of speech guarantee and not freedom of religion? That makes no sense. Or, does the Court believe that the First Amendment places free speech above freedom of religion and the right of assembly and grievance?

The consequences are potentially nightmarish. Does this precedent now mean that as soon as a bill is signed into law, it can be preemptively challenged through a specious lawsuit from an anonymous source on a website invented for that purpose? If so, this neuters the legislative process and thus unbalances the separation of powers among the three branches that conceivably created near-permanent gridlock to governing. It is clear how this has been exploited in the 303 Creative cases. And what about standing laws that some find offensive?

Suppose someone sought an injunction based on the religious conviction that left-handed or redheaded people were evil and designing websites for them violated that belief. Indeed, Americans once burned witches based on religious beliefs. Can the Court be empowered to determine, which religious beliefs are valid or not?

Under that standard, Osama bin Laden could have been exonerated because his extreme view of Islam, hence his religious belief, made killing infidels his duty. This is reductio ad absurdum on steroids.

And how could potential enemies exploit this ruling? In the rare event that Congress passes a defense appropriation bill and the president signs it into law, on dozens of attorneys’ websites, constitutional challenges could be raised. Lawsuits ranging from alleged violations of environmental, discriminatory, anti-competition and other regulatory laws could be filed. Conceivably, these cases could block defence spending for an extended period.

The Supreme Court has made what appears to be a colossally misguided judgment that could lead the way to far worse. Given that 2024 could be a rematch of the 2020 Biden versus Trump election, are we in political free fall? If the answer is yes, sound the collision alarm.

He writer is a senior advisor at Washington, DC’s Atlantic Council and a published author.