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Brian Lehrer: It's the Brian Lehrer show on WNYC. Good morning, everyone. Let's listen to how justices on the Supreme Court spoke from the bench yesterday about the latest clash of rights case involving same-sex couples getting married and businesses that provide wedding services.

Justice Neil Gorsuch: Last time around we had cakes, as either expressing the maker's point of view or the couple's point of view and that's really at the heart of a lot of this.

Brian Lehrer: Justice Neil Gorsuch there remembering the Masterpiece Cakeshop case from 2018. Do you remember that? I'm sure you do. The Cakeshop won, but it did not set a sweeping precedent, and that's why they're back for this case that the court heard yesterday called 303 Creative LLC v. Elenis. 303 Creative is a wedding services website in Colorado being started by Lorie Smith who says her brand of Christianity will lead her to deny services to same-sex couples.

She doesn't quite put it that way, but that's what it amounts to. Colorado is one of 30 states we'll mention with an anti-discrimination law that requires businesses to offer the same services to everyone without regard to race, religion, gender, or sexual orientation. Interestingly, the other 20 states, I guess from Nina Totenberg's report, do not have those protections, but that's one of the things that we'll touch on with our law professor guest in just a minute. The clips of the justices that will play are all about other kinds of choices that businesses may or may not be able to make depending on how this case comes out. Here's Justice Amy Coney Barrett.

Justice Amy Coney Barrett: Well, it might be an unusual case, but the problem, and what a lot of the hypotheticals are getting at, is however we decide this case obviously applies to others. What if we say it's not The New York Times, but what if we say that it's a gay rights group that wants to publish gay rights announcements online all year round, not just for Gay Pride Month, because it wants to celebrate love in that community? It publishes only same-sex marriage announcements and turns away opposite sex. Can the gay rights organization do that?

Brian Lehrer: Justice Barrett there. We'll get into that particular example that she gave. Joining us here is Columbia University Law School Professor Katherine Franke. She is Director of Columbia Center for Gender and Sexuality Law and Founder of the Law, Rights, and Religion Project, which describes itself as a think tank based at Columbia Law School that develops policy and thought leadership on the complex ways in which religious liberty rights interact with other fundamental rights. Obviously, this is right in their sweet spot. Professor Franke is also the author of the books Wedlocked: the Peril of Marriage Equality and Repair: Redeeming The Promise of Slavery's Abolition. Professor Franke, thanks for coming on for this. Welcome back to WNYC.

Professor Katherine Franke: Good morning, Brian. Great to be with you.

Brian Lehrer: Can you start with a little bit of background? What did the Cake Masters case settle in 2018 and what did it not settle?

Professor Katherine Franke: Well, that case it grows out of what I describe as the wedding industrial complex of all of the different kinds of providers that are part of a wedding, whether it's the people who are designing the invitations or the cakes or the flowers or any of that. They have religious or faith-based objections to the idea that same-sex couples can legally marry. In Masterpiece Cakeshop, we had a baker who didn't want to make a cake for a same-sex wedding of two men.

The big constitutional questions around religious liberty and free speech were at issue in that case, but the court ended up deciding it much more narrowly because there was some evidence, and actually this only came up at the oral argument in the case. It wasn't something that had been part of the facts or the briefing in the case prior to oral argument, but the court looked to evidence that maybe some of the commissioners of the Colorado Human Rights Commission held anti-religious bias towards Jack Phillips, who's the cake baker.

The court said, look, these human rights organizations can't target or discriminate against religious people who may have an objection to complying with the law. The holding was actually very narrow in the Masterpiece Cakeshop. I think many court watchers felt like we dodged a bullet in that case but the bullet is back in this one.

Brian Lehrer: In this case, Lorie Smith's lawyer argued that Smith, as a web designer, is not asking for the right to discriminate on the basis of sexual orientation. She's an artist who doesn't want to be compelled by the state to publish a message she disagrees with. Therefore, it's not just a First Amendment religious liberty case. It's also a First Amendment freedom of speech case, freedom from having the government tell you you have to say things you don't believe. Strong argument according to you?

Professor Katherine Franke: Well, it is. I would note that she also brought a religious liberty claim and tried to raise both the free speech and the religious liberty issue with the Supreme Court, but the court only took the question of the free speech issues that are at stake here. They teed up both of those questions, but the court was so busy in the last few terms with religious liberty, they're now turning to free speech in these kinds of cases.

I will say that these cases are underwritten by a right-wing evangelical legal organization, the Alliance Defending Freedom, that has been very creative in finding new ways to protect faith-based objectors to a range of public policies, whether it's rights to abortion, trans kids rights, trans adults rights for that matter, and also the rights of same-sex couples. It's this free speech argument that they've been working on in the lower courts for quite some time, and now the court is prepared to take it up.

Her claim is that she's being compelled to speak and endorse a message that she disagrees with. It doesn't really matter that she has a religious disagreement with the idea of same-sex marriage. When we're talking about free speech rights, the state can't compel you to speak or endorse any particular viewpoint, whether it's religious or otherwise.

While the specter of religion was certainly lurking in the courtroom yesterday, the outcome of the case doesn't turn on the fact that it's a religious objection she has to same-sex marriage but more that the Colorado Human Rights Ordinance or law that requires her as a business to serve everyone equally and to not discriminate on the basis of race, ethnicity, sexual orientation, sex, et cetera. That forcing her to publish a wedding invitation means that she is endorsing same-sex marriage in some way. That to her is forcing her to speak or say or endorse some idea that she has deep disagreements with.

Brian Lehrer: For example, I heard someone, and I don't even know if this was in the court or if this was a commentator later, but someone raised the hypothetical of a standard message that a website like hers may adorn itself with, "God bless this union," but if she thinks God actually condemns this union rather than blessing it, should she be forced to publish that on her website? What's the argument against that argument?

Professor Katherine Franke: Well, the underlying question that was debated a great length yesterday in between what were really racist and homophobic things being tossed around in the court in a light and funny way, but the underlying question is whether publishing a website for someone else's wedding implicates the owner of that website in any way in the content of that website. Most of the wedding invitations say, "Person A and Person B fell in love. Our special day is May 3rd. Please join us at such and such hotel. Here are the places where we're going to register for you to give us stuff." I think a common sense understanding of that is that the platform is not endorsing the content. They're just helping this couple invite people to their wedding.

Brian Lehrer: Isn't that what Twitter says about disinformation? The platform isn't putting it out. Individuals can write whatever they want.

Professor Katherine Franke: Well, that's true, but does Twitter have First Amendment rights in the same way that Lorie Smith is claiming that she does? I think the Twitter question is a little bit of a different one, but what they went back and forth about in this argument in the case yesterday was really the degree to which she is in any way implicated in that content. Now, if she were publishing something that would say likely to incite violence towards someone, which was sometimes the criticism about Twitter, that raises a different question about the effects of the speech or the information that is on the website, but there's no allegation here that the speech that goes into a wedding invitation or the information that goes into a wedding invitation will cause anything to happen in the world other than getting people to a marriage or to a wedding.

Brian Lehrer: If her platform is used for an invitation, for example, that says, "We love our gay community and are so happy that same-sex marriage is legal, and we love each other, and we're going to get married, and here are the details," then her website is being used for that. Does that change that?

Professor Katherine Franke: I'm not sure it does because she still is not endorsing the message there. The example that came up quite often in the argument yesterday is say there's the Klan or some-- say you're a Democrat and you run a website and there's a Republican message that someone wants to publish on the website, the reason those are false or distracting examples is that being a Republican or being conservative or being a racist is not a protected class under the Colorado human rights statute.

It's legal to say, "I don't want to publish that message because I disagree with it." The Human Rights Commission can't say, "Yes, you should." What's different about this case is that it's a protected class that is being denied access to her business. What we have I think here is a fundamental tension that happens all the time between two really important rights. On the one hand, speech rights, and I don't think that the speech rights that she's raising are trivial. I think there is some merit to her claim.

The example that you, Brian, just made I think is one of them. On the other side, there's also the equality rights, not just of the LGBT community, but race-based equality, and Justice Sotomayor pressed very hard on disability rights, et cetera. How is the court going to balance those rights? That really didn't come up in the arguments at all, unfortunately.

Brian Lehrer: Listeners, if it's anti-discrimination law versus religious liberty or freedom of speech, which Professor Franke is telling us is the central argument by the plaintiff in this case, when do you think one or another should prevail and can they somehow coexist? 212-433-WNYC, 212-433-9692, or tweet @BrianLehrer with any questions you have as well for Columbia law professor, Katherine Franke, Director of Columbia Center for Gender and Sexuality Law and Founder of the Law, Rights, and Religion Project. 212-433-WNYC or tweet at @BrianLehrer.

We'll play some more clips here in a minute, including the KKK example that you were just alluding to, but can I get your take on that Amy Coney Barrett clip that we played a shoe on the other foot hypothetical where she asked, "Can a gay rights group publish only wedding announcements for same-sex couples because their mission is to celebrate that kind of love, or if this web designer can't make choices like that, then would the gay rights group have to accept announcements from hetero couples as well?" How did you hear that?

Professor Katherine Franke: Well, how I heard that is this is something I teach my first-year law students from day one is that part of why our equality laws or equal protection laws under the Constitution are so ineffective in this country is that we take a formal approach to equality, which is to say that treating a disfavored group differently than the favored group, like in the case of maybe affirmative action, is just as bad as discriminating in the other direction.

The example of, say, a gay pride website publishing only same-sex marriages, there that's equality enhancing, it's lifting up a disadvantaged group in a way that's designed to repair discrimination in the past. Our equality infrastructure doesn't have a very good way of differentiating between equality-enhancing actions and equality-denying actions. Coney Barrett's, I think, example is certainly emblematic of the Supreme Court's inability to see the difference between repairing past discrimination by favoring a discriminated-against group or discriminating against that group in the first instance. That would be how I would have responded had I been standing there, but thankfully I wasn't. [laughs]

Brian Lehrer: [laughs] Let me take you down that rabbit hole one more step because people on the right often use that kind of argument to say, "Oh, so people who've been discriminated against in the past or groups that have been discriminated against in the past now have special rights." I think we have heard that phrase going all the way back to the civil rights era when the segregationist say, "Oh, why should Black people have special rights?"

You are saying that these protected classes, and that's what Colorado law identifies, that's what many laws identify, specific protected classes that are protected because they were discriminated against in the past. It's race, religion, gender, sexual orientation, those primarily, but then the other side says, wait, those people have special rights, why should they have special rights?

Professor Katherine Franke: Yes. Well, it's been an effective way to re-message what really is intended I think in so many cases to be as a kind of repair for past discrimination. It's a tough question of how can you create a more just society without taking into account the effects of past discrimination and creating remedies that address those past effects. That's not special rights. It's about acknowledging that we live in a society that is structured around inequality that passes for neutral rules all the time.

If you look at the affirmative action case that was just argued in the Supreme Court a couple of weeks ago, on the one hand, the Harvard or University of North Carolina or any of the universities can't take race into account in order to make sure that they have a racially diverse class, yet they can favor, let's say, the guys that are doing fencing, which is overwhelmingly white people, or the children and grandchildren of other people who went to Harvard, which also has the effect of favoring white people.

It just doesn't read as or show up as a race-based preference. To disable us from being able to take race into account in order to create a more equal world is what this formal equality commits us to. It means that we lock in place the current systems of inequality because we can't reapportion or reallocate privilege in a way that would create a more just future.

Brian Lehrer: Braha in Manhattan, you're on WNYC. Hello, Braha.

Braha: Hi, Brian. Thank you. I've been with my darling wife for 39 years, and we couldn't marry for 25 even then not in New York. What drives me to tears in this debate, especially as it's funded by evangelicals, is one example of a memory of a very dear friend of mine, Fred, whose partner was Steven, they were not allowed to marry, we were told we're anti-marriage, so we're not allowed to marry. Steven had a severe asthma attack.

In those days the word in the LGBT+ community was never go to a Catholic hospital because, and I'll tell you why, Steven had a severe asthma attack and their relationship wasn't recognized, and Steven died alone because they said it was their faith and their right to separate [unintelligible 00:18:58]. That's the kind of cruelty that we know all too well. Thank you very much.

Brian Lehrer: Thank you, Braha. I know that took courage and thank you for getting through it. You got through it, and wow.

Professor Katherine Franke: Yes. It's crushing to hear what to me is a very familiar story. I came up as a young lawyer in the beginning of the AIDS epidemic, and this thing happened all the time. It was more the norm than the exception. I guess one thing to think about in terms of how do we create a world where this sort of tragedy doesn't happen, is marriage the thing that fixes it or should people who are ill in the hospital in desperate need of medical care and to have their loved ones around them, should they be able to have them with them whether they're married or not?

Marriage solves part of the problem, but not really the larger problem of what does it mean to be kin and what does it mean who is your people.

Brian Lehrer: We'll play some more clips here in a minute after a break. I keep saying we're going to play these clips, and then you keep being interesting and so we have these conversations scratches. We'll hear Justice Sotomayor, we'll hear Justice Alito, who I think is the one who brought up the KKK. We'll go from there, but before we take that break, we don't have any Justice Cavanaugh clips, but I see you tweeted yesterday, "Here we go again with Cavanaugh. Let's consider a hypothetical with facts that involve a business that isn't a public accommodation but assume that it is a public accommodation, how should we treat that business?" You were making fun of that hypothetical or that analogy. Can you make the distinction there, though, that you are getting at a business that is versus a business that isn't a public accommodation?

Professor Katherine Franke: Yes. The public accommodation is a term of art in law that actually is confusing in terms of what it reaches. It really just means businesses. Now, if I'm baking cookies in my apartment, and then selling them out on the front stoop of my house, am I doing the same thing that Insomnia Cookies, which is down the road on the Upper West Side, is doing by having a storefront and selling cookies? Probably not.

A little individual entrepreneur like that is not a public accommodation that would be regulated by human rights laws and other things like that. A lot of litigation time has been spent on where does the idea of public accommodation reach its limits and is a kind of business, like a website, within that legal term. What was frustrating about the argument yesterday is that the court kept coming up with these incredibly wacky hypotheticals that tested the boundary of whether something was a public accommodation but there was no question that this woman her business is a public accommodation.

Why a bunch of us who were live tweeting the argument yesterday got so frustrated with all of these complete pie-in-the-sky hypotheticals was that there are no facts in this case. The fact of the matter is Lorie Smith hasn't even opened the business yet. She hasn't even started listing wedding announcements, nor has she turned down some same-sex couple. Normally, the Supreme Court will take a case where there's actually an injury, like something actually happened, that the person sues to get some kind of remedy for, but here, this is just speculative, that down the road she might get her business up and running, and there might be a same-sex couple that wants to list a wedding announcement on her website.

I would just note that the Supreme Court dismissed a case challenging the real tight restrictions on abortion in Texas on similar grounds that nobody has been denied an abortion yet. Go back to Texas, wait until you have a real injury, and then come back to us. What's interesting about where the court is today is that it's almost impossible for them to find gender or race-based discrimination when they look out in the world but they can't help themselves but to imagine religious-based discrimination in cases like this where nothing has actually happened yet.

Brian Lehrer: We'll continue with Columbia Law Professor Katherine Franke. We will play some more clips from the bench from the oral arguments yesterday at the Supreme Court, take more of your calls. Stay with us.

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Brian Lehrer on WNYC as we continue to talk about the latest clash of rights case at the Supreme Court involving same-sex couples getting married and businesses that provide wedding services, this case brought by a web designer named Lorie Smith. She says her brand of Christianity will lead her to deny services to same-sex couples, online wedding announcements, that sort of thing, when she gets it up and running.

We're talking about it with Columbia University Law School Professor Katherine Franke. Katherine Franke is Director of Columbia Center for Gender and Sexuality Law and Founder of the Law, Rights, and Religion project at the Columbia Law School as well. Now we'll get through a couple of those other hypotheticals, and it's such a gift that we now have same-day audio from the bench, from the Supreme Court, also of the lawyers making their cases.

We can play you some of these things. A number of the hypotheticals in the oral law argument yesterday that were supposed to be comparisons on which the justices could base their decision had to do with race. Here's Justice Sotomayor with one.

Justice Sotomayor: How about people who don't believe in interracial marriage? I'm not going to serve those people because I don't believe Black people and white people should get married.

Brian Lehrer: Justice Sotomayor. Here's Justice Alito.

Justice Alito: He doesn't want to have his picture taken with a child who's dressed up in a Ku Klux Klan outfit, that Black Santa has to do that.

Brian Lehrer: Sorry, that was a shorter version of a longer clip there. The setup may not have been clear. He was talking about a Black store, Santa Claus, and a hypothetical kid wants to take his picture on Santa's lap or with Santa wearing a KKK outfit. Professor Franke, if anti-discrimination law wins here, would it have to guide situations like those, and a Black Santa in a store, a public accommodation would have to accommodate the white kid in the Klan outfit?

Professor Katherine Franke: Well, these kind of inflammatory hypotheticals, I think, trivialize what's at stake here. Justice Alito even went on to say that you do see a lot of Black children in KKK outfits all the time. In a follow-up too, a colloquy with Justice Kagan about this, and he was laughing about Black children dressed up in Klan outfits and a Black Santa. It became so absurd and offensive at some point that Twitter blew up, at least my version of Twitter did, with all of us wringing our hands with what are we listening to because discrimination against LGBT people is real, and discrimination against Black people is toxic and deadly. The fact that they're joking about it and making these really--

Brian Lehrer: Because indiscrimination against children wearing Klan outfits who want to sit on the lap of a Black Santa in a department store, it doesn't exist.

Professor Katherine Franke: No, it doesn't exist. Just to go back to underscore what I said earlier, they're doing this because there are no facts in this case. Normally, what the justices are thinking about is how does the law apply to this particular case, but there is no case. They had the freedom, they thought, to just make stuff up, but what's really, I think, at stake in these wacky hypotheticals is that Kristen Waggoner, who is the lawyer that was representing Lorie Smith, could not answer their questions about what would be the limiting principle here.

Should we only allow someone, like this business owner, to get a carve-out or an exemption from having to comply with the Human Rights statute for same-sex couples or for people who have a faith-based or moral objection to same-sex marriage? Well, what about interracial marriage? Justice Sotomayor really pressed on disability rights. It is true that there are many people who feel that disabled people should not get married and have children.

It's an ugly belief, but people do hold that belief. Would Lorie Smith also be allowed to say, "I don't really want to do a wedding announcement of two disabled people"? Where does it stop? Kristen Waggoner had no answer. She was effective in just changing the subject. That's what worries me about what the court might do because they don't have any facts is that they're going to have to rule in a kind of abstract way that may not contain any limiting principle. What we have then is the free speech rights of the First Amendment completely swallowing other values that we hold, I think, quite dearly like equality, whether it's for disabled people or others.

Brian Lehrer: Here's one more example from the bench of another hypothetical that, again gets to this question of what are the limits of the precedent that they might set. This one has to do with a religious website services provider and something that may run afoul of that provider's belief. This is again, Justice Alito, but also with Justice Kagan making an appearance within.

Justice Alito: An unmarried Jewish person asks a Jewish photographer to take a photograph for his Jdate dating profile, is a dating service I gather for Jewish people.

Justice Kagan: It is.

[laughter]

Justice Alito: All right, maybe Justice Kagan will also be familiar with the next website I'm going to mention. Next, a Jewish person asks a Jewish photographer to take a photograph for his ashleymadison.com dating profile. I'm not suggesting. I mean, she knows a lot of things. I'm not suggesting. Okay. Does he have to do it?

Brian Lehrer: Ashley Madison, for context, I know why that one got a laugh because that's for married couples looking to have affairs. I don't know why Jdate in and of itself was funny there. Wow, Jewish people looking for other Jewish people to date, that's hilarious, but does that hypothetical change anything, Professor Franke?

Professor Katherine Franke: Well, I would go back to something I said earlier is that if you think about single-sex schools, like Smith College or Wellesley, we do have a history of allowing single-sex or single-race. Morehouse or Spelman, it would be another example, institutions for communities that have been historically discriminated against as a safe haven for those people. I think Jdate is part of that history of Jews obviously having experienced, not just historically, but today pretty strong and horrible antisemitism.

It makes sense that we might make an exception there just like there are plenty of dating sites that are only for gay people looking for same-sex dates. I think that example, and you could hear by how light and funny they thought it was, again, is trivializing what the underlying question here is, which is to unravel a consensus we've had in this country since the 1960s that religion or moral opposition expressed under the First Amendment's free speech clause are not legitimate reasons to not have to comply with equality or non-discrimination laws.

There were plenty of cases like this in the '60s and '70s where somebody said, "I just really find interracial marriage or even racial integration to be offensive, or it violates my religion, therefore, I'm not going to serve Black people in my restaurant. They'll have to just go to the takeout window." The Supreme Court said, at that point, "Yes, religious beliefs are important, religious liberty is important, but we have a higher and more compelling public value that we're going to elevate over your individual religious beliefs, and that is a value of equality."

It's that conversation that we did not have in the court yesterday that really concerns me because the only thing that really got any air time were the free speech rights of Lorie Smith, not the equality rights of some same-sex or interracial or disabled couple because there aren't any.

Brian Lehrer: Why not? Why don't you think the Colorado solicitor general who argued on behalf of the state or-- Somebody argued on behalf of the Biden administration too, I think.

Professor Katherine Franke: Yes. DOJ.

Brian Lehrer: Why didn't they bring it up that way?

Professor Katherine Franke: Well, they did, but their client is the state. You didn't have somebody from the ACLU or Lambda or one of the gay rights organizations saying, here are my two clients sitting here, Mr. X and Mr. Y, or Ms. X and Ms. Y, who want to get married under the same conditions and terms as a heterosexual couple, and are humiliated when they are denied access to a business. Again, to go back to the problem that there has not been any denial of services yet to a same-sex couple so you don't have their interests in the mix because it's all speculative at this point.

Brian Lehrer: Cheryl in the West Village, you're on WNYC as we talk about the Supreme Court case on the web designer who wants to deny services to same-sex couples getting married. Cheryl, you're on WNYC. Hi.

Cheryl: Howdy. I guess I have to be the devil's advocate here. Excuse me. I had a portrait studio for a bunch of years and I wound up with a client who I couldn't stand. I took a commission not knowing that I couldn't stand her. I realized partway through that it was just an impossible situation. Of course, it became one of the worst jobs I ever did in my life. The problem is, I guess, I went ahead and tried to finish the commission instead of giving her money back, which actually is what I did at the end.

I'm stuck with this horrible painting, and she got her money back, so I hope she was happy. Although we both lost lots of time. The problem is this woman, if she ever goes forward, is in fact not performing an art form, she is a craft, she's doing a technical job using aesthetics, so she's a hybrid.

Brian Lehrer: This web designer, you're saying different than you as a portrait painter?

Cheryl: Well, I was using technical facility. It's a different level. Absolutely. It's a fine art. She's not doing fine art. She's technical. She performing a craft.

Brian Lehrer: Cheryl, thank you. Professor.

Professor Katherine Franke: Yes. There are a bunch of things I think was worth thinking about your example is every person who runs a business is free to kick out obnoxious customers. No shirt, no shoes, no service, that's fine. If the reason that you didn't want to provide the service to this woman is because of her membership in a protected class, that she was Jewish, that she was disabled, that she was gay, that she was Black, whatever, then we're talking about something different.

Business owners have lots of leeway to say, "I'm not going to do business with you because I find you irritating." That's not a protected class that the human rights laws regulate. The other question though, the issue that you raised, which I think is really important, is doesn't go to whether these website companies or public accommodations, but the question of whether what they're doing has artistic or expressive qualities to it.

That is a very difficult question. Is baking a cake a kind of artistic enterprise such that when you engage in it, you should get all of the same protections around freedom of expression that we would give say to Robert Mapplethorpe who also produced very controversial art and was protected by the First Amendment because we think that we ought to protect artistic expression.

I don't know enough about website designs or particularly Lorie Smith's someday website to know whether what she's doing is artistic in nature or if she's just doing plug-and-play filling in the blanks. That did come up in the argument yesterday is, actually, does this have any kind of First Amendment significance to publish a wedding invitation? Again, because there was no wedding invitation designed or refused to be published, we don't have facts in order to answer that question.

Brian Lehrer: We're just about out of time. There are so many other roads we could continue to go down because so many implications of this case: First Amendment religious liberty, First Amendment free speech, equal protection under the law for groups that have been discriminated against in the past. Let me ask you one last thing. I mentioned in the intro that Colorado is one of 30 states with similar anti-discrimination laws that would seem to pertain in this case. Does that mean that in 20 states it is explicitly okay in 2022 for a business to deny services to women-

Professor Katherine Franke: Absolutely.

Brian Lehrer: -or LGBTQ people or on racial or religious grounds?

Professor Katherine Franke: Well, some states have laws prohibiting race or sex discrimination and public accommodation, some states don't. Many states don't prohibit employment discrimination on the basis of sexual orientation. We joke in the community married on Sunday, fired on Monday. That's why there's a bill in Congress that we're hoping the Senate will vote on called the Equality Act that would add sexual orientation and gender identity protections to a whole host of federal laws because the states haven't acted.

Brian, it's tragically true that a lot of states do not prohibit sexual orientation-based discrimination in public accommodations or housing or employment or any context. If I could just jump in with one last point that is where we started, and I think it's a good place to end, which is that there's a false dichotomy or a false clash being set up in this case that it's religion on one side and gay rights on the other, but, in fact, there's religion all over this.

A lot of gay people or same-sex couples get married because it's their faith to do so. We're also seeing a number of these evangelical right-wing Christians discriminating against Jews or Muslims for that matter. I think it's not fair to say that this clash is just between religion and gay rights. It's actually that there's a particular kind of religion that is clashing with a whole range of rights, including the religious liberty rights of others.

Brian Lehrer: Oh, well then, since you said that, then I'm going to extend this by one more question into overtime and ask you my pet question about abortion rights that the listeners are probably sick of me asking, which is wouldn't abortion rights be protected under the First Amendment's religious liberty clause because it's only certain religions, certain branches of religion that hold abortion to be morally or ethically wrong? I grew up in reform Judaism, which is the largest branch of Judaism in the United States.

There are pro-abortion rights, and you can take many Christian denomination examples as well. Why doesn't religious liberty, which keeps being used against things like abortion rights and LGBTQ rights, actually protect abortion rights?

Professor Katherine Franke: Well, Brian, this may be your pet question, but I can't believe it's taking you this long to ask me that question because this is exactly what we work on at Columbia Law School at the Law, Rights, and Religion Project. We have a whole briefing paper on this question on our website and I would direct folks there. The thing about religious liberty rights is that they have to be neutral. They have to protect all religious beliefs, not just some.

Every religious tradition has some idea of personal autonomy, an idea of family, that people in the family should be making decisions about whether they should have kids or more kids, about what the course of their life should look like. We at Columbia are consulting with lawyers across the country to put together religious liberty challenges to these horrible abortion restrictions. In a state like Missouri, they're making it easy because the Missouri statute begins with Almighty God, defines life as beginning at conception.

Not only does that statute have the effect of drowning out people with other religious beliefs, but it also has an establishment clause problem in the sense that the state is picking a particular religious view of when life begins or what the meaning of life is, and then making that part of the state's laws. This is an area of, I think, very important legal work right now. You're absolutely right that there are plenty of faith traditions that support access to the full range of reproductive healthcare.

I think these conservative judges that have been put in the federal courts are going to be pressed to come up with some way not to recognize progressive religious views that support access to abortion rights when they're more than happy to step in and help out the religious conservatives with their religious liberty rights. Stay tuned. Those cases are being litigated right now, and in fact, we won a big one in Indiana yesterday. If folks want to google that case--

Brian Lehrer: On those grounds?

Professor Katherine Franke: Yes.

Brian Lehrer: Having to do with abortion?

Professor Katherine Franke: Yes. Kentucky, we won another case. There are a bunch of them now that are bubbling up in the lower courts that folks should keep an eye out for because I think that it's not lost on these judges that you can't protect one religion and not others.

Brian Lehrer: To be continued with Columbia University Law School Professor Katherine Franke, Director of Columbia's Center for Gender and Sexuality Law, and Founder of the Law, Rights, and Religion Project from the Columbia Law School. Thank you so much. Really, really appreciate it.

Professor Katherine Franke: Great to be with you, Brian. Take care.

 

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