303 Creative LLC vs. Elenis: the Real Blockbuster Case for Liberty of Conscience

Early next month, the Supreme Court will confront what is perhaps the most substantive case yet in the conflict between the sexual revolution and religious liberty: 303 Creative LLC vs. Elenis. Before reviewing the case, it may be helpful to review where the legal conflict stands now.

The Sexual Revolution vs. Religious Freedom

Five years ago the Masterpiece Cakeshop case was considered in two articles, one of which considered it as the “blockbuster case” for religious freedom, and the other of which considered the horrible possibility that Jack Philips might lose.  He of course won the following year without any definite principle to provide guidance for future clashes between homosexual liberation and religious liberty. The court did not say he had a right to decline complicity in homosexual or other sinful behavior as a matter of the free exercise of religion (which would be a very reasonable reading of the First Amendment). Rather, the bias of the Colorado Civil Rights Commission, in which one commissioner compared religious freedom to Nazis and the Holocaust, allowed the court to find “animus” against Philip’s free exercise. Yet this gave no guidance in how to decide cases where no such blatant hostility was expressed.

As an advance in religious freedom, Masterpiece Cakeshop perhaps most closely resembles a case that went the opposite direction, the Romer vs. Evans decision (1996), which voided an amendment to the Colorado constitution prohibiting local homosexual rights ordinances. There, in a 5-4 majority decision, authored by Associate Justice Anthony Kennedy, the court declared that the voters’ hostility to homosexuality made the amendment unconstitutional, and used a ludicrous, never-before-heard claim that state law precluding a benefit to a particular group by local law makes the political effort needed to overcome such a barrier too difficult. This made extremely suspect any laws directed against homosexuality, although sodomy laws were still on the books in some states, and the court declined at that time to overturn them. The point was not so much to lay down a legal principle, but to signal the court’s attitude. What did the court think of legal opposition to homosexuality? Answer: we don’t like it.

The Supreme Court then did proceed to the logical conclusions to be drawn from this attitude. It voided the sodomy laws in 2003, eviscerated the Defense of Marriage Act in 2013, which had protected traditional, opposite-sex marriage in federal law, and mandated same-sex marriage in 2015. Masterpiece Cakeshop can be understood as doing the same thing as the Romer decision on the side of religious freedom. Its real significance was in signaling the court’s attitude. What did the court think of using homosexuality to attack religious freedom? Answer: we don’t like it.

Fulton vs. City of Philadelphia (2021), in which the court unanimously upheld the right of Catholic Social Services of Philadelphia to provide foster children only to opposite-sex married couples, holding that if there are any exemptions provided in a law there must be a religious exemption, was a decision implementing the pro-religious freedom adjudication of Masterpiece Cakeshop. But the true blockbuster follow-up to Masterpiece Cakeshop is 303 Creative vs. Elenis, which will be heard at the Supreme Court on December 5. It gives the court an opportunity to lay down a rule in cases involving conscience objection to complicity in homosexuality, at least among expressive professionals, on free speech grounds. Given the current highly polarized environment, this may be more acceptable to a wider public than using religious liberty grounds.

Web Design as Pure Speech

The case involves a Christian web designer, Lori Smith, who wants to expand her business to include web design for weddings but does not want to design same-sex weddings. No actual legal action has been taken against her. Instead, her business, 303 Creative and the Alliance Defending Freedom, which represents it, mounted a pre-enforcement challenge to the Colorado Anti-Discrimination Act, which mandates that public accommodations be open without regard to sexual orientation or gender identity. Like other SOGI laws, it is interpreted to mean that there can be no discrimination against same-sex conduct as well as identity. 

A three judge panel of the 10^th federal circuit found 2-1 against 303 Creative, holding that the dignity of a marginalized and protected category mandated that Smith provide web design for same-sex weddings, if she also provides it for opposite-sex weddings. The court conceded that Smith’s artistic creation was “pure speech,” and thus in this case forced speech, but the compelling state interest in antidiscrimination overrode Smith’s First Amendment claims. It also incredibly maintained that Smith had a monopoly on her own creations (which, of course everyone does) even though a same-sex couple could easily obtain wedding design elsewhere. Equally remarkable, and contrary to the Fulton decision, it held that conscience based refusals of mandated speech are acceptable for secular, but not religious reasons. This is certainly not equal protection, nor freedom of religion or speech.

Chief Judge Timothy M. Tymkovich dissented, holding that the majority decision was “novel,” going so far as to require a person to speak a government approved message against his or her religious beliefs.

An analysis of the case by LifeSiteNews said that the “fundamental error” in the 10^th circuit ruling is equating the declining of wedding design for a same-sex ceremony with discrimination against LGBT persons. Smith is unwilling to supply web design for same-sex weddings whether the request is made by LGBT identifying persons or not, and wants “to post on her website a statement” that she “firmly believe[s] that she is being called by God to website work that celebrate[s] His design for marriage as a life-long union between one man and one woman.”  All of this, both the statement and the conscience refusal, are forbidden by CADA, due to the way SOGI laws are interpreted, as applying to sexual behavior as well as people.

Also highlighted by LifeSiteNews is that the author of the Tenth Circuit decision, Judge Mary Beck Briscoe, held that the CADA law indeed involved a “gerrymander” privileging LGBT identifying clients. Speech affirming same-sex marriage (in the form of web design for a same-sex wedding) is required, because refusal to design a website for a same-sex wedding is held to discriminate against LGBT customers, whereas other speech (such as speech affirming Biblical opposite-sex marriage) is not. This is because customers are confused with same-sex marriage. Thus, LifeSiteNews concludes that CADA is guilty of violating “equal protection under the law.” As this writer has argued, the basic problem with “LGBT rights” is that it bases human rights and dignity on personal behavior, whereas in fact they must be based on our status as human beings.

Converting Expressive Professionals into Public Accommodations

Noteworthy for its keen observation of the threat to free speech was an amicus brief submitted by the libertarian advocacy group Americans for Prosperity. Its summary of its arguments maintained that the State of Colorado is using CADA to turn expressive professionals into public accommodations or common carriers by applying public accommodation laws to them. Their expression is rendered merchandise for sale, or the same type of goods as material to be transported by rail, air, or highway. This use of public accommodation law is increasingly common, AFP said, and gravely threatens First Amendment speech rights. The government is claiming a right to demand that “certain messages must be delivered, placing all expressive professionals at risk.” This affects not only artists, but also “attorneys, educators, mental health professionals, and any other professional who relies on speech to do her job.”

In a key passage, AFP maintained that:

“public accommodations laws cannot be interpreted to conflict with the First Amendment to convert a speaker into a public accommodation or to compel the creation of expressive products or services.”

And similarly,

“Private artists . . . have none of the characteristics that delineate a common carrier under the common law and cannot be rendered common carriers by fiat. Nor do they resemble modern examples of common carriers, which, in narrow circumstances may be required to carry the speech of others in a similar way to how carters, railways, or ferry operators could be required under the common law to carry freight for any customer that met its terms.”

Heritage Foundation, in a panel discussion on October 25, focused on the distinction between expression and conduct. Is wedding design for a same-sex wedding expression or conduct? While social conservatives may rightly believe that conduct should be protected by the guarantee of the free exercise of religion, the 303 Creative case focuses on free speech. It is agreed by all parties that Lori Smith’s creations are “pure speech,” and the Supreme Court has indicated that it will consider only free speech in this case. Free speech was not part of the Masterpiece Cakeshop decision (beyond Justice Thomas’ concurrence).

The Problem of Expressive Identities

The problem of distinguishing expression from conduct arises, at least in part, this writer believes, because sexual orientation and gender identity are categories that are based on personal expression – personal sexual expression. Expression has been turned into identity. Therefore, discrimination against same-sex expression is discrimination against an identity. But there must be discrimination against same-sex expression if there is not to be forced expression. Sexual orientation and gender identity laws refer only to sexual orientation (sexual desire for members of one’s own sex) or gender identity (identification with the opposite sex). They do not, as far as this writer is aware, prohibit discrimination against sexual behavior (although courts interpret SOGI laws to prohibit discrimination against sexual behavior, holding that behavior is part of identity).

But when antidiscrimination doctrine goes to the extent of requiring personal expression supporting homosexuality, or anything else one disagrees with, this clearly violates the First Amendment. The only possible way to reconcile SOGI laws with free speech is to hold only non-expressive goods and services must be provided without discrimination against SOGI categories – cakes, but not same-sex wedding or other LGBT themed cakes, photography, but not photography that carries a pro-LGBT message, wedding design, but not design for same-sex (or opposite-sex, as the case may be) weddings.

Inevitably, in such a case as 303 Creative, the specter of racial discrimination will be raised. Could an interracial couple be denied wedding design on free speech grounds? Probably the most legally effective answer is that the Supreme Court has specifically said in the same-sex marriage decision that religious or philosophical premises to believe in opposite-sex only marriage are “decent and honorable,” It has never said that about racial inequality. Beyond that, racial discrimination is against an immutable characteristic, and clearly contrary to the objective of the Civil War amendments (Thirteen, Fourteen, and Fifteen), whereas expression (including religious expression) by its very nature is not immutable.

Additionally, although the court is confining itself to free speech considerations, the real underlying issue is religious objection to same-sex marriage. And there simply are no good religious grounds for opposing interracial marriage based on any religious authority likely to be used in this country. Certainly not from the groups about which the American Left obsesses – Southern whites and conservative Christians, who would use the Bible. Religious texts can of course, be interpreted to mean anything, but neither the Bible nor the Koran can be reasonably interpreted to support racial inequality. Nor can cases of conscience-based refusal to service interracial weddings be expected.

Unhappily, the American establishment is clearly arrayed on the side of the sexual revolution. The American Bar Association acknowledges the Supreme Court’s stated respect for belief in opposite-sex only marriage, but dismisses it as conflicting with the compelling state interest in preventing discrimination. ABA also claims free speech could be used as a basis for denying any service to LGBT identifying persons at all. But this has not been the issue in the conflict over liberty of conscience, nor is there any indication it would become an issue. ABA seems particularly eager to attack the right of conscience, when duty to God is the heart of religious freedom and liberty of conscience, as asserted in James Madison’s Memorial and Remonstrance.

At bottom, 303 Creative vs. Elenis, like all SOGI/religious liberty/free speech cases, is about the conflict between freedom from offense and the right of conscience. The ABA is quite right about that, but reached the wrong conclusion about which has greater weight. No one likes to be offended, but a right not to be offended is really a right to tyranny. Even a claim of intense emotional pain comes to the same thing, particularly in our day when part of society believes people ought to be able to define their own realities. When LGBT advocates talk constantly about “other people’s rights” against religious liberty, it is really freedom from offense which is being claimed. This simply cannot, even if the offense is strongly felt, have the same weight as the objection of conscience, which proceeds from our sense of right and wrong. Respecting the conscience – and especially the religious conscience, which is based on duty to God – should be in the bedrock of our legal order if we are to have a just and free society.