by Jorge Gomez • 5 min read
This week, the U.S. Supreme Court heard oral arguments in 303 Creative v. Elenis. The case involves Lorie Smith, a Christian web designer from the Denver area who declines to create websites for same-sex weddings because of her religious beliefs. Our friends at Alliance Defending Freedom are representing the web designer. It’s a free speech case that could have implications for religious freedom.
First Liberty filed a friend-of-the-court brief supporting the web designer. We filed it on behalf of our clients, Aaron and Melissa Klein, two Christian bakers who declined to create a custom cake for a same-sex wedding. An Oregon state agency ruled that the Kleins violated the state’s public accommodations law and imposed a financially devastating penalty of $135,000 against them. That punishment forced them to shut down their bakery, Sweet Cakes by Melissa.
Our brief asks the nation’s highest court to reverse a ruling from the Tenth Circuit Court of Appeals. That court ruled that under the Colorado’s anti-discrimination laws, government has license to force artists to create art that violates their deepest convictions. Our attorneys explain that this is unconstitutional.
Far from benefiting our country, more harm is done when creative professionals and artists are forced to speak messages that violate their beliefs. We explained in our brief:
“A world where the state can require artists, entertainers, writers, and producers to use their expressive gifts to communicate messages that violate their convictions is a world where the First Amendment has been rendered meaningless…If a state truly wants to ensure access to robust markets, the last thing it should do is compel or silence speech from artistic business owners. Such coercion will not increase access to goods and services but will instead devastate the commercial marketplace, driving small, family-run art shops out of business and leading to inferior markets for all.”
A favorable decision in 303 Creative could be positive for Aaron and Melissa, who’ve been searching for sweet justice and fighting in court for nearly 10 years. The outcome could also impact religious Americans who are being forced to choose between violating their beliefs or losing their business.
During oral argument, the Supreme Court’s conservative majority appeared to be sympathetic to the arguments being made by the Christian web designer. Justice Samuel Alito noted that if the state of Colorado were to prevail, it would mean some businesses that provide custom products and services to customers could be forced to “espouse things they loathe.” He also pointed to the broader impact this could have not just for Christians, but for people of all faiths. Justice Alito presented the hypothetical scenario of a Jewish artisan who, under the state’s current law, “would be compelled to voice support for an existential threat to the future of his faith” and “to betray his conscience.”
Justice Neil Gorsuch described Smith as “an individual who says she will sell and does sell to everyone, all manner of websites.” However, “she won’t sell a website that requires her to express a view about marriage that she finds offensive,” he added.
The Court’s liberal justices, on the other hand, pressed and asked questions on where to draw the line for what a business might do without violating state anti-discrimination laws. They presented various hypotheticals that focused on race and other civil categories. Justice Ketanji Brown Jackson, for example, asked whether a photography store in a shopping mall could refuse to take pictures of Black Americans on Santa’s lap. “Their policy is that only white children can be photographed with Santa in this way, because that’s how they view the scenes with Santa that they’re trying to depict,” Jackson said.
Justice Sonia Sotomayor said this would be “the first time in the Supreme Court’s history” that it would allow a business open to the public to “refuse to serve a customer based on race, sex, religion or sexual orientation.” She pressed Smith’s attorney, asking: “How about people who don’t believe in interracial marriage? Or about people who don’t believe that disabled people should get married? Where’s the line?” Sotomayor asked.
If 303 Creative LLC sounds familiar, it’s because it resembles a prior case recently decided by the Supreme Court: Masterpiece Cakeshop v. Colorado (2018).
In that case, the Court ruled that state officials had been openly hostile to Christian baker Jack Phillips, who declined to create custom cakes for same-sex weddings. Both Phillips and Smith were subject to the same coercive, “anti-discrimination” law in Colorado that seeks to silence people of faith and force them to conform to the cultural orthodoxy.
Masterpiece Cakeshop was a step in the right direction and handed a win to Jack Phillips. But the ruling was narrow. The Court punted the main free speech and religious liberty questions, namely, whether a baker (and similar creative professionals or artists) had a First Amendment right to decline engaging in expression that offended his or her beliefs.
Although 303 Creative is indeed an important First Amendment case, its final outcome could still be limited. When it announced it would hear oral argument, the Supreme Court declined to hear the claim that Colorado’s law violates Smith’s religious freedom. Instead, the justices issued a statement saying they would address the specific question: “Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.”
Will the Supreme Court use 303 Creative to fill in the missing pieces from the Masterpiece ruling? That remains to be seen. The Supreme Court is expected to announce its decision on Smith’s case sometime in the spring. We’re hopeful the Supreme Court will issue a broader, more expansive decision protecting free speech and religious freedom.
While the Court is considering the 303 Creative case, the Supreme Court has also before it our Sweet Cakes by Melissa case representing Christian bakers Melissa and Aaron Klein. As discussed more fully above, we are asking the Supreme Court to once again review Oregon’s decision that fails to recognize the Kleins’ religious liberty rights. Stay tuned for the Supreme Court decisions on both the 303 Creative and Sweet Cakes by Melissa cases.