303 Creative, a “creative” decision by the Supreme Court
A new way to interpret free speech
By Chang Liu
Six months after the Supreme Court ruled that a web site designer could refuse business from same-sex couples, controversy over the ruling — and the unusual reasoning behind it — continues.
The simple argument, in the words of General Counsel Kristen Waggoner who argued the case“The government can’t force anyone to say something they don't believe,” seems like a fitting expression of the American spirit. But does this ruling imply that hotels, restaurants, hair salons and other merchants can also discriminate?
To many, the ruling feels like a major shift in their understanding of the First Amendment. How did we get to this point?
The creative 303 Creative: a new Masterpiece
Founder and sole owner of the website design company 303 Creative LLC in Aurora, Colorado, Lorie Smith wanted to expand her business into building custom wedding websites. But not for every couple. Due to her understanding of her Christian faith, Smith sought to serve only opposite-sex couples, a plan that would potentially violate Colorado Anti–Discrimination Act. She wanted to state on her company’s website that creating websites for same-sex marriages “would compromise my Christian witness and tell a story about marriage that contradicts God’s true story of marriage.”
On the website, Lorie Smith states that she doesn't want to create content that is different from her religious beliefs.
It took six years from when the lawsuit was initiated in 2016 for the 303 Creative, LLC v. Elenis to reach the Supreme Court. In June, the Supreme Court finally issued a ruling in Smith’s case. Justice Neil M. Gorsuch, representing the 6-3 majority, asserted that the free speech clause within the First Amendment protected Smith from being compelled to express views against her beliefs. Justice Sonia Sotomayor strongly dissented, stating, “Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class.”
In many ways, the Masterpiece Cakeshop case seems very similar to 303 Creative. Jack C. Phillips, a Colorado bakery owner owner, refused to design and create a wedding cake for a same-sex couple, citing his religious beliefs. Smith even works just a few miles from Smith.
Jack Phillips celebrating his 2018 Supreme Court win, and the woman to his right in the photo is Kristen Waggoner.
Lorie Smith, sitting outside the Supreme Court with counsel Kristen Waggoner of the Alliance Defending Freedom, who argued the case on her behalf.
Credit: Alliance Defending Freedom
In both cases, the owners cited religious beliefs to decline services for same-sex weddings, leading to legal challenges to the Colorado Anti-Discrimination Act. Kristen Waggoner from Alliance Defending Freedom (ADF) — an American Christian legal advocacy group, who represented both Phillips and Smith, played a pivotal role in both cases.
But while both cases resulted in rulings in favor of the plaintiffs, their significance is very different.
In the Masterpiece Cakeshop case, the court’s decision centered on what it called the Colorado Civil Rights Commission’s inappropriate display of hostility toward Phillips’s religious beliefs, which, in turn, led to a violation of the Free Exercise clause. This is a relatively restrained and careful decision: a narrow ruling avoiding the tough question.
In 303 Creative, the justices settled a question left open five years earlier: whether businesses open to the public and engaged in expression may refuse to serve customers based on religious beliefs. According to the ruling in 303 Creative, the answer is “Yes”. This latest decision has a much broader application than the earlier one.
The First Amendment is divided into three sections, Religion, Free Speech, and Assembly and Petition.
Since 1925, the year when the Supreme Court extended the First Amendment’s protections to U.S. state governments, there have been 930 Supreme Court cases citing the First Amendment.
105 of 930 First Amendment cases cited only the religion clauses
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.... ”
Employment Division v. Smith(1990) and Masterpiece Cakeshop(2018) are notable cases citing the religion clauses.
In Smith(1990), which denied unemployment benefits for using drugs in a religious service, the Court ruled that laws not targeting specific religious practices do not violate the free exercise of religion clause.
483 cases cited onlythe Free Speech Clauses
“...or abridging the freedom of speech, or of the press...”
This included the 303 Creative (2023) case. Justice Gorsuch wrote that the case was without “complication” because Smith’s proposed websites were “pure speech.”
The First Amendment is divided into three sections, Religion, Free Speech, and Assembly and Petition.
Since 1925, the year when the Supreme Court extended the First Amendment’s protections to U.S. state governments, there have been 930 Supreme Court cases citing the First Amendment.
105 of 930 First Amendment cases cited only the religion clauses “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.... ” Employment Division v. Smith(1990) and Masterpiece Cakeshop(2018) are notable cases citing the religion clauses.
In Smith(1990), which denied unemployment benefits for using drugs in a religious service, the Court ruled that laws not targeting specific religious practices do not violate the free exercise of religion clause.
483 cases cited onlythe Free Speech Clauses “...or abridging the freedom of speech, or of the press...”
This included the 303 Creative (2023) case. Justice Gorsuch wrote that the case was without “complication” because Smith’s proposed websites were “pure speech.”
It may seem reasonable to use the Free Speech Clause to decide a case involving “pure speech.”
However, as Post pointed out, Gorsuch’s reasoning is unusual. When people view a wedding website, they’re more likely to think “freedom of speech” refers to the same-sex couple’s expressions than the web designer’s. How unusual is Gorsuch’s reasoning?
The use of the Free Speech clause in religious-related cases is rare, and the linking of “pure speech” to commercial activity is unique. 303 Creative is a creative decision by the Supreme Court.
A Most Conservative Supreme Court
Why is there such a huge difference in the decisions in such similar cases? One thing worth noting is the philosophies of the justices involved.
The Supreme Court has changed a lot since Justices Kennedy, Ginsburg, and Breyer were on it. Of the four justices who were all in favor of same-sex marriage rights in the landmark cases Obergefell (2015) and Pavan (2017), only two remain on the court. Justices Roberts, Alito, and Thomas, who expressed concern about what recognizing a right to same-sex marriage would mean for those who oppose it on religious grounds in Obergefell, were also involved in the 303 Creative case.
The data was last updated in 2021, Justice Jackson who was nominated in 2022 was not recorded. She is often considered a liberal justice; she joined the dissenting side in 303 Creative. Majority: a judicial view supported by over half the deciding judges. Concurrence: judges who align with the majority but offer a different rationale. Dissent: judges who disagree with the majority’s decision.
Within only a few short weeks of its launch in 1994, the Alliance Defending Freedom (ADF) was funding a case at the U.S. Supreme Court and boasting their first victory. Since then, ADF has been involved in at least 115 Supreme Court cases through amicus briefs and direct representation.
Since 2011, ADF have secured 15 victories by directly representing parties at the Supreme Court, including Masterpiece Cakeshop and 303 Creative, as well as the landmark case Dobbs v. Jackson Women’s Health Organization which overturned the Roe v. Wade protections for access to abortion.
Following their win in Masterpiece Cakeshop, ADF found a new way, focusing on free speech, to address lingering questions from the Masterpiece Cakeshop. This time, ADF’s success is more remarkable.
The Future
Does this ruling imply that hotels, restaurants, hair salons, and other merchants could also discriminate? Based on this case alone, the court is not saying that all merchants can refuse service. As it currently stands, even if a hairdresser believes that dyeing a client's hair rainbow-pride colors represents support for LGBTQ+ rights, the hairdresser can’t turn them away simply for that reason because hairstyling is not a work of “pure speech.” Nevertheless, one likely battleground will concern the scope of what constitutes “expressive” services. Designers, lawyers, speechwriters might all be drawn into the battle.
In 1940, the Supreme Court ruled in Minersville School District v. Gobitis that public schools could compel students to salute the American flag and recite the Proclamation of Allegiance, even if it violated their religious beliefs. It was a time of war, when patriotic fervor mingled with the rejection of “paganism.”
Today's Supreme Court is as divided and activist as the world outside the court. The decision made in Gobitis was overturned three years later, and Roe v. Wade was overturned after 50 years. Court rulings are never solely about the court itself. It may take a long time before the majority of the court is willing to reconsider 303 Creative.
Notes:
The data for this project came from Westlaw, including data from the United States Code Annotated section of Westlaw, as well as data obtained from the keyword search function.
In addition to those already included in the text, other important references are listed below: The Supreme Court Database, Free Speech Center, Martin-Quinn scores, American Bar Association
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