The Dangerous 303 Creative Case
Image: “Obergefell v. Hodges Decision Announced — June 26, 2015” by Matt Popovich.
The conflict between gay rights and religious liberty is back (if it can be said to have left), this time in 303 Creative v. Elenis, a Supreme Court case which arrives under the guise of free speech. The religious claimant will almost certainly win. The question is whether she prevails on appropriately narrow grounds, or whether the Court will balloon the law of free speech into anarchical proportions.
Lorie Smith owns a graphic design firm. She wants to expand her business to include custom-designed wedding websites but opposes same-sex marriage on religious grounds. So she won’t design sites for same-sex weddings, and she wants to say as much on her own promotional website. Colorado law, however, bans businesses that are open to the public from discriminating against gay people or announcing their intent to do so. Smith sued the state, seeking a ruling that this law couldn’t be applied against her. Her religious convictions, she declared, “prevent me from creating websites promoting and celebrating ideas or messages that violate my beliefs.”
She has a plausible case. It is settled First Amendment law that one cannot be compelled to say what one does not believe. The Supreme Court so held in 1943, when it decided that children could not be required to say the Pledge of Allegiance: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” The Court has since explained that a person cannot be compelled to be “an instrument for fostering public adherence to an ideological point of view he finds unacceptable.” When the state does that, it “invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.”
The case could be decided on the ground that Smith is being personally required to craft a message with which she disagrees. It resembles an earlier case in another circuit in which a company that made custom videos was told by the state that if they “enter the wedding-video business, their videos must depict same- and opposite-sex weddings in an equally ‘positive’ light.” The state is compelling someone to mouth a viewpoint, which is a compulsion even more intrusive and demoralizing than the flag salute case: Smith will not merely have to recite prescribed words, but exercise her own judgment while crafting a message, on pain of being deemed discriminatory if the product of her work is deemed insufficiently enthusiastic.
The above argument is not conclusive, however, because equally intrusive judicial judgments are sometimes made in breach of contract cases. If someone contracts to provide a service – if, say, A agrees to paint a portrait of B to B’s satisfaction, which B then withholds – courts will consider whether the buyer’s refusal was reasonable or merely a pretextual attempt to force a lower price. That requires courts to make aesthetic judgments, which might be bad for artists who favor unusually abstract or primitive pictures. If you don’t want courts to scrutinize your work, then you don’t have to go into that line of business.
Smith was not barred from engaging in her own expression, nor compelled to convey a message favored by the state. In an earlier case involving a wedding photographer, the New Mexico Supreme Court declared that “businesses retain their First Amendment right,” and “may, for example, post a disclaimer on their website or in their studio advertising that they oppose same-sex marriage but that they comply with applicable antidiscrimination laws.” That’s probably enough to persuade gay customers – at least, those who are not spoiling for a fight – to look elsewhere, with no formal change in the antidiscrimination law. A business that posts such a disclaimer might never need to violate its conscience by facilitating same-sex marriages.
The U.S. Court of Appeals for the Tenth Circuit, however, agreed that Smith’s “creation of wedding websites is pure speech.” It nonetheless rejected her free speech claim, saying that the state has a compelling interest in applying its law to her. Even though there are plenty of other web designers available, the court declared that she holds a kind of personal monopoly, because gay couples who must patronize another vendor “will never be able to obtain wedding-related services of the same quality and nature as those that” she offers.
The Supreme Court has now agreed to hear her case, limited to the free speech issue. (She also made a freedom of religion claim, which the Tenth Circuit likewise rejected.)
The Tenth Circuit’s monopoly argument is strange: “For the same reason that [Smith’s] custom and unique services are speech, those services are also inherently not fungible.” Allowing her to refuse “would necessarily relegate LGBT consumers to an inferior market because Appellants’ unique services are, by definition, unavailable elsewhere.” By this logic, one could justify compelling anyone to do anything. It is as if to say, We realize that someone else could do what we’re asking, but that just wouldn’t be you alone, irreplaceable you.
Given the Court’s recent remarkable enthusiasm for religious claimants, it is likely to rule in Smith’s favor. This would be a significant innovation in the law. The New Mexico Supreme Court declared: “We decline to draw the line between ‘creative’ or ‘expressive’ professions and all others. . . . Courts cannot be in the business of deciding which businesses are sufficiently artistic to warrant exemptions from antidiscrimination laws.” The court observed that the wedding industry presents many such cases: “a flower shop is not intuitively ‘expressive,’ but florists use artistic skills and training to design and construct floral displays.”
Victory for Smith would mean that the courts will henceforth be in that business. If, however, courts are going to devise an expressive exception to antidiscrimination law, they must draw a line between expression and nonexpression. If there must be such a line, Eugene Volokh and Dale Carpenter have proposed the most sensible one. Expression, they argue, should be protected if it “falls within a generally expressive medium,” a medium that “has historically and traditionally been recognized in the law as expressive.” Writing and website design (and, they argue, photography) are expressive media.
But, importantly, not cakemaking. Here’s the danger. The right wing of the Court is really more concerned about protecting conservative Christians than it is about protecting speech. Many religious vendors object to facilitating same-sex weddings. They include many who don’t work in expressive media, such as florists and bakers. Under Volokh and Carpenter’s test, they would lose, and the Court might not like that. The moral reality is that all of them, expressive or not, conscientiously object to participating in a ceremony that they do not regard as a real wedding. Yet free speech law treats them differently – unless one radically distorts the law. Two members of the Court have already tried to do that, and they now have new allies.
In the 2018 case Masterpiece Cakeshop v. Colorado, a bewildering proliferation of free speech claims were made on behalf of a baker who would not sell a wedding cake – any wedding cake – to a same-sex couple. He wasn’t asked to write the words “God Bless This Wedding” on their cake, or design it to depict two grooms. He refused to serve them before he knew anything about what they wanted. Website design is obviously speech. But food preparation?
However, Justice Clarence Thomas, joined by Justice Neil Gorsuch, argued that the baking of wedding cakes is inherently expressive: “a wedding cake needs no particular design or written words to communicate the basic message that a wedding is occurring, a marriage has begun, and the couple should be celebrated.” By Thomas’s logic, the baker had a right to refuse to sell a premade wedding cake that he already had on his shelf.
It is true that the baker’s actions had some communicative significance. So does almost everything that people do. But the Court has rejected “the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.” If baking is speech because the baker considers himself an artist (as this one did), then nearly everything is speech, and the First Amendment creates a presumption of anarchy. This has never been the law. It has been settled for more than half a century that the government can regulate communicative conduct if its interest is unrelated to the suppression of the message, and if the impact on the communication is no more than is necessary to the government’s purpose. Discrimination laws easily satisfy these requirements.
Thomas has two responses to this difficulty. One is to claim that in this case, compliance with the law amounts to a kind of compelled speech: “Forcing Phillips to make custom wedding cakes for same-sex marriages requires him to, at the very least, acknowledge that same-sex weddings are ‘weddings’ and suggest that they should be celebrated — the precise message he believes his faith forbids.” But this claim is limitless. It can’t possibly be true that one has a right to disobey laws whenever compliance might be taken to convey a message of agreement with them. There is no free speech right to ignore the traffic laws, even if you think that those laws are stupid and that everyone should get to drive where and how they want.
Every time a vendor provides someone with goods and services without discriminating, that has communicative significance. Take the familiar case of the restaurant that would not serve black customers. This case represents the paradigm of wrongful discrimination, the core case of what the law prohibits. The presence of black people eating lunch at Ollie’s Barbecue in Birmingham in 1965, sitting at a table next to white people, sent a message that Ollie didn’t like. But free speech didn’t mean he had a right to discriminate. Neither do other discriminators whose actions have communicative significance.
Thomas’s second strategy is to emphasize that the normal rule of deference to regulations of expressive conduct “does not apply unless the government would have punished the conduct regardless of its expressive component.” The injury the state aimed to prevent was not absolute unavailability of wedding cakes to gay couples – other bakers were available – but the “humiliation, frustration, and embarrassment” of being turned away on the basis of a protected characteristic. That has been a settled purpose of antidiscrimination law for half a century, but Thomas thinks it is impermissible: “States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified.” The same claim could be made against all discrimination laws.
We know that Thomas has two votes for this extreme theory. Since Masterpiece, Justice Kennedy, who wrote the very narrow majority opinion in that case, has left the Court. Justice Ginsburg is gone as well. The new ultra-conservative majority has been remarkably cavalier about legal niceties when these impinge on right wing Christians like Smith.
The Supreme Court does not merely decide individual cases. It lays down rules for the future. It isn’t hard to see what will happen in 303 Creative, but the Court can do a lot of damage as it gets there. ♦
Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, forthcoming). Follow him on Twitter @AndrewKoppelman.
Koppelman, Andrew. “The Dangerous 303 Creative Case.” Canopy Forum, June 13, 2022. https://canopyforum.org/2022/06/13/the-dangerous-303-creative-case/.