“303 Creative v. Elenis: Masterpiece Cakeshop 2.0?” by Mark Satta

Picture by Boris Stromar on Pixabay.

In fall 2017, the Supreme Court heard oral arguments in Masterpiece Cakeshop v. Colorado. The key question was whether a Christian baker’s First Amendment free speech or religious free exercise rights permitted him to refuse to make a wedding cake for a same-sex couple in violation of Colorado’s Anti-Discrimination Act. The Court’s decision in June 2018 did not answer this question. Instead, the Court vacated Colorado’s ruling against the baker on the grounds that Colorado’s adjudicative procedures had exhibited hostility rather than neutrality toward the baker’s religious beliefs, violating the First Amendment’s free exercise clause.

This fall, the Supreme Court will hear oral arguments in another First Amendment case coming from Colorado: 303 Creative LLC v. Elenis. The key questions are (1) whether a Christian website designer has a First Amendment right to refuse to make wedding websites for same-sex couples, and (2) whether the web designer has a First Amendment right to post on her business webpage a particular message communicating her religious motivations for refusing to provide such services.

In many ways, 303 Creative picks up where Masterpiece Cakeshop left off. But social, political, and legal circumstances have shifted over the last five years. Here are five important ways in which 303 Creative and the circumstances under which it is being litigated differ from Masterpiece Cakeshop. 

Cake Maker Speech versus Web Designer Speech

In both Masterpiece and 303 Creative, the business owners seeking to discriminate based on sexual orientation argue that they have a First Amendment free speech right to do so. In Masterpiece, proving the baker’s free speech claim would have required the baker to show that when he made wedding cakes he was engaged in expressive conduct — i.e., constitutionally protected acts of expression besides speech, such as burning a flag. The Court did not address the baker’s free speech claim (although Justice Thomas defended the baker’s free speech claim in his concurrence). 

The free speech questions in 303 Creative are different in several important respects. First, wedding websites, unlike wedding cakes, typically include an extensive amount of written text. However, the creation of a wedding website with the help of a web designer is a shared endeavor. It is not clear that the website constitutes, even in part, the web designer’s speech. Plausibly, the web designer merely provides a platform from which the couple can speak. Perhaps providing such a platform is itself expressive conduct, but it is not obviously so. 

The more pointed free speech issue — which has no analog in Masterpiece — is the statement that the web designer wishes to include on her business webpage explaining why she refuses to make wedding websites for same-sex couples. I consider that statement in more detail below.

The Narrowing of Employment Division v. Smith

At the time Masterpiece Cakeshop was decided, it was reasonable to think that the baker’s free speech claim was stronger than his religious free exercise claim. This understanding was largely due to the rule articulated in the Supreme Court’s 1990 decision in Employment Division v. Smith. Smith holds that the religious free exercise clause does not provide for exemptions from “neutral and generally applicable laws” — i.e., laws that don’t target religion and are applied to everyone. From the vantage point of 2017, Colorado’s Anti-Discrimination Act appeared to be a neutral and generally applicable law. This created an uphill battle for the baker to win his religious free exercise claim.

But the Smith doctrine is weaker today than it was in 2017 in at least two ways. First, there is renewed interest in overturning Smith. At least three of the justices — Justices Thomas, Alito, and Gorsuch — publicly support overturning Smith. So far the Court has declined to do so, even when given the opportunity. The Court took a different strategy in the 2021 opinion in Fulton v. Philadelphia, which represents a second way in which the Smith doctrine has been weakened: it has been narrowed.

The Court held, in a unanimous decision, that the Smith doctrine did not apply in this case because the law was not generally applicable.

In Fulton, the Court held that the City of Philadelphia violated the religious free exercise clause when it refused to renew a contract with a Catholic adoption agency to assist with foster child placement. Philadelphia had refused to renew its contract with the agency on the grounds that the agency would not work with same-sex couples as foster parents. The Court held, in a unanimous decision, that the Smith doctrine did not apply in this case because the law was not generally applicable. The reason why the law was held not to be generally applicable is that it permitted discretionary exemptions, even though in practice such exemptions had never been made. This seems like a high bar for what counts as a generally applicable law. Going forward, litigants can take advantage of Fulton to argue that a law is not generally applicable even if there are only far-removed possible exemptions under the relevant law. 

Design-Based versus Use-Based Discrimination

The concurrences in Masterpiece Cakeshop revealed that the justices in the majority disagreed among themselves about what actions count as a failure to treat a business owner’s religious beliefs neutrally. The majority opinion focused on several statements made by members of the Colorado Civil Rights Commission in arguing that Colorado had failed to treat the baker’s beliefs neutrally. But the majority also cited the fact that Colorado concluded that three other bakers hadn’t violated CADA when they refused to make cakes requested by a Christian with designs like the following: in the shape of a bible, with a red X over a picture of two grooms, and text reading “Homosexuality is a detestable sin. Leviticus 18:2.”

Contra Justice Kagan, Justice Gorsuch argued in concurrence that there was in principle no religiously neutral way for Colorado to have ruled against the Christian baker and in favor of the other bakers. But Justice Gorsuch’s reasoning failed to take account of some relevant distinctions. Philosopher John Corvino distinguishes between design-based and use-based objections to service. 

The three bakers who refused to make the cakes with specific anti-gay messages objected to making products with certain designs that they simply didn’t sell. No customer could have received an item with that particular design. In that way, the refusal to make the items was disconnected from the fact that the person requesting the cakes was a Christian.

Not so in the case of the baker refusing to make a cake for a same-sex couple. In that case, the baker objected to the use that the cake was going to be put to — namely, to celebrate a same-sex couple’s wedding. But note that in this latter case, the baker would refuse to sell to a gay couple an identically designed item that he would be willing to sell to a straight couple. The reason for this is the use that the cake would be put to. Corvino argues that in the case of wedding cakes, discriminating based on use at a same-sex wedding amounts to user-based discrimination based on sexual orientation because of the tight connection between use and user in this context.

What kind of guide do these distinctions provide in 303 Creative? On one interpretation, the design versus use distinction may seem less apt in the case of wedding websites. This is because wedding websites tend to be unique in a way that wedding cakes need not be. Wedding websites usually include pictures of the couple and text unique to them (such as the couple’s names and the date and location of their wedding). These features of the design are not replicated on other wedding websites. Thus, each time a website designer refuses to make a wedding website, they refuse to make a website with a unique design. 

But on another interpretation, the design versus use distinction remains apt. This is because website designers often sell reusable pre-designed templates, which the couples then customize themselves with details unique to them. This is what major wedding website companies like The Knot and Zola do. Were a web designer to selectively sell their templates only to male-female couples and not same-sex couples, this would seem like use-based discrimination so intimately tied to user-based discrimination that it is in practice discrimination based on sexual-orientation.

The owner of 303 Creative has emphasized her interest in creating custom wedding websites for clients, but this on its own doesn’t resolve which of the two interpretations is the most fitting in this case. Even pre-designed wedding templates are custom in the sense that they allow the purchasers to customize the templates to meet their own wishes and needs.

The Etiquette of Animus

The Court gave two reasons for its holding that Colorado acted with constitutionally impermissible hostility toward the baker’s religious beliefs. First, as discussed above, the majority cited the fact that Colorado ruled in favor of bakers in three other cases. But given the relevant distinctions between the cases, this reason is not good grounds for such a conclusion. Second, and seemingly of greater significance for the Court, the majority argued that several statements made by members of the Colorado Civil Rights Commission as part of the adjudicatory proceedings exhibited hostility toward the baker’s religious beliefs.

But as I and several others have argued at length, it is not at all clear that these ambiguous statements did in fact exhibit religious hostility. For example, the Court cited as evidence of religious hostility a claim by a commissioner that “if a businessman wants to do business in the state and he’s got an issue with the — the law’s impacting his personal belief system, he needs to look at being able to compromise.” When looked at in context, this claim appears to amount to nothing more than the widely recognized platitude that while the First Amendment right to religious belief is absolute, the First Amendment right to religious conduct is limited.

Similarly, the Court cited a statement by another commissioner reading, in part, that “religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust . . . to me it is one of the most despicable pieces of rhetoric that people can use to — to use their religion to hurt others.” In his majority opinion in Masterpiece, Justice Kennedy said of this statement that “To describe a man’s faith as ‘one of the most despicable pieces of rhetoric that people can use’ is to disparage his religion,” and that “The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.”

The problem with Kennedy’s reasoning is that when you look at the commissioner’s statement in context, it is not at all clear that the commissioner’s claims were about the baker’s (Phillips’) religious beliefs. The commissioner can reasonably be interpreted as merely making some historical claims and normative judgments about that history. If that is the correct interpretation, it is hard to see how this could amount to religious hostility against the baker’s religious beliefs.

The Court’s ruling in Masterpiece has put new pressure on state governments and adjudicatory bodies.

The Court’s ruling in Masterpiece has given rise to what Leslie Kendrick and Micah Schwartzman call “the etiquette of animus” — that is to say, in Masterpiece “[t]he Court turned a matter of constitutional principle into one of adjudicative etiquette.” The Court’s ruling in Masterpiece has put new pressure on state governments and adjudicatory bodies. They must now go out of their way to make sure that nothing said by any government officials as part of adjudicatory proceedings (or any other proceedings) could be misconstrued as an act of religious hostility by a Court that is often disproportionately attentive to perceived slights against conservative Christians. 

This isn’t to say that it is not important for adjudicative bodies to behave in a religiously neutral manner. It is. But state governments can be forgiven for not trusting the Supreme Court to treat them with neutrality when assessing their conduct for hints of religious bias or hostility. 

Christian Nationalism on the Offensive

As scholars have noted, there has been a shift in the “culture wars.” Conflicts over the scope and nature of religious liberty have become a key component of Christian nationalist movements. As I have argued elsewhere, the close relationship between partisan politics and conservative evangelical Christianity has led to a feedback loop. Partisan political struggles influence the development of conservative evangelical religious convictions. Those religious convictions are used as grounds for religious liberty lawsuits. Those lawsuits, in turn, continue to stoke the culture wars.

303 Creative’s lawsuit is a prime example of this phenomenon. 303 Creative’s owner, Lorie Smith, wants to include on her website a statement that reads, in part, as follows:

“I have the privilege of telling the story of your love and commitment by designing a stunning website that promotes your special day and communicates a unique story about your wedding . . . I firmly believe that God is calling me to this work. Why? I am personally convicted that He wants me – during these uncertain times for those who believe in biblical marriage – to shine His light and not stay silent. He is calling me to stand up for my faith, to explain His true story about marriage, and to use the talents and business He gave me to publicly proclaim and celebrate His design for marriage as a life-long union between one man and one woman. 

These same religious convictions that motivate me also prevent me from creating websites promoting and celebrating ideas or messages that violate my beliefs. So I will not be able to create websites for same-sex marriages or any other marriage that is not between one man and one woman.” 

This statement is remarkable for several reasons. First, it reads like a statement that would be crafted by a First Amendment lawyer for the sake of impact litigation — e.g., by emphasizing the uniqueness of the wedding website and the sincere religious convictions motivating the suit. Second, there is no analog to a statement like this in Masterpiece. Jack Phillips responded to customers who approached him. Lorie Smith is preemptively suing for her right to post a statement on her website announcing that she will discriminate based on sexual orientation and to proclaim her religious motivations for doing so. 

Third, what Smith reveals in her statement is that the very reason she wants to make wedding websites in the first place is to promote her view of marriage. Expressing her religious views reads as the primary goal for expanding her web design business. In addition, she seems to suggest that her sincere religious conviction is not only that she cannot serve same-sex couples but that she must announce that she cannot do so on her business website. She believes that God is calling her to do just that. I suspect that Smith’s convictions are sincere. But I also suspect that she would not have such convictions but for the way in which conservative Christian values have been overtaken by conservative partisan politics in the United States. 

303 Creative provides a test case to see how far the Court’s conservative majority will further this Christian nationalist agenda. ♦

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Recommended Citation

Satta, Mark. “303 Creative v. Elenis: Masterpiece Cakeshop 2.0?” Canopy Forum, June 27, 2022. https://canopyforum.org/2022/06/27/303-creative-v-elenis-masterpiece-cakeshop-2-0/