Christians Shouldn’t Celebrate 303 Creative: A Perspective from the Missio Dei
David W. Opderbeck
Many Christians celebrate the Supreme Court’s decision in 303 Creative, LLC v. Elenis as a bulwark against coercion. In 303 Creative, the Supreme Court held that a Christian web designer has a First Amendment free speech right to refuse service to couples seeking websites for same-sex weddings, despite state civil rights laws to the contrary. Celebration, however, is both premature and misplaced. Because of its strange procedural posture, it is unclear how 303 Creative might apply in other cases. And from a perspective rooted in the Missio Dei – the mission of God to redeem the world, in which the Church centrally participates – the decision is a mixed bag at best and counterproductive at worst.
The First Amendment issue presented by 303 Creative is complex and interesting, but the basis for the decision – the First Amendment’s Free Speech Clause and not the Free Exercise Clause – narrows the range of cases to which it might apply as precedent. The case’s value as precedent is further diminished because the parties had formally agreed on some otherwise contestable propositions, including the core claim that the web designer’s work was expressive speech.
Reasonable people can disagree about whether or to what extent web design at a client’s direction is protected speech of the web designer. Many wedding websites follow standardized templates, with images and text contributed by the couples and their families. Small web designers usually do not host such websites on servers they control but instead employ larger third-party web hosts. In some instances, though, a web designer might become more actively engaged in taking photos and drafting text, or in customizing design templates to a high degree. There is a broad range of potential factual scenarios that might differ from the facts stipulated in 303 Creative. The facts will differ even more substantially for other service providers such as bakeries, florists, catering halls, and the like. A baker, florist, or catering hall operator might enjoy more room for expressive choices than a web designer who is constrained by the technological limitations of web page displays. On the other hand, social conventions as well as physical limitations also heavily constrain what a wedding cake, floral centerpiece, or table setting must look like.
303 Creative was even more unusual in that the plaintiff had never been asked by a same-sex couple to design a wedding website. The Court has been chary in many other kinds of cases about hearing arguments without a clear showing of tangible harm, under the doctrine of constitutional “standing.” Without the lengthy list of stipulated facts, it is unlikely the Court would have heard the case.
It is hard to imagine a contested case, without a long list of stipulated facts, getting heard in federal court unless the plaintiff actually faces a sanction for refusing service to a same sex couple. In Masterpiece Cakeshop, Ltd v. Colorado Civil Rights Commission, for example, the plaintiff clearly had standing because he faced a sanction, but the case was decided on the narrow factual ground that the Colorado Civil Rights Commission had expressed specific hostility to the plaintiff’s religious beliefs.
303 Creative, like Masterpiece Cakeshop, therefore represents only a small, fact-specific victory for Christians and other religious people who seek exemptions from generally applicable civil rights laws that protect LGBTQ people. The price of that victory to the Christian mission, in contrast, is grave.
These legal gymnastics in 303 Creative contribute to the sense that the decision is more ideologically freighted than otherwise might obtain. Indeed, the ideological freight weighing 303 Creative down is heavy and toxic. It includes decades of demonization of LGBTQ people by the Christian far right. The term “demonization” here is literal, not only metaphorical. Many evangelical Christians have been taught that the “homosexual agenda” is central to a Satanic end-times project to ruin families and destroy the world. These expectations are wrapped in layers of conspiracy theories, such as that reflected in the recent a book by popular “prophecy expert” Paul McGuire and radio host Troy Anderson: “Prophecy experts believe a phased unraveling of America and the world is under way that will lead to what the elite call the global economic ‘reset’ and the rollout of microchip implants for people working worldwide.”
For these believers, cases like 303 Creative reflect a cosmic battle of good versus evil, Christ versus Antichrist, and stability versus apocalypse, in which there is no room for civic compromise. The cultured elites who argue about these issues at the highest levels may not be mired in this conspiratorial swamp, but the energy behind their cause flows from those dark depths. Consider, for example, how Florida Governor Ron DeSantis, educated at Yale and Harvard, exploits such fears in his rhetoric and policies around LGBTQ issues. Anyone who wants to defend the holding in 303 CreativeElenis without admitting this dynamic is uninformed about populist evangelicalism.
Those depths reach the ground sediments of American culture. The earliest federal and state civil rights laws were passed in opposition to deeply held religious beliefs about race. The Republic’s earliest debates about black slavery, through the Civil War and into the Jim Crow era, were theological controversies. These theological controversies changed the Constitution. The Thirteenth Amendment barring slavery after the Civil War rejects the Southern theology of race. It is not a neutral, a-theological statement grounded only in supposedly secular values. The same is true of the Fourteenth Amendment, including not only its guarantee under the Equal Protection Clause but also its enforcement provision against the states. And every state civil rights law regarding places of public accommodation is built on the same values.
The ongoing Christian resistance to these values concerning race was reflected through the Jim Crow era in anti-miscegenation laws. We easily forget that as late as 1983 Bob Jones University pressed its presumed First Amendment right to enact policies against interracial dating and marriage. By 1983 Bob Jones’ belief that the Bible forbade interracial marriage was an oddity even within conservative evangelical Christianity, but it had been a mainstream view in many churches and denominations prior to the Civil War and during Reconstruction and Jim Crow. Even most white Christians in the North who favored abolition opposed interracial marriage for intertwined sociological and religious reasons. No one today argues that a web designer, baker, or other service provider should be exempt from civil rights laws that require equal service regardless of race – at least not yet. But the legal and theological arguments in cases like 303 Creative simply swap LGBTQ identity for race in an effort to construct a Jim Crow regime for sexual orientation.
Both populist and academic defenders of 303 Creative will object that LGBTQ identity and race are not analogous historically or theologically. Historical arguments are moot when a state civil rights law of general application specifically includes sexual orientation. The theological arguments are far weightier. The colonial and antebellum theologians who defended slavery on Biblical grounds had the easier argument, at least on a superficial and literalistic reading of some Biblical texts, but their specific racial arguments about dark-skinned African people were questionable within the deeper Christian tradition. Sexual orientation, in contrast, is a novel concept compared to the thousands of years of Jewish and Christian ethical traditions about sex and marriage. Christians who find themselves unable to embrace same-sex marriage are not all merely bigots and must enjoy the right to live and practice their faith as they understand it.
But there are obvious differences between the law that protects personal belief and rights of association and the law that exempts some people from obligations to treat everyone equally in the public marketplace – differences in policy and legal doctrine, but more importantly from the perspective of this essay, theological and missiological differences. According to the canonical Gospels, Jesus was reproved by important religious leaders – the Pharisees, Sadducees, Scribes, and Lawyers – for table fellowship with sinners, including prostitutes, tax collectors who collaborated with the Roman overlords, religious non-conformists (the Samaritans), and other shady characters. We must acknowledge that the Gospels’ negative portrayals of groups such as the Pharisees, whose complex history extends well before and after the events of the Gospels and who sit at the headwaters of Rabbinical Judaism, raise difficult historical-critical and interreligious questions. Nevertheless, we can at least note that the Gospels position Jesus as a prophet who sharply challenges the notion that faithful practice entails refusing to associate with marginalized people. From the perspective of a faith rooted in the life and teachings of Jesus, then, it is no victory to obtain a ruling from a secular court permitting a legal wall of separation between Jesus-followers and marginalized “sinners” in the public marketplace.
An apologist for 303 Creative might object that, in contemporary North American popular culture, gay couples are celebrated, not marginalized. The Christian who takes an unpopular stand against this presumed cultural decay therefore is a hero, not a Pharisee. This heroic narrative is compelling but misguided.
First, most obviously, Jesus criticized co-religionists who thought themselves righteous because they had culturally and legally distanced themselves from pagan Rome. He called them hypocrites, not heroes. Indeed, for Jesus, the hypocritical religious authorities were the prime movers of the apocalypse – not outcast sinners.(See Matthew 23:24). The tax collectors, prostitutes, Samaritans, and the like welcomed by Jesus were rejected by this minority religious community more stridently than by the dominant Roman society. Nobody likes tax collectors, but to the Romans the Jewish subjects who served this role in Palestine were servants of the Empire, not traitors. Sex workers were mostly low-status or enslaved people in the Empire, but in the Roman patriarchal culture no great sin or social taboo was attached to a man who used prostitutes. And the Romans cared nothing about squabbles between the Samaritans and other Jewish sects, except to the extent they created civil unrest.
Of course, Jesus also criticized pagan Rome. He didn’t suggest that religious Judeans should simply assimilate and adopt Roman mores with a veneer of Jewishness. Instead, he deepened his critique by appealing to what many of the Jewish sages agreed was the heart of the Torah, the law of love. In the Sermon on the Mount, he offered a fresh exposition of Torah that emphasized humility and sacrifice. In gathering his disciples and sending them out into the countryside to preach the Kingdom of God, he initiated a new community governed by peaceable norms radically different than Roman rule.
This highlights the second reason why 303 Creative’ heroic narrative is misguided. The heroism of the community gathered by Jesus centered on sacrifice. Jesus called his followers to carry their crosses, and he went to the cross himself. If a web designer, baker, catering hall operator, or the like truly believes she must refuse service to gay clients in violation of the law, the “heroic” path is to accept peaceably the consequences of that resistance. If this means, for example, that a web designer must exit the wedding website business, let that relatively tiny sacrifice count for something. Surely this is not like an early martyr in the Roman arena holding the Centurion’s sword to her own throat, but perhaps it is more than nothing.
An informed reader will note that, despite Jesus’ welcome of sinners, St. Paul denounced homosexuality in strong terms, as the apotheosis of lawlessness, in the first chapter of his letter to the Romans. (See Romans 1:26-27). Surely Paul authorizes us to speak the same way today? Setting aside the significant translation and contextual questions around Paul’s conception of homosexual conduct in Romans, Paul’s answer in that letter is no: “You, therefore, have no excuse, you who pass judgment on someone else, for at whatever point you judge another, you are condemning yourself, because you who pass judgment do the same things.” (See Romans 2:1). Paul’s missionary efforts to include Gentiles within the community of Jewish Jesus-followers were perfectly consistent with Jesus’ inclusive ministry. Like Jesus, Paul highlighted hypocrisy, and urged the Roman Christians to “as much as it is possible, as far as it depends on you, live at peace with everyone.” (Romans 12:18). Paul’s concept of Christian missions nowhere authorizes preemptive strike litigation seeking Ceasar’s aid in advancing the Kingdom of God, much less an angry and exclusionary concept of that Kingdom.
So should the Christian community then never appeal to secular law against oppression from the state? There is not much warrant in the New Testament for any expectation that Caesar will come to the Church’s aid, and even less warrant for a spirituality of reliance on Caesar’s protection. In the vision of the New Testament apocalyptic, after all, the spirit of Caesar is the spirit of Antichrist. But there is some warrant, in the scriptures and in the history of early Christian communities, for an appeal against restrictions on the freedom to gather and practice the faith, no less than other cults and religions that enjoyed the same freedoms. There is also a warrant for the view that individual Christians need not, and should not, actively seek out martyrdom. In this perspective, a case like Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission represents something historically grounded and productive, by allowing Christian communities to gather and operate in their ministerial capacities on their own terms, within a broader civic framework. But petitioning the state for special permission not to associate with an undesirable class of persons in the public marketplace contradicts the heart of the Christian mission. The dynamic that prompts this kind of request is cause for lament, not celebration.♦
*Thanks to Angela Carmella and Perry Dane for helpful comments on an earlier draft of this essay.
David W. Opderbeck is Professor of Law and Affiliate Professor of Religion at Seton Hall University. He is the author of Law and Theology: Classic Questions and Contemporary Perspectives (Fortress Press 2019) and The End of the Law: Law, Theology and Neuroscience (Wipf & Stock /Cascade 2021).
Opderbeck, David W. “Christians Shouldn’t Celebrate 303 Creative: A Perspective from the Missio Dei.” Canopy Forum, October 17, 2023. https://canopyforum.org/2023/10/17/christians-shouldnt-celebrate-303-creative-a-perspective-from-the-missio-dei/.