303 Creative LLC v. Elenis: The Sequel to Masterpiece Cakeshop

By: Nicklaus Johnson^*

The First Amendment to the U.S. Constitution protects religious liberty—but just how far does that protection go?^[1] In recent years, the U.S. Supreme Court has not been shy about wading into this debate over how to resolve the conflict between religious liberty and secular laws.^[2] Last term, for instance, the Supreme Court issued a controversial 6-3 decision—Kennedy v. Bremerton School District—holding that a high school coach’s on-field prayer after football games was constitutionally protected religious exercise.^[3]

This term, the Supreme Court is scheduled to take up yet another potentially controversial case—303 Creative LLC v. Elenis.^[4] In 303 Creative, the Court must decide whether it would violate the First Amendment’s free speech clause to compel a website designer to design websites for same-sex weddings under a Colorado antidiscrimination law.^[5] The website designer, Lorie Smith, wants to only create websites for opposite-sex weddings because same-sex weddings, she claims, are inconsistent with her religious beliefs.^[6]

303 Creative is, in several ways, a rehash of Masterpiece Cakeshop v. Colorado Civil Rights Commission, another relatively recent Supreme Court decision. In Masterpiece, the Court overturned an order by the Colorado Civil Rights Commission requiring a Christian baker to make cakes for gay couples’ weddings because the Commission (1) demonstrated “hostility to religion” through its comments and (2) treated the baker differently than other bakers in similar cases.^[7] First, 303 Creative is similar to Masterpiece in that it actually involves the exact same Colorado antidiscrimination statute that was at issue in Masterpiece.^[8] Also, like Masterpiece, 303 Creative involves a religious individual who seeks to avoid being compelled by law to provide a service that communicates a message that the individual disagrees with for religious reasons.^[9] Lastly, 303 Creative resembles Masterpiece because the petitioners in both cases make free speech arguments (i.e., that the First Amendment prohibits government-compelled speech, particularly concerning religion).^[10]

While 303 Creative and Masterpiece do share some similarities, they are also different in a couple of ways. For example, the cases differ because Lorie Smith (the petitioner in 303 Creative) “has never offered her services or been approached by a same-sex couple, nor is there evidence that Colorado is looking to punish her for her views.”^[11] In other words, Smith has not yet been asked to make a website that would endorse a message contrary to her religious beliefs—she is suing to strike the law down prospectively. This differs from what happened in Masterpiece. In that case, Jack Phillips (the petitioner) was actually approached by a gay couple seeking his services (i.e., designing a wedding cake), and the state took action against him when he refused his services to that couple.^[12] Another major difference between the two cases is that the Supreme Court has limited its review of 303 Creative to be about free speech only.^[13] That is, the Court will not consider the case under the free exercise clause, unlike Masterpiece, in which the Court addressed arguments made under both the free speech clause and the free exercise clause.^[14]

So, while 303 Creative is not necessarily Masterpiece 2.0, this case does present an opportunity for the Supreme Court to make some important post-Masterpiece clarifications. Some have criticized Masterpiece for its very narrow holding.^[15] The main question left unresolved by Masterpiece is whether, assuming an individual’s religious beliefs are treated fairly by the government, the government can compel a businessowner to engage in speech (including expressive conduct) that violates said businessowner’s religious beliefs. The Supreme Court’s composition has changed since it decided Masterpiece—conservatives now have a 6-3 majority—so it is unclear how the Court will rule on this issue.^[16]Regardless of what the Court does in 303 Creative, the decision is bound to be controversial, making this a key case to watch.

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^* Nicklaus Johnson, J.D. Candidate, University of St. Thomas School of Law Class of 2023, Senior Editor.

^[1] See U.S. Const. amend. I.

^[2] See, e.g., Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014); Masterpiece Cakeshop, Ltd. v. Colorado C.R. Comm’n, 138 S. Ct. 1719 (2018); Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020); Fulton v. City of Phila., Pa., 141 S. Ct. 1868 (2021).

^[3] Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2432–33 (2022).

^[4] OCTOBER TERM 2022 CASES FOR ARGUMENT, U.S. Sup. Ct. (Oct. 18, 2022), https://www.supremecourt.gov/orders/22grantednotedlist.pdf.

^[5] Robert Barnes & Ann E. Marimow, FAQ: What Cases Are Before the Supreme Court This Term?, Wash. Post (Oct. 4, 2022, 3:05 PM), https://www.washingtonpost.com/politics/2022/10/01/supreme-court-cases-decisions-2022-2023.

^[6] Id.

^[7] Masterpiece, 138 S. Ct. 1719 at 1732.

^[8] 303 Creative v. Elenis, All. Defending Freedom (Sept. 12, 2022), https://adfmedia.org/case/303-creative-v-elenis.

^[9] See id.

^[10] See id.; Masterpiece, 138 S. Ct. 1719 at 1726 (“[The petitioner] . . . asserted that applying [the CO law] in a way that would require him to create a cake for a same-sex wedding would violate his First Amendment right to free speech by compelling him to exercise his artistic talents to express a message with which he disagreed.”).

^[11] Robert Barnes, Supreme Court Will Hear Another Clash Pitting Religious Rights Against Laws Protecting LGBTQ People from Discrimination, Wash. Post (Feb. 22, 2022, 11:12 AM), https://www.washingtonpost.com/politics/2022/02/22/supreme-court-same-sex-weddings.

^[12] Masterpiece, 138 S. Ct. 1719 at 1723.

^[13] Amy Howe, Justices Will Hear Free-Speech Claim from Website Designer Who Opposes Same-Sex Marriage, SCOTUSblog (Feb. 22, 2022, 4:11 PM), https://www.scotusblog.com/2022/02/justices-will-hear-free-speech-claim-from-website-designer-who-opposes-same-sex-marriage.

^[14] Masterpiece, 138 S. Ct. 1719 at 1723 (“The freedoms asserted here are both the freedom of speech and the free exercise of religion.”).

^[15] See, e.g., Mark L. Movsesian, Masterpiece Cakeshop and the Future of Religious Freedom, 42 Harv. J.L. & Pub. Pol’y 711, 713 (2019) (“Masterpiece . . . does relatively little to resolve the conflict between anti-discrimination laws and the right of business owners to decline, out of sincere religious conviction, to provide services in connection with same-sex weddings.”).

^[16] Nina Totenberg, The Supreme Court Is the Most Conservative in 90 Years, NPR (July 5, 2022, 7:04 AM), https://www.npr.org/2022/07/05/1109444617/the-supreme-court-conservative.