It’s the final week of the Supreme Court session and, incredibly, we have yet to see opinions in at least five major cases—including one meant to hack away at what legal protections LGBTQ people have in equal access to public accommodations. If that sounds familiar, it may be ringing the wedding bell of Masterpiece Cakeshop v. Colorado, the 2018 “wedding cake” case brought by the same Christian right group whose case is now before the court.
Both the 2018 case and the one being argued this year, 303 Creative LLC v. Elenis, involve a small-business owner—in Masterpiece Cakeshop, a baker, and in 303 Creative, a web designer—who wish to deny service to same-sex couples who are getting married. But at least in Masterpiece Cakeshop there was an actual confection and a real couple involved. In this latest case, there is no website and no wedding—just an argument from an anti-LGBTQ group in search of the court’s favor.
Masterpiece Cakeshop was not really a fight about wedding cakes; similarly, the case before the court this session is not a fight about wedding websites. Representing the plaintiff—303 Creative, a small business run by a Colorado woman named Lorie Smith—is Alliance Defending Freedom (ADF), a group whose founder dubbed it a “Christian legal army,” with a long history of opposing civil rights protections for LGBTQ people.
But unlike the Masterpiece Cakeshop case, which at least involved real customers wanting a real cake, there is no wedding website. No person has hired Smith to create a wedding website. In fact, Smith has never designed a wedding website, according to her petition to the court. As such, there is no client Smith has told she is rejecting due to her stated religious beliefs that marriage is only allowed between one man and one woman. In the absence of all that, ADF has, instead, fashioned Smith as the victim of an injury that has never occurred.
So who has hypothetically victimized Smith? A Colorado anti-discrimination law, which, since 2008, has included protections from discrimination on the basis of sexual orientation. ADF claims Smith’s desire “to bring glory to God by creating unique expression that shares her religious beliefs of creating wedding websites” is thwarted by this law “because she only wants to make websites that comport with her values that same-sex marriage is illegitimate.” Were Smith to get into the wedding website business, the anti-discrimination law “would force me to say things about marriage I disagree with,” Smith wrote in an opinion piece for The Washington Times, when her case was argued at the Supreme Court last December. “I don’t want to be a government mouthpiece. And I don’t want you or our children to have to face that kind of censorship either. I don’t want anyone to suffer government overreach like I have that claims jurisdiction over my mind and soul.”
Again, none of this has actually yet taken place. But that is what Smith and ADF are claiming. To prevail in this case, they have to characterize their legal battle as one to defend Smith and her rights, which they say are threatened by anti-discrimination laws.
This strategy is central to ADF’s project of eroding the separation of church and state, as investigative journalist Sarah Posner has extensively reported. In the judicial realm, ADF has worked since the 1990s to uphold patriarchal sex and gender norms in American law, from crafting same-sex marriage bans and defending California’s Proposition 8 to creating model abortion ban legislation and defending these bans all the way to the Supreme Court, ultimately ending Roe v. Wade. ADF and its allies have proven that they are in this for the long haul, and have the resources to be: The group has a $76 million annual budget and thousands of attorneys in its network. The goal with 303 Creative, as it was with Masterpiece, is to redefine civil rights protections for LGBTQ people as a form of religious discrimination against Christians.
When the Supreme Court took up Masterpiece, ADF attorneys didn’t get quite the win they were hoping for. Despite being handed down by a conservative court, the opinion didn’t rule on ADF’s claims that the “right” to refuse public accommodation based on objections to someone’s sexual orientation trumps that person’s right to accommodation itself. Still, the decision in Masterpiece, Posner wrote at the time, put “new life into [ADF’s] claims that laws barring discrimination based on sexual orientation are at odds with religious liberty.”
ADF has explicitly situated the case of 303 Creative in “war on woke”–style grievances, as advanced by some of the loudest voices on the right, like Florida Governor Ron DeSantis and newsletter publisher Bari Weiss. (ADF even quotes Weiss in its publicity materials on the case.) ADF’s work in the courts is one part of this broader struggle, in which the Christian right paint themselves—despite their Supreme Court wins, despite their sway over judicial appointments—as underdogs. In this worldview, oppressors are everywhere, from schools with policies that affirm transgender students to the Food and Drug Administration approving mifepristone for medication abortion two decades ago, to “cultural elites,” as ADF decreed this June, who (in their view) devised Pride month “to change you, and to change your children—not always through force, but through the habitual dulling of our moral senses.”
With this current case against anti-discrimination policies, ADF seems to have found a more receptive audience than it did with Masterpiece Cakeshop in 2018. At oral argument for 303 Creative, “the conservative justices mostly ignored the state’s interest in making sure its LGBTQ citizens are not treated as second-class citizens,” Caroline Mala Corbin, a law professor at the University of Miami, observed in December. “Instead, various justices on the right emphasized … how decent people with honorable religious beliefs might oppose same-sex marriage.”
Arguing before the court in December, ADF attorney Kristen Waggoner tried to stick to her message that Smith, her client, was “compelled” to create speech she opposed or else run afoul of the law—if she were ever actually hired to create a wedding website for a same-sex couple, of course. But even should she be hired to design such a wedding website, it doesn’t follow that her speech would be compelled in any way. The anti-discrimination act her suit challenges, the ACLU argued in its brief in the case, “does not prescribe any particular message that artists—or anyone else—must express. If it did, the ACLU would challenge the law as a content-based compulsion of speech.” That is, even if this were not just a case involving something that had not happened yet, the ADF’s basis for bringing this pre-enforcement challenge was divorced from the reality of the law.
Still, just because there is no actual injury to the plaintiff does not mean there is nothing at stake in 303 Creative. Waggoner made a revealing comment during oral argument, when Justice Elena Kagan pressed her on what speech her client was being compelled into, should she be hired to make a website for a same-sex wedding. Was it merely “the fact that it’s Mike and Harry and there’s a picture of these two guys together?” Kagan asked. Waggoner replied in part that were you to be hired to make such a website, “you are announcing a wedding. And if you believe the wedding to be false, then the—the government would be compelling you to say something that you otherwise wouldn’t say.” If this line of argument is legitimized, it would no doubt be extended far beyond hypothetical weddings and websites, reaching the rights of all the groups that ADF seeks to curtail—anyone whose identity, partnerships, and community might be deemed “false.”
It’s a partial victory already for ADF that such a flimsy case was even taken up by the Supreme Court. Not only is Smith not being compelled to celebrate her potential clients’ marriages—chances are, no same-sex couple would even try to hire her. The publicity this case brought to 303 Creative has nearly ensured that. She need not put a statement on her website saying she won’t take same-sex couples’ wedding business; she’s been able to clearly and plainly send her message that she won’t offer them service, using the highest court in the land.
