Creative 303 redux: Another win for religious freedom
On June 30, 2023, in 303 Creative v. Elenis, a major win for free speech, the Supreme Court reasoned that the Colorado Civil Rights Commission could not enforce the state’s Anti-Discrimination Act to compel a wedding website designer, Lorie Smith, to provide her professional services to individuals formalizing their same-sex relationship. Smith declined the opportunity to work with the couple because of her religious belief “that marriage should be reserved to unions between one man and one woman” and “will not produce content that ‘contradicts biblical truth.’” The Justices explained that the Commission could not require Smith to work with the couple because doing so would have required her to violate her First Amendment rights to free speech and expression, albeit on an issue involving her religious beliefs.
Almost nine months later, on March 26, 2024, on remand, a federal trial court judge in Colorado entered a final judgment in Ms. Smith’s favor. The nineteen-page order permanently enjoined Colorado officials from seeking “to compel plaintiffs to create custom websites celebrating or depicting same-sex weddings or otherwise expressing messages inconsistent with Ms. Smith’s beliefs concerning same-sex marriage.”
303 Creative concerns an ongoing conflict of rights centered on human sexuality. On the one hand, same-sex couples properly seek to exercise their rights, including, but not limited to, formalizing their relationships, purchasing property jointly, and including each other in their wills just as spouses do in heterosexual marriages.
However, as I wrote in my earlier column about 303 Creative, respect must go both ways. Proponents of same-sex relationships must respect the beliefs of those who religious faiths are different by neither demonizing them nor accusing them of discrimination if they refrain from providing services such as Ms. Smith’s or Mr. Philips that are readily available elsewhere.
In fact, the Court found that the government lacks the authority to obligate people of faith to communicate messages violating their religious beliefs as what can be described as a not so subtle, but entirely unacceptable, form of thought, and speech, control.
303 Creative must be viewed in light of another conflict in Colorado in which public officials disfavored religion. In 2018’s Masterpiece Cakeshops v. Colorado Civil Rights Commission the Supreme Court ruled that officials violated baker Jack Phillips’ rights by displaying clear and impermissible hostility toward his sincere religious beliefs objecting to same-sex “unions”. This ongoing dispute began when Phillips was unwilling to prepare a custom-made cake for a same-sex couple, but would sell them other baked goods.
Returning to 303 Creative, it is unclear how officials could charge Ms. Smith with discrimination over her reluctance to work with individuals who sought to have her communicate a perspective with which she disagreed. The Supreme Court decided that Colorado officials could not force Ms. Smith to provide her unique artistic and technological talents to prepare a website that essentially would have communicated her support for a relationship with which she disagreed in violation of her right to freedom of speech rooted in her religious beliefs.
