Masterpiece Cakeshop 2.0?

The Supreme Court will weigh whether Colorado’s anti-discrimination protections conflicts with creative professionals’ free speech.

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People visit the plaza in front of the Supreme Court of the United States. (Kent Nishimura / Los Angeles Times via Getty Images)

The Supreme Court on Monday will hear oral arguments in a case that strikes at thorny questions at the intersection of free speech and anti-discrimination law in what may look like courtroom déjà vu. 

The plaintiff is a web designer whose religious objection to providing wedding websites for same-sex couples would run afoul of a Colorado anti-discrimination law. Substitute the web designer with a baker and websites with cakes, and it’s Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission all over again.

In that case, the Supreme Court issued a narrow 7-2 ruling in 2018 that the state of Colorado was inappropriately hostile toward cake baker Jack Phillips—but without addressing the case’s broader First Amendment issues. This time, in 303 Creative v. Elenis, the Supreme Court is expected to issue a more sweeping ruling in considering whether “applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.”

The plaintiff, Lori Smith, owns a graphic and website design business called 303 Creative and says she plans to expand offerings to include wedding websites. Because of her religious beliefs—Smith is a Christian—she wants to limit her products to marriages between heterosexual couples and post a disclaimer on her website to that effect. 

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  1. Emma

    So is the legal argument sound if the business refuses to make a cake for a mixed race marriage? I'm just trying to understand where the line is here. Or if there is one.

    Why is it okay for gay couples but not race or other protected classes?

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    1. Joe

      A mixed race marriage is a marriage that has widely existed and that has the same hallmarks of a non-mixed race marriage. The same cannot be said of gay marriage. There is no tradition of same sex marriage. Even polygamy has a strong historical tradition, but gay marriage does not. Forcing one to call a union between two men or two women a marriage, and thus implying that the relationship is equal to that of an opposite sex marriage (and it is, irrefutably, not equal nor should it be treated equally) is just as Orwellian as this push to enforce these crazy speech codes around pronouns (see the Babylon Bee being banned from Twitter for accurately referring to Rachel Levine as a man).

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      1. Emma

        Mixed race marriages may have always existed, but they were illegal up until 10 minutes ago. And today many claim to be against race mixing generally and mixed marriage specifically based on their views of the faith.

        So are you saying some religious beliefs are valid and others are not? And how do you make that determination? Both are protected classes.

        I see your point, but it seems very subjective based on your view that race has a special asterisk in history that marriage does not.

        Both are defined by the state. Race is a social construct and marriage a contract. God left marriage in our society once it was tied to the tax code.

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        1. Joe

          What I'm really getting to is that you don't even need to wrap yourself around the religious protections of the First Amendment to oppose personally recognizing same sex marriages as actual "marriages". Reason and appeal to historical tradition do the job just fine.

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          Phil H

          The historical default is that mixed race marriages have almost always been legal, even when they were discouraged. Only in the American South and a few other states have interracial marriages been illegal. And even then, I an unaware that such marriages contracted where they were legal, were refused recognition. What was illegal was contracting such marriages in the first place.

          The bottom line is that marriages (including interracial marriages) between a man and a woman can (at least potentially) procreate. That is the reason that marriages have existed and why same-sex unions are not marriages in the true historical sense.

          I don't know why that is so hard to understand. I really don't.

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  2. Jim.H

    I believe the Website developer was willing to work with them, just not design a site that they had a religious objection to.

    So did they really discriminate?

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  3. Joe

    This should be a slam dunk case, in favor of the web designer. It won't be, but it should be. The argument used to be "how do two men getting married affect YOU?" I would say being forced to go along with the lie that two men or two women can be considered to be "married", in effect making a small business owner act as if a same sex union is equal to an opposite sex union, to be such a case. Society benefits from traditional marriage, the government has had a good reason to promote it. Society does not benefit from same sex marriages UNLESS you can find a way to get same sex couples (particularly the men) to stop having these open marriages. Looking to the Monkeypox outbreak is instructive. If you look around gay websites, as I did when Monkeypox was a big story in the news, you'll find that it's very common for gays to bring their "husbands" to threesomes and orgies. Jumping to the so-called Respect for Marriage Act, a reasonable compromise to strengthen marriage while codifying same sex marriage into law would have been to make divorce harder to get and to find a way to restigmatize adultery and open relationships. If this means criminalizing adultery then so be it.

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  4. Token Liberal

    Given the proclivities of this court, the web designer will likely win. In general, the best antidote to speach you don't like is more speech. If businesses end up being allowed to legally discriminate against gays (and others?), then let's use speech to denounce and protest these businesses. What's good for the goose is good for the gander.

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    Dustin Anglin

    I think it's all going to come down to the interpretation of what *is* and what *isn't* expression, and frankly, I wouldn't want to be the one responsible for writing that test.

    Personally, I think it could all be avoided if you consider that 303 could simply say that all their websites will contain biblical messaging, including the that marriage is between one man and one woman, and then simply allow anyone to buy one of those websites and use them as they please. That way 303's expression is explicitly being preserved, as their design stipulations would have to be adhered to by any customer and their viewpoints on marriage would be unambiguous to anyone who saw their product, but equal access to marketplace would *also* be preserved for people of any walk of life. Why any gay couple would want to use a website that explicitly said their marriage was not legitimate, I don't know, but it is certainly their prerogative to buy one if they choose, and not be told they can't buy one simply because of their sexual orientation.

    I think it gets foggier when it comes to custom designing a website, and taking input from the customer as part of that design, but again, as long as 303 is allowed to place stipulations on what content they will and won't put in the design, I don't see any first amendment issues at stake. The act of applying layouts and templates and invites and RSVP infrastructures are not inherently an act of expression. Messaging, wording, images, symbols, etc. I think *are* expression, but as long as no limits are being placed on 303's control of those expressive elements - including in ways that are openly hostile to the concept of same sex marriage - I don't think there should be any reason for SCOTUS to have to build some new "is it expression" test.

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  6. Williambrooks27

    Everyone is forever arguing over this stuff based on the 1st Amendment. This is missing the bigger picture. The 13th Amendment prohibits involuntary servitude (Really, the 13th Amendment merely recognizes the natural right to only those services one wishes to, but that's a different discussion). Forcing people to provide services that they do not wish to provide is a clear violation of the 13th Amendment.

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    1. Petera

      Your interpretation leads to some strange conclusions. If I think women should not be allowed to drive, I don't have to sell or rent a car to them and compelling me to do so.is slavery? Any kind of discrimination becomes permissible. Is that what you are saying?

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        Dustin Anglin

        Yeah, the Civil Rights Act was pretty clear on the goal of protecting access to public accommodations, and that the state has a compelling interest in ensuring equal access to public marketplaces free from discrimination based on protected traits like race, religion, age, and sex. That has been upheld by Supreme court over and over. What the state couldn't do is *force* you into any particular industry at all. If you don't want to sell ice cream to Irish people, then you can always just not sell ice cream, but if you want to sell ice cream, Imma gonna get me some of that ice cream.

        Furthermore, SCOTUS has already ruled in Heart of Atlanta Hotel, Inc. v United States that the Civil Rights Act does not violate the 13th Amendment. (https://en.wikipedia.org/wiki/Heart_of_Atlanta_Motel,_Inc._v._United_States)

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    Rjosephpaquette

    Artists and other creative people should be able to limit the creation of product that is within their artistic and moral sensibilities. A Jewish web programmer should have to make a web page for the KKK; not a vegan make a cake celebrating a child’s first kill Deer hunting. A pluralistic society lets all participate—and choose not to participate.

    Clearly there needs to be accommodations for all who need a hotels or a restaurant. But there are enough cake decorators and web page designers to allow some to opt out.

    The libertarian in me says let the market solve this one. Any government intervention only makes it worse.

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      Olympus Mons

      The KKK is not a protected group, and I would imagine a vegan would not be making any hunting-themed cakes. If they did, then they would need to bake them for anyone.

      If the designer wants to start creating "Wedding" websites, than what does it matter who the happy couple is? That's the crux of public accommodations. There's no such thing as a "straight" wedding or "gay" wedding. They're both "weddings". If you make websites for "weddings", the sex of the couples are irrelevant. If for whatever reason you can't bring yourself to construct a website for a couple because they're gay, then you should get out of the "wedding" website business, because your views are discriminatory against a protected class.

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    Show Jay Janney the 🚪!

    I'm much more in favor of affirmative messages in the marketplace. Imagine a bakery putting a pride flag sticker on its door. That would tell LGBTQIAA that the baker will bake them a custom cake of their choosing, whereas the absence of the flag might encourage them to go elsewhere. In the end, the marketplace will reward one or the other.

    Ditto for churches. Let them decide who they will marry, or allow to be ministers, and let the market decide which ones live and die. Just make it easy for people to know, in advance.

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    1. Petera

      If, in a small town, there were two restaurants and both decided not to serve blacks ... let the market decide?? When did we start letting the market decide when questions of rights were at stake?

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        Phil H

        False comparison. The determining factor is not, strictly speaking, the sexual orientation of the two people. The determining factor is their gender pairing. If a gay man wanted to marry a lesbian, and their wedding were refused, then you would have a point.

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        1. Petera

          I think that is splitting hairs. If the law forbids discrimination both on gender and on sexual orientation, I think the meaning and intent are clear. Does anyone really think that a legislator wrote to forbid discrimination based on sexual orientation but intended it to be OK to discriminate against same sex marriages??

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            Phil H

            The intent might arguably be clear -- or it might not. Remember DOMA co-existed with many state and local level anti-gay-discrimination statues.

            In any case, for something as radical as redefining the millenia-old definition of marriage as between a man and a woman, something more than presumed intent is demanded.

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        Show Jay Janney the 🚪!

        You're only about the 10,000th to try that hypothetical.
        Such you emphasize rights at stake, freedom of speech is also a right. How about providing us a solution that protects both rights?

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        1. Petera

          That hypothetical has been asked 10,000 times (I never claimed it was original) because I haven't seen an adequate answer despite repeatedly asking.

          Sadly, I don't think there is an easy solution that fully protects both rights. Sometimes rights conflict and the court faces the tough decision of picking which is more important.

          Here, I really struggle to understand how some HTML coding is speech and not providing a pretty routine service as part of public accommodation.

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            Show Jay Janney the 🚪!

            To the first point, here's a response: There is a meaningful difference between refusing standard service, and doing custom work. The former has been upheld by SCOTUS numerous times, and has at best limited meaningful speech components. And I'd argue 99% of the commenters on the pirate skiff accept that. In the case of the Colorado Baker, he will sell gays anything he has in his display cases, standard goods. If you want a standard Jack Phillips cupcake, he'll sell you one, regardless of your sexual orientation.

            For custom work, arrangement has been held by the courts to be artistic. That's why many designs are copyrighted, to keep others from using it. The web designer is probably re-arranging existing code to create something unique, but the arrangement of how she does it is what makes it her artistic effort, and thus is considered her speech.

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  9. Bubba

    I’d think the simple question would be whether the state has a compelling interest in assuring gay people have access to wedding cakes etc.

    In the absence of any observed difficulty there would be no compelling state interest.

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    Party-san

    I am curious - and it seems likely that I might find a lawyer who knows the answer among readers of The Dispatch - as to if (and how) this case would be different were the website designer refusing to create a page for an interracial marriage?

    Ignoring religion and just focusing on the speech part here, how would a ruling in favour of 303 Creative not lead to the obvious conclusion that refusing to create for interracial couples is also permitted?

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    1. Mmorrissey001

      Just a guess from someone who is not a lawyer. The objection would have to be based in religious or church doctrine and you would have to have demonstrated prior commitment to a church or religion. You couldn't make it up on the spot.

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      1. Petera

        "The objection would have to be based in religious or church doctrine and you would have to have demonstrated prior commitment to a church or religion. You couldn't make it up on the spot."

        First, in the not so recent past, plenty of churches professed that desegregation was immoral.

        Second, courts have held repeatedly that you do NOT have to point to an institutional church that holds to your beliefs. It is sufficient for you to assert an individually held belief.

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    2. Georges

      I don‘t know. But if some particular person does not want to make a custom cake/website/whatever for you then just find someone who does.
      Somehow we‘ve got this whole thing twisted around where no one can ever refuse.
      That is dangerous and odious.

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        Pat @ Tavi Hall

        The problem is where is the line is drawn. What businesses can refuse to serve you and such can't?

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        1. JG

          All and for any reason.

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          Show Jay Janney the 🚪!

          To me the line is prior & standard vs future and custom. The Colorado baker would sell anyone anything out of his display cases as is. So if you wanted a dozen cupcakes (and who wouldn't?), if he had a dozen in the display case he'd sell them to you. I think if your store is open for business, and someone wants to buy something, then you should sell it to them. I get perhaps only selling six, so you have some for later in the day, or holding some back for an expected customer, something like that, but in general, sell what is already for sale.

          But if they request future work, custom work, you should be able to say no for any reason. What if they want you to design something you think will look ugly? Or you think is beyond your skill level, or could be dangerous, or icky. My mom was a beautician: she'd do anyone's hair, but she declined several women who wanted her to dye their pubic hairs blonde and trim that region into the shape of a heart. Discriminatory? She refused anyone for that, so probably not.

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        Party-san

        I agree with you - while I'll think you're a bigot for refusing to do the creative work, and I'll not patronise your business, I think you should have the right to refuse.

        The interesting thing about this case is that it's a speech case. There is plenty of existing law saying that you cannot exclude classes of individuals from a store, so the line that's being drawn here is one of "where does speech start?" It seems like it would be easy to draw it in the wrong place and walk back some part of civil rights, and so I anticipate SCOTUS giving a narrow and cautious ruling, as they did for Masterpiece Cakeshop.

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        1. Georges

          There’s another dimension that gets little mention:
          If you compel someone to work against eg conscience/principle please find me someone who thinks that will end well.
          Clearly you are better off taking your business to someone who wants it.

          Using myself as an example, I can say for sure engaging me to produce a gay themed cake/website/whatever is a bad idea. Conscientious objections aside I simply have no insights into how to proceed. (I also have no interest in acquiring same.)
          If that makes me a bigot so be it but calling me names does not address the fundamental stupidity of compelling me to do a job for which I am disinclined and ill suited.

          It’s really stunning reading about all the legal hairs to split while no one seems to recognize how patently ridiculous the situation is in the first place.

          Edit: fix typo

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          1. Emma

            I understand your concerns. I also remember the look in my grandmother's eyes when traveling down south terrified that if we went into the wrong restaurant they would hurt her.

            The trauma of that years later was heartbreaking. What is a theory to you is reality for many. The fear is real.

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            Pat @ Tavi Hall

            Again where's the line? Does my restaurant have to serve you or my hotel give you a room?

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      DougCLE

      Keep an eye on Advisory Opinions as the case proceeds. I would expect that to be part of one of the discussions they will have about it.

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