The Supreme Court’s landmark decision in 303 Creative LLC v. Elenis is all the more splendid given the firepower aimed against Lorie Smith, owner of 303 Creative LLC. A heavily armed battery of adversaries filed amicus curiae briefs in support of Elenis. Most of these had a stake in state-enforced assent to homosexuality. Some were hostile to religious influence on the public square. Leading the offensive was the Department of Justice.
The majority opinion in 303 Creative restated particular arguments applied in the 2018 case Masterpiece Cakeshop v. Colorado Civil Rights Commission. It reaffirmed the fundamental obligation of state governments to observe the principle of religious neutrality. In 303 Creative, SCOTUS fortified the 2018 affirmation by asserting unequivocally each citizen’s right to live their religious convictions free from state-coerced speech that violated their conscience.
The state, once again, was Colorado—the one that hounded Jack Phillips, owner of Masterpiece Cakeshop, for refusing to create a custom cake for a same-sex wedding in 2012. A devout Christian, he was dragged through the courts for six years until SCOTUS vindicated him in 2018. Nonetheless, the case was decided on very narrow grounds.
The court determined that the Commission had failed to demonstrate “the religious neutrality that the Constitution requires.” It found the Commission bigoted against Christians. A valid but limited ruling, it left a door open for future radical activism because it skirted a crucial question: Can a citizen be compelled to speak, or stay silent, in ways that violate deeply held religious beliefs?
With that underlying issue unsettled, the Colorado Anti-Discrimination Act [CADA] could still be used against any conscientious objector to certain utterances—including symbolic expressions—mandated by the state. Consequently, LBGTQ activists continued to pursue Phillips. (In 2021, he was fined for violating CADA by rejecting a request for a birthday cake to celebrate a “gender” transition.)
Lorie Smith’s Preemptive Move
Enter Lorie Smith, a graphic artist, website designer, and committed Christian. She had started 303 Creative in order to use her skills for causes consistent with her convictions and interests (e.g., children with disabilities, animal shelters, veterans). She expanded her portfolio to include custom sites celebrating the Judeo-Christian understanding of marriage as one between a man and a woman. This set her in conflict with the same law that dogged Phillips.
In a gutsy, preemptive move, she challenged CADA in court in 2021, but lost. The U.S. Court of Appeals for the Tenth Circuit had ruled that Colorado’s anti-discrimination law did not violate the First Amendment or Smith’s religious free exercise rights because it was a neutral law applicable to everyone.
Two months later she appealed to the Supreme Court of the United States. Her petition named Aubrey Elenis, Director of the Colorado Civil Rights Division, plus eight additional co-respondents. Among these were Philip Weister, Colorado Attorney General and Jessica Pocock, a member of the Colorado Civil Right Commission. (In 2022 Pocock received an honorary degree from Colorado College for her work as a “queer activist.”)
The DOJ Led The Attack On the First Amendment
Hi-octane backing for Elenis and her co-respondents came from Solicitor General Elizabeth Prelogar. The fourth ranking person in the Justice Department, the solicitor general conducts all Supreme Court litigation on behalf of the United States. In effect, Prelogar acted as proxy for Merrick Garland. After law school she had clerked for Judge Garland on the U.S. Court of Appeals for the D.C. Circuit. She later secured Supreme Court clerkships for Justice Ruth Bader Ginsburg and Justice Elena Kagan. Prelogar is a powerfully connected woman.
Joining her amicus brief on behalf of the United States was Bryan Boynton, Principal Deputy Assistant Attorney General; Brian Fletcher, Deputy Solicitor General; and Colleen Roh Sinzdak, Assistant to the Solicitor General. Four additional DOJ attorneys completed the roster.
Added artillery in support of Aubrey Ellis, et alia, was supplied by the ACLU, the American Bar Association, the NAACP, the American Psychological Association, and the GLBTQ Legal Advocates & Defenders. Other amici filing for the respondents included the National Association of Social Workers, the Colorado Psychological Association, and the National League of Cities. One hundred thirty seven members of Congress joined in a single brief; so did a cohort of governors and mayors.
Various civil rights organizations combined to bolster Elenis. The Modern Military Association of America and Minority Veterans of America filed together. The Freedom From Religion Fund united with American Atheists, and other irreligionists in a brief for the respondents. Individual civil rights lawyers and experts in public accommodation law banded together against the petitioner. The New York Bar Association entered its own amicus brief for the respondents. [Review the entire docket here.]
David had better odds against Goliath.
A Singular, Non-Partisan Brief
Among amicus briefs taken under consideration by SCOTUS one deserves mention here: Brief of Creative Professionals and George and Maxine Maynard. Its Table of Authorities included my 2021 essay in The Federalist: “What Happened When A Craftsman Refused To Sell Me The Wedding Ring Of My Dreams.” It had been read online by an attorney for Alliance Defending Freedom [ADF], the conservative advocacy group representing Lorie Smith.
Filed by ADF, Creative Professionals was an exceptional brief. It did not take sides on the parties involved. Instead, it argued for the primacy of free speech. A strategic move, it sidestepped the politics of same-sex marriage to assert the broader authority of free speech and artistic expression. Because custom creative work is inherently self-expressive and communicative, it warrants First Amendment protection.
The four “creative professionals” who signed the brief were a Christian tattoo-artist, an award-winning, in-demand Muslim photographer, a custom baker in Florida, and myself. The tattoo artist gladly works with any customer but will not create designs that he deems dishonorable (i.e., racial or sexual slurs; vulgarity). The baker had fended off a litigious client who wanted a cake with an anti-homosexual theme. The photographer serves clients of all kinds but, given time constraints, occasionally declines commissions that are outside her deepest cultural sympathies.
Creative Professionals quoted generously from my Federalist essay. It described the day a Jewish jeweler, his forearm tattooed with a concentration camp number, refused to inscribe my wedding ring with a specific passage from the Tanakh. He would not make the ring with Ruth’s words to Naomi (“ wither thou goest I will go . . .”) unless one of us was Jewish. Neither of us was.
What drew the ADF’s attention was that my fiancé and I acknowledged the man’s moral right to deny us what we wanted. The brief summarized:
. . . they could have challenged the denial as anti-Christian, or they could have demanded their rights as customers under the law. But “at what cost to the common good?” In the absence of a shared moral code that allows for such differences and denials, courts are left to “wrestle to accommodate malcontents who are not satisfied with the freedom to live differently [but who] demand assent, even obeisance, to their difference.”
The non-partisan character of this particular brief made it an outlier among contending others. All the same, it mattered. It was cited twice in the Supreme Court’s final decision.
NOTE: A version of this essay appeared in The Federalist, July 14, 2023, under the title “303 Creative Brief Asserted Freedom of Speech—And Cited The Federalist.”