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Monday Read: Is 303 Creative v. Elenis Masterpiece Cakeshop 2.0?
17 Plays2 years ago
In today’s episode of Interactions, we hear from Mark Satta and his Canopy Forum article “303 Creative v. Elenis: Masterpiece Cakeshop 2.0?”.
In his article, Satta considers an upcoming Supreme Court Case, 303 Creative LLC v. Elenis, which concerns whether a Christian website designer has the right to refuse services to same-sex couples, in relation to a similar case: Masterpiece Cakeshop v. Colorado.
“In many ways, 303 Creative picks up where Masterpiece Cakeshop left off,” Satta writes. “But social, political, and legal circumstances have shifted over the last five years." And, as Satta explains, the free speech issues in 303 Creative are markedly different.
“It is not clear that the website constitutes, even in part, the web designer’s speech,” says Satta. “The more pointed free speech issue — which has no analog in Masterpiece — is the statement that the web designer wishes to include on her business webpage explaining why she refuses to make wedding websites for same-sex couples.”
The statement in question communicates her religious motivations for refusing to provide services to same-sex couples.
Is such a statement protected under the First Amendment?
Does a business owner not only have the right to discriminate against same-sex couples, but also the right under the First Amendment to voice why?
And what might the surge of Christian nationalism in the U.S. mean for how this case could be decided?
Find out on today's episode of Interactions.
Read the original article on Canopy Forum.
Browse our book brochure.
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Transcript
Introduction to Interactions Podcast
00:00:05
Speaker
Hello and welcome to another episode of Interactions, a podcast about law and religion and how they interact in the world around us.
00:00:16
Speaker
In today's episode, we hear from Mark Sata and his Canopy Forum article, 303 Creative v. Alanis, Masterpiece Cakeshop 2.0?
Supreme Court Case 303 Creative LLC v. Alanis
00:00:29
Speaker
In his article, Sata considers an upcoming Supreme Court case, 303 Creative LLC v. Alanis, which concerns whether a Christian website designer has the right to refuse services to same-sex couples.
00:00:45
Speaker
in relation to a similar case, Masterpiece Cakeshop v. Colorado. In many ways, 303 Creative picks up where Masterpiece Cakeshop left off, Sata writes. But social, political, and legal circumstances have shifted over the last five years, and as Sata explains, the free speech issues in 303 Creative are markedly different
00:01:13
Speaker
It is not clear that the website constitutes, even in part, the web designer's speech, writes Sata. The more pointed free speech issue, which has no analog in Masterpiece, is the statement that the web designer wishes to include on her business webpage, explaining why she refuses to make wedding websites for same-sex couples.
First Amendment Protections for Web Designer
00:01:38
Speaker
The statement in question communicates her religious motivations for refusing to provide services to same-sex couples. Is such a statement protected under the First Amendment? Does a business owner not only have the right to discriminate against same-sex couples, but also the right under the First Amendment to voice why?
00:02:02
Speaker
And what might the surge of Christian nationalism in the U.S. mean for how this case could be decided? This is Interactions. I'm Janet Metzger.
Free Speech vs. Discrimination
00:02:23
Speaker
In fall 2017, the Supreme Court heard oral arguments in Masterpiece Cake Shop v. Colorado. The key question was whether a Christian Baker's First Amendment free speech or religious free exercise rights permitted him to refuse to make a wedding cake for a same-sex couple in violation of Colorado's Anti-Discrimination Act. The court's decision in June 2018 did not answer this question.
00:02:53
Speaker
Instead, the court vacated Colorado's ruling against the baker on the grounds that Colorado's adjudicative procedures had exhibited hostility rather than neutrality toward the baker's religious beliefs, violating the First Amendment's free exercise clause.
00:03:13
Speaker
This fall, the Supreme Court will hear oral arguments in another First Amendment case coming from Colorado, 303 Creative LLC v. Alanis. The key questions are, one, whether a Christian website designer has a First Amendment right to refuse to make wedding websites for same-sex couples, and, two,
Wedding Website as Speech Debate
00:03:38
Speaker
whether the web designer has a First Amendment right to post on her business webpage a particular message communicating her religious motivations for refusing to provide such services. In many ways, 303 Creative picks up where Masterpiece Cakeshop left off. But social, political, and legal circumstances have shifted over the last five years.
00:04:04
Speaker
There are five important ways in which 303 Creative and the circumstances under which it is being litigated differ from Masterpiece Cakeshop. In both Masterpiece and 303 Creative, the business owners seeking to discriminate based on sexual orientation argue that they have a First Amendment free speech right to do so.
00:04:29
Speaker
In masterpiece, proving the Baker's free speech claim would have required the Baker to show that when he made wedding cakes, he was engaged in expressive conduct, that is, constitutionally protected acts of expression besides speech, such as burning a flag. The court did not address the Baker's free speech claim, although Justice Thomas defended the Baker's free speech claim in his concurrence.
00:04:59
Speaker
The free speech questions in 303 Creative are different in several important respects. First, wedding websites, unlike wedding cakes, typically include an extensive amount of written text. However,
Smith Doctrine and Religious Freedom
00:05:16
Speaker
the creation of a wedding website with the help of a web designer is a shared endeavor.
00:05:22
Speaker
It is not clear that the website constitutes, even in part, the web designer's speech. Plausibly, the web designer merely provides a platform from which the couple can speak. Perhaps providing such a platform is itself expressive conduct, but it is not obviously so.
00:05:45
Speaker
The more pointed free speech issue, which has no analog in Masterpiece, is the statement that the web designer wishes to include on her business webpage, explaining why she refuses to make wedding websites for same-sex couples.
00:06:01
Speaker
At the time Masterpiece Cake Shop was decided, it was reasonable to think that the baker's free speech claim was stronger than his religious free exercise claim. This understanding was largely due to the rule articulated in the Supreme Court's 1990 decision in Employment Division v. Smith.
00:06:24
Speaker
Smith holds that the religious free exercise clause does not provide for exemptions from neutral and generally applicable laws, that is, laws that don't target religion and are applied to everyone. From the vantage point of 2017, Colorado's Anti-Discrimination Act appeared to be a neutral and generally applicable law.
00:06:49
Speaker
This created an uphill battle for the baker to win his religious free exercise claim. But the Smith Doctrine is weaker today than it was in 2017 in at least two ways. First, there is renewed interest in overturning Smith. At least three of the Justices, Justices Thomas, Alito, and Gorsuch, publicly support overturning Smith.
Fulton v. Philadelphia and Legal Applicability
00:07:16
Speaker
So far, the Court has declined to do so even when given the opportunity. The Court took a different strategy in the 2021 opinion in Fulton v. Philadelphia, which represents a second way in which the Smith Doctrine has been weakened. It has been narrowed.
00:07:34
Speaker
In Fulton, the court held that the city of Philadelphia violated the religious free exercise clause when it refused to renew a contract with a Catholic adoption agency to assist with foster child placement.
00:07:49
Speaker
Philadelphia had refused to renew its contract with the agency on the grounds that the agency would not work with same-sex couples as foster parents. The court held in a unanimous decision that the Smith Doctrine did not apply in this case because the law was not generally applicable.
00:08:10
Speaker
The reason why the law was held not to be generally applicable is that it permitted discretionary exemptions, even though in practice such exemptions had never been made.
00:08:23
Speaker
This seems like a high bar for what counts as a generally applicable law. Going forward, litigants can take advantage of Fulton to argue that a law is not generally applicable, even if there are only far removed possible exemptions under the relevant law.
Book Promotion: Law and Religion
00:08:42
Speaker
We'll be right back after the break.
00:08:50
Speaker
High Interactions Listeners, this is Justin Lateral at the Center for the Study of Law and Religion. If you liked this episode and want to learn more about the interactions of law and religion around the world,
00:09:02
Speaker
Check out the link to our book brochure in the podcast description. There you'll find over 40 new titles like God and the Illegal Alien by Robert Heimburger and Michael Perry's new book on human rights, democracy, and constitutionalism. Each title includes a short description and a link to buy the book online. Thanks for listening to Interactions.
Religious Bias in Legal Cases
00:09:42
Speaker
The concurrences in Masterpiece Cakeshop revealed that the justices in the majority disagreed among themselves about what actions count as a failure to treat a business owner's religious beliefs neutrally. The majority opinion focused on several statements made by members of the Colorado Civil Rights Commission in arguing that Colorado had failed to treat the baker's beliefs neutrally.
00:10:08
Speaker
But the majority also cited the fact that Colorado concluded that three other bakers hadn't violated Cata when they refused to make cakes requested by a Christian with designs like the following, in the shape of a Bible, with a red X over a picture of two grooms, and text reading Homosexuality as a Detestable Sin, Leviticus 18.2.
00:10:34
Speaker
Contra Justice Kagan, Justice Gorsuch argued in concurrence that there was, in principle, no religiously neutral way for Colorado to have ruled against the Christian baker and in favor of the other bakers. But Justice Gorsuch's reasoning failed to take account of some relevant distinctions. Philosopher John Corvino distinguishes between design-based and use-based objections to service.
00:11:04
Speaker
The three bakers who refused to make the cakes with specific anti-gay messages objected to making products with certain designs that they simply didn't sell. No customer could have received an item with that particular design. In that way, the refusal to make the items was disconnected from the fact that the person requesting the cakes was a Christian.
00:11:29
Speaker
Not so in the case of the baker refusing to make a cake for a same-sex couple. In that case, the baker objected to the use that the cake was going to be put to, namely, to celebrate a same-sex couple's wedding. But note that in this latter case, the baker would refuse to sell to a gay couple an identically designed item that he would be willing to sell to a straight couple.
00:11:55
Speaker
The reason for this is the use that the cake would be put to. Corvino argues that in the case of wedding cakes, discriminating based on use at a same-sex wedding amounts to user-based discrimination based on sexual orientation because of the tight connection between use and user in this context.
00:12:18
Speaker
What kind of guide do these distinctions provide in 303 Creative? On one interpretation, the design versus use distinction may seem less apt in the case of wedding websites. This is because wedding websites tend to be unique in a way that wedding cakes need not be.
00:12:39
Speaker
Wedding websites usually include pictures of the couple and text unique to them, such as the couple's names and the date and location of their wedding. These features of the design are not replicated on other wedding websites. Thus, each time a website designer refuses to make a wedding website, they refuse to make a website with a unique design.
00:13:04
Speaker
But, on another interpretation, the design versus use distinction remains apt. This is because website designers often sell reusable, pre-designed templates, which the couples then customize themselves with details unique to them. This is what major wedding website companies like The Knot and Zola do.
00:13:28
Speaker
Were a web designer to selectively sell their templates only to male-female couples and not same-sex couples? This would seem like use-based discrimination so intimately tied to user-based discrimination that it is, in practice, discrimination based on sexual orientation.
Religious Liberty and Culture Wars
00:13:49
Speaker
The owner of 303 Creative has emphasized her interest in creating custom wedding websites for clients. But this, on its own, doesn't resolve which of the two interpretations is the most fitting in this case. Even pre-designed wedding templates are custom in the sense that they allow the purchasers to customize the templates to meet their own wishes and needs.
00:14:15
Speaker
The court gave two reasons for its holding that Colorado acted with constitutionally impermissible hostility toward the baker's religious beliefs. First, as discussed earlier, the majority cited the fact that Colorado ruled in favor of bakers in three other cases.
00:14:35
Speaker
But given the relevant distinctions between the cases, this reason is not good grounds for such a conclusion. Second, and seemingly of greater significance for the court, the majority argued that several statements made by members of the Colorado Civil Rights Commission as part of the adjudicatory proceedings exhibited hostility toward the Baker's religious beliefs.
00:15:00
Speaker
but as I and several others have argued at length, it is not at all clear that these ambiguous statements did in fact exhibit religious hostility.
00:15:12
Speaker
For example, the Court cited as evidence of religious hostility a claim by a commissioner that if a businessman wants to do business in the state and he's got an issue with the laws impacting his personal belief system, he needs to look at being able to compromise.
00:15:32
Speaker
When looked at in context, this claim appears to amount to nothing more than the widely recognized platitude that while the First Amendment right to religious belief is absolute, the First Amendment right to religious conduct is limited.
00:15:49
Speaker
Similarly, the court cited a statement by another commissioner reading, in part, that religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust. To me, it is one of the most despicable pieces of rhetoric that people can use to use their religion to hurt others.
00:16:14
Speaker
In his majority opinion in Masterpiece, Justice Kennedy said of this statement that, to describe a man's faith as one of the most despicable pieces of rhetoric that people can use is to disparage his religion, and that the commissioner even went so far as to compare Phillips' invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.
00:16:42
Speaker
The problem with Kennedy's reasoning is that when you look at the commissioner's statement in context, it is not at all clear that the commissioner's claims were about the baker's, Phillips's, religious beliefs. The commissioner can reasonably be interpreted as merely making some historical claims and normative judgments about that history.
00:17:05
Speaker
If that is the correct interpretation, it is hard to see how this could amount to religious hostility against the baker's religious beliefs. The Court's ruling in Masterpiece has given rise to what Leslie Kendrick and Micah Schwarzman call the etiquette of animus. That is to say, in Masterpiece, the Court turned a matter of constitutional principle into one of a judicative etiquette.
00:17:34
Speaker
The court's ruling and masterpiece has put new pressure on state governments and adjudicatory bodies. They must now go out of their way to make sure that nothing said by any government officials as part of adjudicatory proceedings or any other proceedings could be misconstrued as an act of religious hostility by a court that is often disproportionately attentive to perceived slights against conservative Christians.
00:18:04
Speaker
This isn't to say that it is not important for adjudicative bodies to behave in a religiously neutral manner, it is. But state governments can be forgiven for not trusting the Supreme Court to treat them with neutrality when assessing their conduct for hints of religious bias or hostility.
Lori Smith's Religious Convictions
00:18:25
Speaker
As scholars have noted, there has been a shift in the culture wars. Conflicts over the scope and nature of religious liberty have become a key component of Christian nationalist movements. As I have argued elsewhere, the close relationship between partisan politics and conservative evangelical Christianity has led to a feedback loop.
00:18:50
Speaker
partisan political struggles influence the development of conservative evangelical religious convictions. Those religious convictions are used as grounds for religious liberty lawsuits. Those lawsuits, in turn, continue to stoke the culture wars.
00:19:10
Speaker
303 Creatives lawsuit is a prime example of this phenomenon. 303 Creatives owner Lori Smith wants to include on her website a statement that reads in part as follows. I have the privilege of telling the story of your love and commitment by designing a stunning website that promotes your special day and communicates a unique story about your wedding.
00:19:37
Speaker
I firmly believe that God is calling me to this work. Why? I am personally convicted that He wants me, during these uncertain times for those who believe in biblical marriage, to shine His light and not stay silent.
00:19:53
Speaker
He is calling me to stand up for my faith, to explain his true story about marriage, and to use the talents and business he gave me to publicly proclaim and celebrate his design for marriage as a lifelong union between one man and one woman.
00:20:12
Speaker
These same religious convictions that motivate me also prevent me from creating websites, promoting and celebrating ideas or messages that violate my beliefs. So I will not be able to create websites for same-sex marriages or any other marriage that is not between one man and one woman.
00:20:35
Speaker
This statement is remarkable for several reasons. First, it reads like a statement that would be crafted by a First Amendment lawyer for the sake of impact litigation, for example, by emphasizing the uniqueness of the wedding website and the sincere religious convictions motivating the suit.
00:20:57
Speaker
Second, there is no analog to a statement like this in Masterpiece. Jack Phillips responded to customers who approached him. Laurie Smith is preemptively suing for her right to post a statement on her website announcing that she will discriminate based on sexual orientation and to proclaim her religious motivations for doing so.
00:21:21
Speaker
Third, what Smith reveals in her statement is that the very reason she wants to make wedding websites in the first place is to promote her view of marriage. Expressing her religious views reads as the primary goal for expanding her web design business.
00:21:41
Speaker
In addition, she seems to suggest that her sincere religious conviction is not only that she cannot serve same-sex couples, but that she must announce that she cannot do so on her business website. She believes that God is calling her to do just that. I suspect that Smith's convictions are sincere.
00:22:03
Speaker
But I also suspect that she would not have such convictions, but for the way in which conservative Christian values have been overtaken by conservative partisan politics in the United States. 303 Creative provides a test case to see how far the Court's conservative majority will further this Christian nationalist agenda.
00:22:34
Speaker
That was 303 Creative v. Elena's Masterpiece Cake Shop 2.0 by Marc Sata. You can find the full article on Canopy Forum by following the link in the episode description. Canopy Forum and the Interactions podcast are distributed by the Center for the Study of Law and Religion at Emory University and produced by Anna Knudsen and Ethan Anthony.
00:23:01
Speaker
I am your narrator, Janet Metzger. You can follow Canopy Forum on Twitter or Facebook. Follow interactions on Instagram and subscribe to interactions on your favorite podcast platform. Thank you for listening.