Supreme Court’s 303 Creative Ruling Upholds Religious Freedom, Mentions The Federalist

The Supreme Court’s landmark decision in 303 Creative LLC v. Elenis is a testament to the resilience of Lorie Smith, owner of 303 Creative. Despite facing a formidable opposition, including the Department of Justice (DOJ), Smith emerged victorious. Numerous adversaries, with vested interests in state-enforced acceptance of homosexuality and a disdain for religious influence in the public sphere, filed amicus curiae briefs in support of Elenis.

One amicus brief that deserves special mention is the “Brief of Creative Professionals and George and Maxine Maynard.” It included a compelling essay from The Federalist titled “What Happened When A Craftsman Refused To Sell Me The Wedding Ring Of My Dreams.”

The majority opinion in 303 Creative reiterated key arguments from the 2018 case Masterpiece Cakeshop v. Colorado Civil Rights Commission. It reaffirmed the importance of religious neutrality for state governments and emphasized every American’s right to live their religious convictions without being coerced into speech that violates their conscience.

The state at the center of these cases was Colorado, where Jack Phillips, the Christian owner of Masterpiece Cakeshop, had faced legal battles for refusing to create a custom cake for a same-sex wedding in 2012. While Phillips was eventually vindicated by the Supreme Court in 2018, the ruling was narrowly focused on the commission’s lack of religious neutrality, leaving the question of compelled speech unanswered.

Lorie Smith’s Preemptive Move

Enter Lorie Smith, a Christian graphic artist and website designer who founded 303 Creative. While her work initially aligned with her convictions and interests, such as supporting children with disabilities and veterans, expanding her portfolio to include custom sites celebrating traditional marriage put her at odds with the Colorado Anti-Discrimination Act (CADA).

In a bold move, Smith challenged CADA in court in 2021. However, the U.S. Court of Appeals for the 10th Circuit ruled against her. Undeterred, she appealed to the Supreme Court of the United States, naming Aubrey Elenis, director of the Colorado Civil Rights Division, and eight other co-respondents, including Colorado Attorney General Philip Weiser and Jessica Pocock, a member of the Colorado Civil Rights Commission. (Pocock, a “queer activist,” received an honorary degree from Colorado College in 2022 for her work.)

Massive Backing for Defense

Elenis and her co-respondents received substantial support from Solicitor General Elizabeth Prelogar, the fourth-ranking official in the Department of Justice. Prelogar, who clerked for Judge Merrick Garland, conducted Supreme Court litigation on behalf of the United States. Joining her were Principal Deputy Assistant Attorney General Brian Boynton, Deputy Solicitor General Brian Fletcher, Assistant to the Solicitor General Colleen Roh Sinzdak, and four additional DOJ attorneys.

Additional support for Elenis came from organizations such as the American Civil Liberties Union, the American Bar Association, the National Association for the Advancement of Colored People, the American Psychological Association, and the GLBTQ Legal Advocates and Defenders. Numerous other amici, including the National Association of Social Workers, the Colorado Psychological Association, and the National League of Cities, filed briefs in support of the respondents. A single brief was signed by 137 members of Congress, as well as a group of governors and mayors.

Various civil rights organizations also rallied behind Elenis. The Modern Military Association of America and Minority Veterans of America filed a joint brief, while the Freedom From Religion Foundation joined forces with American Atheists and other irreligionists. Individual civil rights lawyers and experts in public accommodation law united against the petitioner, and the New York Bar Association submitted its own amicus brief for the respondents. (The complete docket can be reviewed here.)

David had better odds against Goliath.

An attorney from Alliance Defending Freedom (ADF), the conservative advocacy group representing Smith, reached out to me after reading my essay on this website. They asked if I would join other amici curiae to support the court’s analysis of compelled speech in relation to custom creative work.

Brief Arguing for Free Speech Primacy

Filed by ADF, the “Creative Professionals” brief was exceptional. It did not take sides in the specific case but instead advocated for the primacy of free speech. By focusing on the broader authority of unfettered speech and artistic expression, the brief skillfully sidestepped the politics of same-sex marriage. It argued that custom creative work, being inherently self-expressive and communicative, deserves First Amendment protection.

The brief was signed by four “creative professionals”: a Christian tattoo artist, an award-winning Muslim photographer, a custom baker in Florida, and myself. The tattoo artist willingly works with any customer but refuses to create designs he deems dishonorable. The baker successfully defended against a litigious client seeking an anti-homosexual cake. The photographer serves clients of all kinds but occasionally declines commissions that conflict with her deepest cultural sympathies.

The “Creative Professionals” brief extensively quoted my Federalist essay, recounting the day a Jewish jeweler, with a concentration camp number tattooed on his forearm, refused to inscribe my wedding ring with a specific passage from the Tanakh because we were not Jewish. My fiancé and I respected his moral right to deny our request. The brief summarized:

[T]hey 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.

This unique and nonpartisan brief stood out among the others and played a significant role in the Supreme Court’s final decision, being cited twice.