The Puzzle of 303 Creative

3o3 Creative LLC v. Elenis has all the marks of a Masterpiece Cakeshop redux: From the same state of Colorado, with the same Civil Rights Commission, applying the same statute, and eager to pounce on anything that hints of a refusal to accept same-sex marriage as a good. In this case, instead of Jack Phillips the baker, we have Lorie Smith, the owner of 303 Creative Websites. Like Jack Phillips, she is readily willing to serve people regardless of their “sexual orientation,” but she is not willing to make a gesture of accepting and approving same-sex marriage by designing a website to celebrate same-sex marriage. In 303 Creative, Smith brought a “pre-enforcement action” against Colorado, hoping that the courts would rule in advance that it would be unconstitutional to prosecute her for declining to design sites for same-sex weddings. The lower courts ruled against her, and she appealed to the Supreme Court, which recently heard the oral argument in the case and will announce its decision later this term. 

Smith said she would claim her right to “speak messages that are consistent with her religious convictions.” The Civil Rights Commission denied that this was a case of “free speech” at all. And yet her choice to refuse service for same-sex weddings would be as much an act of expression as burning a draft card, or wearing a black armband in opposition to the war in Vietnam. 

The commission insisted that Smith, with her business, should be treated as a “public accommodation”—a private business, but open to transactions with the public. And as a public accommodation it would be subject then to serious restrictions on the kinds of people and business it would be free to reject. The Civil Rights Act of 1964 brought a new reach to the federal government in barring even private businesses from discriminating on the basis of race, religion, and national origin, and a short time later the laws would add discriminations based on sex. In Colorado, the Antidiscrimination Act carried things even further by barring discrimination based on “sexual orientation.” That act was passed before the Supreme Court installed same-sex marriage in the Obergefell case. But the statute was applied to Jack Phillips as it has now been applied to Lorie Smith: The refusal to accept same-sex marriage was read by the commission as a mark of the deeper underlying sin, the willingness to cast an adverse moral judgment on the homosexual life. 

As the case of Lorie Smith headed into the long argument before the Supreme Court, the twin issues that perplexed the justices in the case of Masterpiece Cakeshop were still perplexing. And neither one could finally provide the ground for the judgment. The argument on behalf of Lorie Smith, as with Jack Phillips, is that: (a) this is indeed a case of compelled speech, forcing her to affirm things she does not mean and silence herself in expressing her convictions, and (b) what is engaged here are convictions firmed up in her religion. Neither one could supply the ground for resolving the case, but they were the only strands that Lorie Smith’s lawyers could clutch. For the most decisive argument had been foreclosed them in Justice Kennedy’s opinion in Obergefell and other precedents of the Court. 

On the matter of religion, or religious persuasion, Justice Jackson caught the problem: Would the Court honor a religious exemption for people drawn from the circle of the Rev. Bob Jones, who thought there was a scriptural foundation for the separation of the races? I had posed the same question in response to that extravagant line in the concurring opinion of Justices Alito and Gorsuch in the case of the Masterpiece Cakeshop baker: “Just as it is the ‘proudest boast of our free speech jurisprudence’ that we protect speech that we hate, it must be the proudest boast of our free exercise jurisprudence that we protect religious beliefs that we find offensive.” It seemed quite implausible that even the large-natured Justices Alito and Gorsuch would protect a baker who bore an earnest religious objection to interracial marriage. 

Then what of the matter of coerced speech? In one of his earliest cases on the Court, David Souter provided the fifth vote for a conservative majority to uphold restrictions on the encouragement or counseling of abortions. The restrictions applied to those organizations that received federal funds under Title X of the Public Health Service Act of 1970. The purpose of the act was to support “a broad range of acceptable and effective family planning methods and services.” And yet, it was made clear that the “Title X project may not provide counseling concerning the use of abortion as a method of family planning or provide referral for abortion as a method of family planning.” 

But when it comes to restraints on speech placed emphatically and explicitly by law, it is hard to provide a more notable example than the restraints laid down in the Fair Housing Act of 1968. Just as the Civil Rights Act reached private businesses open for transactions with the public, this addition to the Civil Rights Act extended the ban on racial discrimination even to privately owned dwellings. In its attempt to sweep away racial discrimination in all of its hidden recesses, the act made it unlawful

to make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination.

This explicit barring of speech has become rather unfamiliar to us now, but even more lost to recognition these days is the animating logic behind this law. It was nothing other than a moral logic: Racial discrimination in all of its instances was to be branded as deeply, irredeemably wrong, and if that were the case then all published notices promoting this deep wrong could rightly be forbidden and silenced. But on this point there has been an even more dramatic example in our history—an example that connects the freedom and restraint on publishing with the logic of a moral judgment. It was the one offered by Abraham Lincoln in his classic speech at the Cooper Union in New York (in February 1860): “If slavery is right,” said Lincoln, “all words, acts, laws, and constitutions against it, are themselves wrong, and should be silenced, and swept away. If it is right, we cannot justly object to its nationality—its universality; if it is wrong, they cannot justly insist upon its extension—its enlargement. . . . Their thinking it right, and our thinking it wrong, is the precise fact upon which depends the whole controversy.” 

That is exactly what is engaged in the cases of Lorie Smith and Jack Phillips. But that moral argument is simply not available to them because it was decisively foreclosed, and for all practical purposes ruled out, by Justice Kennedy’s opinion in Obergefell v. Hodges, the case that installed same-sex marriage. For there was no getting away from it. Kennedy’s opinion affirmed, for the Court, the deep rightness of same-sex marriage, and the wrongheaded animus of those who would resist it. Still, Justice Kennedy recognized the depth and timeless hold of the moral and religious teaching that would reject same-sex marriage. And so he was able to take the side of Jack Phillips, not because he found anything tenable in Phillips’s rejection of same-sex marriage, but because he thought that the Civil Rights Commission, prosecuting Phillips, showed a gratuitous contempt for Phillips and his religious convictions. 

That is what made it plausible for Justice Alito, in the oral argument in Lorie Smith’s case, to bring the discussion back to Justice Kennedy. Alito put it to Eric Olson, the Deputy Solicitor General of Colorado, in this way: “In light of what Justice Kennedy wrote in Obergefell about honorable people who object to same-sex marriage, do you think it's fair to equate opposition to same-sex marriage with opposition to interracial marriage?” Alito must have been caught in some surprise when Olson replied instantly that indeed he did see the opposition to same-sex marriage as on the same plane as opposition to interracial marriage. He was quite willing to allow that “honorable people have different views on this issue.” But there were honorable people who had different views on all major issues resolved by legislatures and courts. The hard fact was that Kennedy and the Court in Obergefell had brought the issue of same-sex marriage to a decisive, legal judgment. 

Since the days of Justice Holmes there has been an incorrigible willingness on the part of lawyers to see legal decisions as judgments that may be readily detached from moral judgments. But the logic is unbreakable, for the logic of morals begets the “logic of law.” We need some compelling judgments on the things that are right or wrong, just or unjust, before we would be justified in imposing laws on people. What the lawyers on my side seem to have trouble grasping is that the defenders of same-sex marriage see that arrangement as profoundly, morally right. Seen through that lens it is quite as wrong to reject same-sex marriage as to discriminate on the basis of race. No one would take seriously a claim by anyone of the old Bob Jones persuasion to be exempted on religious grounds from the laws that bar racial discrimination, and I know of no church or religious organization that makes that claim today. But in the same way, the defenders of same-sex marriage see no defensible ground for a religious claim here as well. The libertarians point out that if Lorie Smith or Jack Phillips refused to deal with same-sex weddings, there are plenty other bakers or web designers who would be happy for the business. But for the defenders of same-sex marriage, that argument is beside the point: They regard same-sex marriage as deeply rightful, and those who reject it, or cast an adverse moral judgment on it, are wrongdoers. They deserve to be publicly branded as wrongdoers, and receive some punishment or penalty. 

And so the inescapable core of the matter again, as Lincoln had it: “their thinking it right, and our thinking it wrong, is the precise fact upon which depends the whole controversy.” But that is exactly the strand of argument that has been barred to the lawyers defending Lorie Smith and Jack Phillips in these cases. Unless, that is, they are willing to make the case that Obergefell was wrongly decided, and with that argument they would not make it through a District Court judge. Hence their need to reach out to other familiar, plausible-sounding rights, as the right to speech or religious freedom. But since the main lines of these arguments won’t work, the lawyers and justices have been drawn to refinements, even more distant from the heart of the case. 

And so Eric Olson, for Colorado, insists that Lorie Smith was not compelled to speak any words: This was simply the case, he argued, of a public accommodation or a business refusing to render service because of the sexual orientation of the customers. 

Justice Alito surely had a point then when he wondered, late in the morning, whether it was time to take another look at the range of businesses that can be brought under that designation of a “public accommodation.” But whether he sparked it or not, the idea brought forth two examples, from Justices Kavanaugh and Barrett, that opened up another angle on the subject. Justice Kavanaugh raised the question of a group of writers who have written speeches in the White House and now make their services available. Would they be regarded as a “public accommodation” and forced “to write speeches that violate their most deeply held convictions”? Eric Olson assured Justice Kavanaugh that “Speech writers aren't to be public accommodations.” But just why that was the case, he could not exactly say. Kavanaugh sharpened the problem.   What about:

a publishing house that says . . . we support pro-choice positions. We're not going to publish books that support a pro-life position or that we support same-sex marriage and we're not going to publish books that take a different position on same-sex marriage. Does the publishing house have a First Amendment ability to select the kinds of books that it will publish along the lines of my hypotheticals there?

Olson responded that a publishing house is not a “public accommodation,” but then Kavanaugh pressed one step further: “But, if it were a public accommodation, it would still have a First Amendment right, correct?” Mr. Olson said yes. 

That should have been enough for checkmate. But Justice Barrett came back at Olson with the same challenge, from another angle. She offered the possibility of “a gay rights group that wants to publish gay rights announcements online all year round, not just for gay pride month, because it wants to celebrate love in that community, and so it publishes only same-sex marriage announcements and turns away opposite sex.”

Forgetting his response to Kavanaugh, Olson fell back on the possibility that this publishing business might not be a public accommodation. But Barrett followed through: “Well, they're paid . . . I mean . . . it's a business, it's a commercial enterprise, but they craft these announcements for the gay community.” Switching from his response to Kavanaugh, Olson held that the gay enterprise may indeed be a public accommodation. And so, said Barrett, “they can be compelled to . . . it's not that they have anything against opposite-sex unions, but they can be compelled to give their, you know, web space to those . . . announcements even though it's not consistent with the message of their organization?”

Olson had given two different answers to what had been essentially the same question, which moved Barrett to echo Justice Alito and touch the key to Olson’s floundering: “But it seems,” she said, that “you can't get out of everything by defining public accommodation narrowly or broadly depending on it.” 

From different angles Kavanaugh and Barrett had backed into a deep principle that did not depend either on “speech” or the defense of “religious freedom.” They were touching a principle at the heart of the First Amendment, and indeed a principle that would be there even if there were no First Amendment—just as John Quincy Adams had argued that the right to petition the government was simply implicit in the idea of a free government and the rule of law even if it hadn’t been mentioned in the First Amendment. In our case law, the point was brought out clearly by Justice George Sutherland in his strong dissent in Associated Press v. National Labor Relations Board (1937), in which a closely divided Court sustained the policies of the New Deal in imposing unions. In this case, a publisher that was deeply opposed to compulsory unionism was forced to accept a labor union. The Court held that no speech had been restricted, but as Sutherland pointed out in his dissent, there was an even deeper principle of the First Amendment: The “right of the people peaceably to assemble” marked the freedom of people to associate with others in seeking ends they all shared. For if there is such a right to associate, it must surely entail, as Sutherland held, a right to preserve the integrity of that association. 

Sutherland’s point may be clearer if we consider a hypothetical closer to the politics of our own day. Imagine that a pro-choice journal is established to promote the cause of abortion. An editor in the journal suddenly undergoes a conversion to the anti-abortion side, as many other activists have. The management seeks to remove her, but she invokes the First Amendment and insists that she is being fired on account of her moral and political views. But she would still be free, of course, to publish her views and attach herself to any pro-life organization in the country. That is something strikingly different from the law actually forbidding her to express her views—or forbidding her from joining any pro-life organization. The decisive point is that, if people are free to associate with others for a legitimate end, they must have the right to preserve the integrity of their association, if only by ensuring that their members are still committed to the same ends that brought them together.  

But as with anything else in what we do, or the organizations we form, there is a moral boundary. The right to associate presumably means the right to associate in pursuit of legitimate ends, not criminal enterprises. It is arguable that in this country now no organization committed to principles of racial segregation will be regarded as a legitimate organization. But on the matter of abortion or same-sex marriage, things have not proceeded to that point. Even when Roe v. Wade provided the law on abortion for the land it was still legitimate for people opposed to abortion to become widely active politically and produce many vibrant pro-life organizations. Justice Kennedy in Obergefell evidently did not think that the people resisting same-sex marriage were on the same plane as people willing to discriminate on the basis of race. He no doubt believed that there would continue to be a right to hold that the only rightful understanding of marriage is the union of one man and one woman committed to one another in law. There could be no doubt then, in turn, of the right to preserve organizations dedicated to the defense of that understanding of marriage, or the right of people to hold to those convictions when they run publishing houses. It is more than a minor scandal that many publishing houses these days will not produce books that call into question the unexplained passion for “transgenderism,” let alone books that offer a critique of the homosexual life. It is no threat to same-sex marriage that people are still free to express their reservations about it. Lorie Smith poses no threats to those unions, and the wide freedom claimed, without apology, by publishing houses should attach with no strain to other private enterprises as well. It should extend, then, without a moment’s doubt, to people who design cakes—or websites.

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding in Washington, D.C. 

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Image by Ted Eytan and The Organization for World Peace licensed via Creative Commons. Image cropped.