303 Creative v Elenis Illustrates Supreme Court’s Shift Right

On December 5, the Supreme Court heard oral arguments for 303 Creative v Elenis, a case built on a hypothetical situation in which Lorie Smith might be forced to design a wedding website for a same-gender couple. 

Background

In 2008, Colorado amended its anti-discrimination act (CADA) to extend protections to the LGBTQ community. This means that businesses cannot refuse to provide services to a potential customer on the basis of being LGBTQ. 

So, when Lorie Smith, a website designer, decided to try her hand at wedding websites, she took offense to the idea that she could not refuse to design a website for a same-gender couple without being fined or facing other penalties. Though nobody had asked her to do so, and Colorado had not enforced the provisions of CADA to force her to do so, the idea that this might happen was so distressing to Smith that she filed a pre-enforcement challenge to the law in 2016.

In 2019, the district court ruled against Smith after awaiting a decision on Masterpiece Cake Shop v Colorado Civil Rights Commission. This was an infamous case in which baker Jack Phillips refused to bake a cake for a wedding between two men. Smith took 303 Creative v Elenis to the 10th Circuit Court of Appeals, which upheld the decision. Unsatisfied with her results, the case went to the Supreme Court.

Kristen Waggoner and ADF

Kristen Waggoner is the current CEO, president, and general counsel of the Alliance Defending Freedom, a right-wing, Christian legal organization that has been designated a hate group by the Southern Poverty Law Center. She has represented litigants in several cases similar to 303 Creative v Elenis. Before moving to the ADF, she defended Baronelle Stutzman in the Arlene’s Flowers Lawsuit of 2013.

In the above-mentioned 2018 case, Masterpiece Cake Shop v Colorado Civil Rights Commission, Waggoner was designated lead counsel by then-CEO Michael Farris. The Supreme Court found in favor of Jack Phillips, though this was a narrow ruling, meaning the court declined to set a precedent.

Oral Arguments

During oral arguments, Justice Sotomayor repeatedly pressed Waggoner on what a designer like Smith could refuse to do based on their personal values. Could they refuse to make wedding websites for disabled people or interracial couples? 

Waggoner’s only response was that it would be “highly unlikely” for a company that served Black Americans in other capacities to refuse service for an interracial marriage. She later said that a website designer should be allowed to refuse to provide a wedding website for a disabled person: “If you don’t believe they (disabled people) should be telling their story, and what they’re asking you to do is tell their story, then you don’t have to do that.”

Despite this, Waggoner agreed that Justice Ketanji Brown Jackson’s imaginary photography studio that refused to take pictures of nonwhite children on Santa’s lap would be illegal discrimination, while struggling to verbalize the differences between those two scenarios, or the theoretical same-gender marriage that sparked this case to begin with.

Later, Justice Samuel Alito thought it would be appropriate to expand on Justice Jackson’s hypothetical and compare Smith’s situation to a Black mall Santa being forced to take a photo with a child in a Ku Klux Klan hood. Eric Olson, arguing on behalf of Colorado, said that, no, KKK uniforms are not protected under public accommodation laws. Shocking.

Closing Thoughts

Lorie Smith has created a situation in which she can present her story however she likes without rebuttal because this case has no defendants. Smith is able to garner sympathy for her homophobic views because there is not a story on the other side to relate to. 

A case like 303 Creative v Elenis going as far as it has is dangerous. If the Supreme Court finds in favor of Smith, which seems likely, it opens the door to discrimination on all fronts- sex, gender expression, race, religion, anythin—so long as the First Amendment can be abused in the right way. Given the makeup of the Supreme Court, leaning further right even than it was in 2018 with the Masterpiece Cake Shop case, more discrimination and hate could become protected by posing as “religious freedom.”