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303 Creative Protects Those Who Hold It In Contempt

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“303 Creative held no particular favor toward Christians, as pundits have declared. This case demanded no partiality, exclusion, or disproportionate benefit. It merely demanded the very posture, purpose, and protection ensured by the First Amendment.”

–JOHN WESLEY REID

Those lamenting the Supreme Court’s recent decision in 303 Creative v. Elenis are freer today because of it.

Gay bakers, for example, can no longer be forced to fashion a cake saying “marriage is only between a man and a woman” at the risk of business depletion. Without the 303 Creative precedent, the gay cake designer’s only reprieve would be that Christians have no desire to target him and run him out of business like so many in the LGBT community have done to Christians.

All Americans should celebrate 303 Creative since all Americans are freer because of it.

Kristen Waggoner, CEO of Alliance Defending Freedom who defended Lorie Smith, the owner of 303 Creative, a graphic design firm, in her multi-year case against Colorado, stated,

“The government should no more censor Lorie for speaking consistent with her beliefs about marriage than it should punish an LGBT graphic designer for declining to criticize same-sex marriage. If we desire freedom for ourselves, we must defend it for others.”

Isn’t freedom great?

Yet many are bemoaning the very freedom they just inherited on the altar of a media-fueled deception of court-sanctioned discrimination. But in actuality, Lorie Smith has never refused to serve a customer for being gay, despite what much of the media, elected officials, and even people we’re supposed to trust like Justice Sonia Sotomayor have unmeritedly decried. More on that later.

The Opinion of the Court states, for the record, that both the petitioners and respondent parties are aware that Smith doesn’t refuse to serve people for being gay.

“The parties agree that Ms. Smith ‘will gladly create custom graphics and websites for gay, lesbian, or bisexual clients or for organizations run by gay, lesbian, or bisexual persons so long as the custom graphics and websites’ do not violate her beliefs. That is a condition, the parties acknowledge, Ms. Smith applies to ‘all customers.’”

With that clarification made, below is a short summary of what 303 Creative does and doesn’t do, followed by a more detailed analysis.

What It Means

The 303 Creative precedent affirms the right of a business owner to refuse to provide message-based services. The Christian may refuse to create a floral arrangement for a same-sex wedding, the gay baker may refuse to illustrate a cake criticizing same-sex marriage, and the Jewish graphic designer may refuse to create a pamphlet explaining that Jesus is the only way to Heaven.

What It Doesn’t Mean

The 303 Creative precedent does not permit discrimination based on identity. Despite the unmerited outcry of several influential liberals, this ruling does not permit a baker, for example, to refuse service to a gay couple simply because they’re gay. So, if you’re gay and you and your partner want a birthday cake, prom boutonniere, or travel blog — you got it. But you’re not guaranteed anything that expresses a value that violates the creator’s personal convictions. 

Let’s dig a little deeper:

The focal issue that the Supreme Court agreed to review in 303 Creative was this:

“Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.”

Nowhere in the above query is mentioned religion or LGBT. That’s because 303 Creative was not a religious freedom or gay rights case. In fact, in the Opinion of the Court, Justice Neil Gorsuch applauded the advancement of gay rights over the years. This case was not a gay rights case, and the ruling was not an anti-gay ruling. The constitutional value that the Court was assessing was not the Free Exercise Clause (religion), but rather the Free Speech Clause of the First Amendment.

Distinguishing civil rights from free speech overreach, Justice Gorsuch contrasted the good, healthy purposes of accommodation laws from how these laws have been abused, saying that accommodation laws

“have done much to secure the civil rights of all Americans. But in this particular case Colorado does not just seek to ensure the sale of goods or services on equal terms. It seeks to use its law to compel an individual to create speech she does not believe.”

Again, this isn’t about discriminating against a class, it’s about affirming individual freedom for everyone.

So, If 303 Creative is a Win for Everyone, Why So Much Opposition?

Mass naiveté is understandable when mass communication is so misleading — especially when it comes from those who are supposed to be the most trusted sources.

Take Justice Sotomayor, for example, who said, “Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class.”

This phrasing grievously mischaracterizes 303 Creative’s precedent, as if the ruling actually said that business owners can discriminate against people because they’re gay. In fact, as noted before, the majority went out of its way to affirm that their opinion does not allow that.

While it is no surprise that Sotomayor dissented in the case, her reasoning was alarmingly irrelevant. As Waggoner noted, the dissenting opinion “responded to a case that wasn’t before the Court.”

Sharing the same sentiment, Justice Gorsuch wrote,

“It is difficult to read the dissent and conclude we are looking at the same case. Much of it focuses on the evolution of public accommodations laws and the strides gay Americans have made towards securing equal justice under law. And, no doubt, there is much to applaud here. But none of this answers the question we face today: Can a State force someone who provides her own expressive services to abandon her conscience and speak its preferred message instead?”

Sotomayor’s dissent is lengthy and includes a variation of strawman arguments and appeals to emotion reflecting a defense of an ideology, not a judicial proceeding. This fabrication is dangerous and severely undermines the confidence that the American people should have in their chief guardians of the Constitution.

We mustn’t overlook the irony of accommodation laws being antithetically applied to sabotage the very equality they were meant to preserve…an ironic wrinkle that the Court has now ironed out.

303 Creative is a win for the masses across the ideological spectrum because freedom knows no ideology other than itself. Freedom is for everyone, and any hindrance to freedom for one community is a hindrance for all of them. As Thomas Paine put it,

“He that would make his own liberty secure, must guard even his enemy from oppression, for if he violates this duty, he establishes a precedent that will reach to himself.”

303 Creative held no particular favor toward Christians, as pundits have declared. This case demanded no partiality, exclusion, or disproportionate benefit. 303 Creative merely demanded the very posture, purpose, and protection ensured by the First Amendment. And that means it is a win for everyone — whether they recognize it or not.


Follow John on Twitter! @johnwesleyreid

Ready to dive deeper into the intersection of faith and policy? Head over to our Theology of Politics series page where we’ve published several long-form pieces that will help Christians navigate where their faith should direct them on political issues.

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