J. Scott Applewhite/AP Photo
American Civil Liberties Union activists demonstrate in front of the Supreme Court in Washington, June 4, 2018.
The Respect for Marriage Act’s enhanced statutory protections for the right to marry are a legislative response to concerns generated by the Supreme Court’s Dobbs ruling about the future of LGBTQ constitutional rights. Although Dobbs repeatedly promised that its elimination of constitutional abortion protections “unequivocally” didn’t “cast doubt on” pro-LGBTQ constitutional decisions, its conservative constitutionalism and disregard for past rulings made it risky to rely on assurances that LGBTQ marriages and families are safe.
In 303 Creative v. Elenis, slated for oral arguments next week, the Court has a chance to redeem its word by protecting LGBTQ equality again. If bets are right, however, and the case yields new First Amendment free-speech exemptions to Colorado’s public accommodations law, the Court will squander the chance.
By appearances, 303 Creative doesn’t involve LGBTQ constitutional rights. Technically, the case centers around claims by a religious conservative graphic artist and website designer to First Amendment speech protections against Colorado’s public accommodations law. This law includes a ban on public-facing businesses discriminating against would-be customers based on their sexual orientation. Many people fear a ruling vindicating these free-speech claims will precipitate constitutional cutbacks to other measures outlawing anti-LGBTQ discrimination, and even to civil rights protections prohibiting discrimination based on categories like race, ethnicity, and sex.
Lawyers for Lorie Smith, the religious graphic artist and website designer who brought the case for herself and her business, have presented the Court various free-speech arguments. Linking these positions is the contention that when Colorado’s public accommodations law requires Smith and her business not to discriminate against marrying same-sex couples, it violates her and her business’s free-speech rights.
Smith, insisting she’s an artist, acknowledges that she’s no secular creative. Her for-hire business services are devotional. They express Smith’s faith in a higher power she serves with her talents in graphic art and website design. When Smith does design work involving marriages, she wants it to square with and advance “what she believes is the beauty of God’s design for marriage,” which she sees as between a man and a woman.
Back in the 2018 Masterpiece Cakeshop case, lawyers representing a religious cake-maker and his business launched similar free-speech attacks on the same Colorado law. Those attacks likewise sought a First Amendment artistic-freedom right that would have entitled the cake-maker to defy Colorado’s rules requiring him and his business to treat all customers alike, regardless of sexual orientation.
To many people’s surprise, Masterpiece Cakeshop ruled Colorado officials violated the cake-maker’s First Amendment religious freedom rights when they discriminated against him during state proceedings for infringing the state’s public accommodations rules. The Court’s decision considered the cake-maker’s free-speech arguments, but ultimately sidelined them, though not before expressing doubts about their merits.
These doubts partly reflected the Court’s commonsense intuition that cake-making isn’t speech, but food preparation. The intuition may land differently in 303 Creative. For many, Smith’s work in graphic art and website design feels more speech-like than cake-baking.
Nevertheless, Masterpiece Cakeshop’s teachings indicate Smith’s free-speech claims should lose, a loss that would preserve conservative justices’ promises in Dobbs.
In 303 Creative v. Elenis, the Court has a chance to redeem its word by protecting LGBTQ equality.
One reason Justice Anthony Kennedy’s majority opinion in Masterpiece Cakeshop didn’t endorse the cake-maker’s free-speech claims was its respect for the history and tradition of public accommodations laws. Affirming these laws—regularly imprinted with race-based civil rights struggles and their equality-minded legacies—the ruling characterized Colorado’s version as “unexceptional” economic regulation on public-facing businesses safeguarding civic, including economic, equality—which the First Amendment’s speech protections hadn’t operated to block like the cake-maker said they should.
Despite ruling for the cake-maker, Kennedy’s opinion in Masterpiece Cakeshop recommitted the Court to a wide understanding of civic equality it associated with LGBTQ constitutional rights. Consistent with this understanding, the Court’s pro-LGBTQ constitutional decisions implicated both a discrete set of individual rights protections, including marriage rights, and a broader horizon of LGBTQ people’s full and equal freedom to American living like everyone else.
This expansive constitutional outlook powered Masterpiece Cakeshop’s view of Colorado’s antidiscrimination law and the cake-maker’s free-speech challenges to it. Respectfully, Masterpiece Cakeshop allowed there once might have been “some force” to the cake-maker’s contention that custom cake-making for same-sex marriages was a kind of constitutionally protected speech. Back in 2012, the Court explained, when the cake-maker refused a gay couple a custom wedding cake, Colorado didn’t “recognize the validity of gay marriages.” Nor, more dramatically, had the Court by then issued its landmark Windsor and Obergefell decisions recognizing that same-sex marriages deserve constitutional protections. In that legal context, the Court suggested, there might have been a plausible—though not necessarily a winning—argument that custom wedding cake-making for same-sex nuptials implied “an expression of support for their validity” contrary to the cake-maker’s “sincerely held religious beliefs.”
By 2018, when Masterpiece Cakeshop was decided, however, those conditions—and that context—had changed. Windsor and Obergefell altered “background … legal principles.” Their changes to the constitutional landscape shifted the grounds for the Court’s assessment of free-speech claims like those involved in Masterpiece Cakeshop—and 303 Creative.
Going forward, Masterpiece Cakeshop’s reasoning implied, the constitutionally founded vision of LGBTQ civic equality would inform the meaning under the First Amendment of businesses selling or not selling LGBTQ people goods or services in the public marketplace. Whatever the craft, skill, or artistry in creating a custom wedding cake, selling those cakes to marrying couples who were equals in the law’s eyes was like Freud’s cigar: The sales were just sales—economic transactions or business trades—that happen to involve custom wedding cake-making, nothing else or more. Providing these business services in an open market involved no constitutionally recognizable message of religious, moral, or even secular endorsement for any particular kind of marriage. These constitutional logics fully govern Smith’s business dealings and sales of her service-product, custom wedding website design and construction.
Justice Clarence Thomas filed a concurring opinion in Masterpiece Cakeshop objecting to this line of thinking and sympathizing with the cake-maker’s free-speech claims. The concurrence, joined by Justice Neil Gorsuch, blasted the implication emerging from Kennedy’s opinion that the cake-maker’s free-speech rights turned on the Court’s pro-LGBTQ constitutional rights rulings. “[T]he fact that this Court has … decided Obergefell,” it insisted, doesn’t “somehow diminish [the cake-maker’s] right to free speech.”
Clarifying Kennedy’s opinion’s logics, the Thomas concurrence tipped its own hand. Its affinities for the cake-maker’s free-speech rights traveled with skepticism about Obergefell, which surfaced at one point as the concurrence described same-sex weddings as “weddings,” as though unreal. Thomas has repeatedly questioned Obergefell since. His Dobbs concurrence openly called for its—and other LGBTQ constitutional rights’—repudiation.
Thomas, then, may favor a First Amendment ruling crediting Smith’s claims in 303 Creative, which would speed Obergefell’s demise from another direction. It’s easy to imagine a Thomas opinion promising “individuals the [First Amendment free-speech] right to disagree about Obergefell and the morality of same-sex marriage” that suggests those same individuals should be allowed to translate that disagreement into policy action restoring marriage’s traditional definition. Obergefell’s elimination is key to that achievement.
Matters are trickier for the conservative justices who endorsed Dobbs’s assurances that its anti-abortion conclusions leave existing pro-LGBTQ constitutional rights decisions undisturbed. Facing Kennedy’s constitutionally based vision of LGBTQ civic equality in Masterpiece Cakeshop as a baseline and precedent, what will they do? They, too, could endorse Smith’s First Amendment free-speech claims, but at the price of shrinking and marring the government’s ability to realize LGBTQ civic equality. In doing so, they’d also flout Dobbs’s promises to preserve the existing landscape of pro-LGBTQ constitutional rights decisions.
It’s time to recognize that 303 Creative’s problems may not be those associated with Dobbs’s return of abortion rights to the political realm. What Dobbs does to reproductive choice is—in theory anyway—amenable to political solutions restoring its legal protections. The Respect for Marriage Act repeats the basic pattern, politically protecting the right to marry as a hedge against Obergefell’s possible doom. The marriage act, it should be said, also includes a “conscience” measure indicating that “[n]othing in this Act … shall be construed to diminish or abrogate a religious liberty or conscience protection otherwise available to an individual or organization under the Constitution of the United States or Federal law.”
No political fix will be available to overcome a Court opinion in 303 Creative eliminating some pro-LGBTQ antidiscrimination protections in the name of First Amendment free-speech rights. To meet that challenge—if that’s what it comes to, despite Masterpiece Cakeshop’s teachings and Dobbs’s promises—may require a deep rethinking of the battleground and game plan for achieving pro-LGBTQ and intersecting forms of civic equality in politics and the courts.
Much as anything else they do, next week’s oral arguments in 303 Creative may offer glimpses into the progressive equality work that lies ahead.
The author’s work on Masterpiece Cakeshop is available here.
