There is a new ruling out of the United States Court of Appeals for the Tenth Circuit that could be headed for a major showdown in the Supreme Court. The decision in 303 Creative LLC v. Elenis could force a hitherto evasive Court to rule directly on the conflict between anti-discrimination laws and the religious clauses. I have previously written that I view these controversies as best addressed as free speech rather than free exercise cases. The Tenth Circuit decision reaffirms a growing conflict among the circuits and offers an especially strong case for the Court to consider such a major reframing of such conflicts.

The Court disappointed many when it found an off-ramp in the Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission. The case involved Charlie Craig and David Mullins who went to the Colorado cake shop of Jack Phillips to order a cake celebrating their earlier marriage in Massachusetts. Phillips declined on religious grounds. He is willing to sell pre-made cakes to anyone but not decorate a cake for a same-sex marriage.

Phillips was found in violation of the Colorado Anti-Discrimination Act prohibits businesses from discriminating, including based on sexual orientation. The law is fairly standard and provides: “It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.”

The Colorado Civil Rights Division referred the case to the state’s Civil Rights Commission, which ruled against Phillips. Phillips ultimately won in 2018 but the Supreme Court effectively punted the central issues. Rather than rule on the right to decline such jobs, Justice Anthony Kennedy wrote for a seven-justice majority that the Commission showed hostility to religion in the comments of Commissioners:

“[T]he Commission’s treatment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint. In view of these factors, the record here demonstrates that the Commission’s consideration of Phillips’ case was neither tolerant nor respectful of Phillips’ religious beliefs. …The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion.”

It was like Brown v. Board of Education being remanded over for a proper class certification hearing.

The Court could then have addressed the question in another case but elected to Arlene’s Flowers v. Washington in light of its decision. It then had yet another opportunity this term. Arlene’s Flowers v. State of Washington and Arlene’s Flowers v. Ingersoll was remanded. Stutzman the owner added a religious hostility claim after Masterpiece cakeshp but on June 6, 2019, the Washington Supreme Court unanimously ruled against Stutzman. Then the Supreme court denied certiorari in July 2021.

Now Masterpiece Cakeshop is coming back.  On June 15, 2021, a Colorado District Court ruled in Scardina v. Masterpiece Cakeshop that Phillips again violated the Colorado Anti-Discrimination Act. This as an openly manufactured test case.

The new case is also out of the 10th Circuit and involves the same law.  The Court explained:

“303 Creative is a for-profit, graphic and website design company; Ms. Smith is its founder and sole member-owner. Appellants are willing to work with all people regardless of sexual orientation. Appellants are also generally willing to create graphics or websites for lesbian, gay, bisexual, or transgender (“LGBT”) customers. Ms. Smith sincerely believes, however, that same-sex marriage conflicts with God’s will. Appellants do not yet offer wedding-related services but intend to do so in the future. Consistent with Ms. Smith’s religious beliefs, Appellants intend to offer wedding websites that celebrate opposite-sex marriages but intend to refuse to create similar websites that celebrate same-sex marriages. Appellants’ objection is based on the message of the specific website; Appellants will not create a website celebrating same-sex marriage regardless of whether the customer is the same-sex couple themselves, a heterosexual friend of the couple, or even a disinterested wedding planner requesting a mock-up. As part of the expansion, Appellants also intend to publish a statement explaining Ms. Smith’s religious objections (the “Proposed Statement”):

‘These same religious convictions that motivate me also prevent me from creating websites promoting and celebrating ideas or messages that violate my beliefs. So I will not be able to create websites for same-sex marriages or any other marriage that is not between one man and one woman. Doing that would compromise my Christian witness and tell a story  about marriage that contradicts God’s true story of marriage – the very story He is calling me to promote.’

Appellants have not yet offered wedding-related services, or published the Proposed Statement, because Appellants are unwilling to violate CADA.”

The Court notably found that the objection was based on the specific message sought through the site creation rather than the identity or sexual orientation of the customers. However it nevertheless held that she was in violation of Colorado’s anti-discrimination statute because she intended “to offer wedding websites that celebrate opposite-sex marriages but intend to refuse to create similar websites that celebrate same-sex marriages.”  Interestingly, the court found that her objection was based solely on the message/speech of the event, and not upon the sexual orientation of the customers:

Appellants’ objection is based on the message of the specific website; Appellants will not create a website celebrating same-sex marriage regardless of whether the customer is the same-sex couple themselves, a heterosexual friend of the couple, or even a disinterested wedding planner requesting a mock-up.

That creates a relatively “clean” avenue for the type of free speech approach that I and others have favored for years.

The Court relied on the law being neutral to uphold the conviction:

“We are satisfied that message-based refusals may be objectively defined and are not the type of subjective test that triggers the individualized exemption exception. We need not decide how CADA’s causation standard should apply to Appellants’ message-based refusal. See supra, III.B.1. We also reiterate that, on a more developed record, Appellants might show that Colorado enforces that standard in a way that discriminates against religion, violating the Free Exercise Clause. Yet, whatever issues may be presented in a future case, it is clear to us that CADA’s causation standard itself is qualitatively different from the broad, discretionary analyses presented in other individualized exemption cases.”

The ruling will also therefore give the justices a clean shot at Employment Division v. Smith (1990) in which the late Justice Antonin Scalia wrote that there was no violation of free exercise of religion because the Oregon law was neutral. Under that holding “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).”

In prior cases, there was ample evidence of a majority that would overturn Smith. There are now 5 or 6 justices who have indicated that they reject the premise and test in Smith.

Thus, we now have Masterpiece heading back toward the Court and a major ruling in the Tenth Circuit that is ready for such an appeal. The chances of a post-Masterpiece showdown now seems extremely high in the highest court.

Here is the case: 303Creative opinion