Tenth Circuit Rules Web Designer Must Create Site For Same-Sex Marriage

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


149 thoughts on “Tenth Circuit Rules Web Designer Must Create Site For Same-Sex Marriage”

  1. I can remember all the way back in the 60s some brave souls tried a religious defense in some marijuana cultivation cases. “Behold I have given you every fruit and herb bearing seed….: That’s Genesis 1:28 think. It’s on the FIRST PAGE in many formats.

    But no. The pretzel logicians always concocted some drivel to make the case turn out the way they wanted (that’s pretty much what “legal reasoning” in the higher courts adds up to, that stuff like in the book by Edward Levi they use in the universities is bunk–the first thing they do is decide how they want it to come and then they back-step from the conclusion to make it look good).

    I don’t see where the government gets the authority to control a plant that evolved before there were governments. Thin air? But hey, look up Wickard where the court said FDR’s USDA could order someone not to grow chicken feed on their own land to feed their own chickens!

    The tyrants have been out of control for years. Look up Morgan Hill where the 9th Circuit ruled you could be suspended from school for wearing a US flag t-shirt if the admin didn’t like it. With the precedent of the Iowa black arm band in place where the Supremes said the admin could not stop students from wearing a black arm band to protest the Vietnam war. C-Span had a 50-year anniversay touchdown dance fest with the original plaintiff present but no mention of Morgan Hill.

  2. The shoe on the other foot argument should be made. What would happen if the “I Love Donald Trump” fan club asked for a bake shop known to support radical left ideals to bake a big beautiful MAGA cake? Refuse? Take them to court. Make them bake the cake and make it all pretty. Turnabout is fair play if they want to play that game. But why?

    What the baker could have and perhaps did is kill them with kindness, wish them well (and mean it) and made a referral to an excellent baker who would make and decorate the cake.

  3. This issue is same side of the same coin……….stifle people so they don’t say what you don’t want to hear or force people to do things they don’t want to do.

  4. Should not the same logic (if such the word can be applied to the legal system) be applicable to entities such as Facebook, Google, Youtube, Paypal et al?

  5. Do a lousy job. Make sure it is full of leaks to allow cyber attacks and ransomware. Take a lot of billable time with it. Delay. Make them regret their choice.

    1. Yes, as a public official representing government this is patently racist and unconstitutional and nothing but crickets form the media. Or worse, support.

      1. It’s part of the Great Reset agenda. These cases directly attack the right to freely associate and the right to contract. If the state can compel you to enter into a transaction you would otherwise reject, or apply your skills in ways you would otherwise refuse, then for all practical purposes the state, not you, owns your skills and your business. The state effectively owns you.

  6. I have just one thing that I cannot figure out:

    When did statutes start prevailing over Constitutional provisions?? Or even require equal weight?? That’s first year law school stuff.
    A State statute prevailing or even given equal consideration to the EXPRESS Constitutional right to Freedom of Religion seems to be a very strained analysis. And certainly EXPRESS Constitutional rights would prevail OVER those INFERRED rights created by the Supreme Court, who cannot create a new Constitution.

  7. I think in this situation I would be tempted to create the site for them.

    They probably wouldn’t like it.

    Then the morons on the court could rule on artistic merit. That could keep them busier than figuring out what pornography was before finally throwing in the towel.

  8. The cake baker Philips, and everyone else similarly targeted, should show up to court wearing scarlet hoods. Instead of being forced to bear children, they are being forced to create a message they can’t bear, or else be destroyed.

    Activists, the media, Hollywood, Academia, K-12, and many big businesses have aligned to form their own Gilead, complete with totalitarian rules.

  9. I truly do not understand why these cases are not analyzed under a 13th Amendment standard. By forcing an individual to create a website, the CO authorities are forcing someone to work. That is involuntary servitude.

  10. I remember arguing in favor of gay marriage with some older relatives. “How would it affect you, personally, if a loving gay couple wed?”

    Then here came the intolerant Left Gestapo to show me I was wrong. The far Left is intolerant and punishes dissent.

    Don’t agree with racist CRT? Then the teachers will get your personal information and organize against you, personally.

    Voice any criticism of BLM on social media, at school, or at work, such as pointing out the obvious conclusion of anti-cop rhetoric on public safety? You will be punished.

    What the Left has taught me is that it doesn’t matter if you agree with any part of their premise. Don’t go along with them, because they will twist every issue into a totalitarian, abusive pogrom. This is how the Left drove many people like me far away, when we used to find common ground at times.

    1. There ain’t no common ground when it comes to anybody in the LBGTQ community not for me anyway never will be

  11. If you disagree with the Left, they will try to impoverish you, ruin you. They are intolerant of any opposing view. To the Left, “tolerance” means complying with their wishes and no one else’s.

    Leftist activists will take Masterpiece Cake Shop to court again, and again, and again, until they get a win. If he hadn’t received legal support, the baker would have been unable to fight back by now and ruined. It is harassment.

    The standard I think is most fair is that artists of any media should sell ready-made works to any buyer. However, no artist should be forced to create a custom work of art for any reason against their will. This is because art is creative expression of the artist, a form of speech. This is compelled speech.

    The Left would enslave artists to comply or be ruined, just like business owners, or students.

    Why does this paradigm appeal to anyone? It’s not kind or tolerant. What kind of person says you must celebrate that a biological man is a woman or else you will be impoverished? Who would eat a cake they forced a baker to make against his will?

  12. It’s about time we struck down these petty tyrannies of the Left. I’ll make whatever I please for whomever I please and I’ll like and endorse whomever I please. That’s America. Deal with it. These same-sexers only deserve tolerance not approval, endorsement or sacred cow status. Go down the street you infantile cry-bullies!

  13. Why do sexual minorities demand that we celebrate their life choices?

    They can anything that straight couples can do, yet they demand not only tolerance, but public endorsement as well.

    Carried to the its logical conclusion, the state can force me to declare (as an example): “Anal intercourse between men is good.”

    Forced compliance crosses the line between tolerance and tyranny.

    If Philips loses, America will lose.

    By the way, does hounding a man to financial ruin because of his beliefs make guys more popular?

    1. Monumentcolorado,

      “Why do sexual minorities demand that we celebrate their life choices?”

      They don’t do that. They are just demanding that the same benefits everyone else enjoys apply to them too. But there seems to be some weird belief that the equal application of the law to them is somehow MORE rights than everyone else.

      “Forced compliance crosses the line between tolerance and tyranny.”

      Not when one has to comply by the same rules everyone else is required to. Phillips wants special treatment simply because he has “deep beliefs” and to run a business open to the public which is subject to secular laws that are in conflict with is “deep beliefs” He chose to foist upon himself. It’s HIS burden he chose.

  14. Turley– “The decision in 303 Creative LLC v. Elenis could force a hitherto evasive Court ..”
    The Court has been evasive on a lot of things lately. Did they really want this job?

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