Balancing Religious Liberty With LGBTQ Rights: The 303 Creative LLC v. Elenis Case

Jan 14th, 2023 | By | Category: Featured Issues, Politics & Current Events

The mission of Issues in Perspective is to provide thoughtful, historical and biblically-centered perspectives on current ethical and cultural issues.

In 2018, the US Supreme Court ruled, in what is now known as the Masterpiece Cakeshop case, that Jack Phillips, a Colorado baker who had declined to make custom cakes for gay weddings, had been treated unfairly by members of the Colorado Civil Rights Commission, who had made comments hostile to religion.  Phillips had pursued his claims based on his rights to the free exercise of religion and the freedom of speech in the First Amendment.  The US Supreme Court handed down a limited decision based on religious issues.  It did not rule on the freedom of speech claim that Philips had sought.

303 Creative LLC v. Elenis was recently argued before the United States Supreme Court.  Its focus is the conflict between LGBT rights in public accommodations and First Amendment to the United States Constitution.  Lorie Smith is a Colorado website designer, running her business as 303 Creative, LLC, who wanted to move into making wedding announcement websites. Smith has consistently argued that it is against her Christian faith to make sites for non-heterosexual marriages. She planned to post a notice on her business website to alert users that she would not be willing to serve members of the LGBTQ community, and, instead, would refer members of the gay community to other potential designers that could provide services to them.  Before posting the notice, Smith discovered that such a notice would violate the Colorado anti-discrimination state laws that were amended in 2008, which prevent public businesses from discriminating against gay people as well as making statements to that effect.  Smith, represented by the Alliance Defending Freedom, sued Colorado in 2016 in the United States District Court for the District of Colorado, seeking to block enforcement of the anti-discrimination law. The district court waited for the result of the 2018 Supreme Court case Masterpiece Cakeshop v. Colorado Civil Rights Commission, which dealt with the same anti-discrimination law. As Masterpiece was ruled on narrow procedural grounds, the district court ruled against Smith in 2019. At that time, Colorado had not investigated Smith and there was no evidence that she had engaged in discrimination.

Smith appealed to the United States Court of Appeals for the Tenth Circuit, which upheld the district court decision in a 2–1 ruling. In the majority ruling, the Tenth Circuit held the anti-discrimination law satisfied strict scrutiny under the First Amendment to the United States Constitution. Chief Judge Timothy Tymkovich dissented in the Tenth’s decision, writing “the majority takes the remarkable — and novel — stance that the government may force Ms. Smith to produce messages that violate her conscience.” Smith filed a petition for a writ of certiorari, which the Supreme Court granted in February 2022. While the petition asked that Employment Division v. Smith be overruled, the Supreme Court limited the case:   Smith had asked the US Supreme Court to consider her case based on her rights under the free exercise of religion clause and her freedom of speech rights.  The Court, however, agreed to decide only “whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.”  As the Wall Street Journal editorially observed: “Ms. Smith only wants to sell websites.  Unlike physical public accommodations, such as hotels and restaurants, there is no captive market on the internet.  Coloradans can choose from countless different website designers, most of who would happily serve gay weddings.”

In our Postmodern, Post-Christian, pluralistic society, how should we think about this case?  Tish Harrison Warren writes that “Pluralism is not the same as relativism — we don’t have to pretend that there is no right or wrong or that beliefs don’t matter. It is instead a commitment to form a society where individuals and groups who hold profoundly different and mutually opposed beliefs are welcome at the table of public life. It is rooted in love of neighbor and asks us to extend the same freedoms to others that we ourselves want to enjoy . . . Millions of Americans have irreconcilable views of sex and marriage, and this is unlikely to change any time soon. The historic teaching of the Christian faith is that holy matrimony is between a man and a woman. The Roman Catholic Church still holds to this definition, as does Eastern Orthodoxy, the majority of Anglican churches worldwide and most Protestant denominations in the United States and elsewhere. A majority of Muslim and Jewish communities around the world hold a similar definition as well.”



Critics of Ms. Smith claim that what she is arguing is no different than bigoted whites refusing to serve blacks in restaurants or on buses or in hotels.  But as Warren correctly observes, “Claims of religious liberty were undeniably used as an excuse for racial discrimination. If the analogy holds between racial discrimination and declining to provide services for a gay wedding, then there is no debate to be had . . . However, the right analogy is crucial here, and correct distinctions are critical. In order to justify racial violence and oppression, white people in America and Europe essentially invented a novel theology, baptizing white supremacy. It was racism in search of an ethic. Sexual ethics, by contrast, are named and addressed in religious scriptures in specific terms. Unlike white supremacy, religious teachings regarding sex, including prohibitions on extramarital and premarital sex, pornography, lust and same-sex sexual activity have been part of the Christian faith from its earliest days. This is not an aberrant view rooted in bigotry but a sincere belief that flows from ancient texts and teaching shared by believers all over the world.”



Warren goes on:  “We need the law to act as a scalpel, not a sledgehammer. Gay people must be protected from discrimination in secular employment, housing and health care . . . We also need to ensure that religious people are not compelled to participate in an event or voice approval of a marriage they object to and that they can form churches, schools and other ministries in line with their beliefs. Churches ought not look to the government to enforce their views of morality. At the same time, those who celebrate same-sex marriages must leave room for people who have a different vision of sexuality to work and live according to their beliefs.”  Though what the courts decide on these issues is important, the courts alone cannot teach us to be good neighbors when there are deep and profound differences.  We must not demonize or seek to dominate those with whom we disagree. We must learn to live together and wade into complex social issues with love, compassion and grace.

Jesus taught us “to love your enemies and pray for those who persecute you, so that you may be son of your Father who is in heaven.  For He makes His sun rise on the evil and on the good, and sends rain on the just and on the unjust.”  [Matthew 6:44-46 ESV]  Government will not solve this.  The courts will not solve this.  We who name the name of Christ must insist in this democratic-republic that our views on marriage and sexuality be protected under the free exercise clause and the freedom of speech clause of the First Amendment.  That is an immense privilege of citizenship.  But we must also not advocate discrimination and oppression against those who choose differently.  The Gospel is the solution.  Jesus can transform lives, attitudes and behavior.  How we treat those with whom we disagree is the mark of the Christian.

See Tish Harrison Warren, “Why Pluralism Matters” in the New York Times (4 December 2022); the Wikipedia article on the case; Wall Street Journal editorial (5 December 2022) and the New York Times (5 December 2022).

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