In ‘303 Creative,’ court rules that companies cannot be forced to violate their religious beliefs


Published July 3, 2023

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Jack Phillips is a soft-spoken man with a gentle demeanor, not a person you’d expect to be rude or churlish with anyone, much less his customers. As the owner and operator of Masterpiece Cakeshop in Colorado, Phillips stands out not only for his incredible custom artistic cakes but also for his devotion to his Christian faith. He has long been known as much for the cakes he would design as for the cakes he would not. He would not use his creative talents to custom design anything contrary to his deeply held beliefs — like stag party cakes, for example, and even Halloween cakes. He would — and did — serve all customers who came to his store for pre-made or baked products.

In 2012, two men entered Phillips’ store and asked for a custom cake. Phillips sat down with them and opened his sample book to give them some idea of his previous cake art. The men then noted that they wanted a cake to celebrate a same-sex wedding. As he had for customers who requested other cakes he did not create, he said simply, “I’m sorry, I don’t do those, but I can offer you any pre-made cake here in the store.” The entire exchange lasted only a few minutes.

Within hours, angry calls and threats to Phillips and his family began. Thereafter, the male couple filed a complaint with the Colorado Civil Rights Commission, which found that Phillips was in violation of the state’s anti-discrimination law (even though three other bakers had not been cited for refusing orders from customers who opposed same-sex marriage). The case made its way to the U.S. Supreme Court in a case called Masterpiece Cake Shop vs. Colorado Civil Rights Commission. The court ruled in a 7-2 decision in favor of Phillips, but on very narrow grounds — namely, that the Civil Rights Commission had acted in a prejudiced manner toward Phillips, and that hostility to religion is barred under the Free Exercise Clause. Sadly, that victory did not end the targeting of Phillips and his work. After he prevailed in his Supreme Court case, he was sued again, this time for declining to create a custom cake celebrating a gender transition.

303 Creative

Why is Jack Phillips being subjected to additional lawsuits, even after the Supreme Court has ruled in his favor? Because the court did not reach or address the issue of government-compelled speech in his case. The very narrow grounds used by the Supreme Court in that case gave a single-instance vindication to Jack Phillips, but it did not address the potential conflicts by a variety of additional wedding vendors, such as florists or wedding website designers.

That unanswered question led to the case that the Supreme Court decided June 30 — 303 Creative v. Elenis. 303 Creative is a graphic design and art studio founded by Colorado native Lorie Smith (“303” is the area code for Denver, where Smith resides).

Smith indicated she would work with everyone in her community, including those who identify as LGBT. She decides whether she can custom design a project based on the content being requested, not the persons requesting it. For example, if a gay couple had asked Smith to create a website promoting animal rescue, she would have happily done so, since her projects are based on the message, as long as that message is consistent with the core of who she is. Conversely, if a straight couple had asked her to design and website and graphics that had asked her to promote polyamory or polygamy, she would have refused that work under the same guiding principle: the message being spoken through the website design, not the messenger requesting it.

Agreed-upon facts

Smith wanted to expand her offerings to create custom websites celebrating marriage, but there was one problem — a problem that had not yet been resolved by the Supreme Court. Smith’s deeply held religious beliefs would allow her to create websites only for those marriages that reflected her religious beliefs — that is, marriage as a life-long union between one man and one woman. And the state of Colorado had made clear that would not be tolerated. The Colorado law was preemptively censoring Lorie, preventing her from even beginning the wedding portion of her business.

Using a legal mechanism called a “pre-enforcement action,” Smith challenged the Colorado law. Both the federal district court and the U.S. Court of Appeals for the 10th Circuit declined to protect Lorie’s free speech rights, with the circuit court going so far as to say that the state has the right to force Smith to express messages that contradict her core beliefs.

The U.S. Supreme Court, agreed to hear 303 Creative’s case. As part of the process in providing information to the court, both sides — Lorie Smith and the state of Colorado — agreed to “stipulations.” In the legal context, “stipulations” are factual matters related to the proceedings that are entered as part of the official court record. Both parties concede in advance to the court that the facts that are stipulated are not in dispute.

The stipulations in 303 Creative v. Elenis are critical to understanding the case. In fact, in the 6-3 opinion for the majority, Justice Neil Gorsuch refers to the agreed-upon stipulations 17 times. The most critical stipulation was spelled out by Gorsuch: “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.’ Ms. Smith stresses, too, that she has not and will not create expressions that defy any of her beliefs for any customer, whether that involves encouraging violence, demeaning another person or promoting views inconsistent with her religious commitments.” And it’s notable that the dissent, written by Justice Sonia Sotomayor, never mentions the stipulations at all.

The Constitution prevails

Justice Gorsuch’s opinion goes on to acknowledge the role in what are called “public accommodation” laws, which, generally speaking, are laws that protect consumers from discrimination in the marketplace. Yet, the court recognized that “no public accommodations law is immune from the demands of the Constitution.” When a public accommodations law collides with First Amendment, it is the Constitution that prevails.

In deciding 303 Creative v. Elenis in favor of Lorie Smith, the court concluded that the government can’t force Americans to say things they don’t believe. It does not mean that businesses may generally discriminate against those with whom they disagree. Most “goods and services” are not expressive in nature — for example, Jack Phillips did not claim the right not to sell a ready-made cake to a gay couple.

In 2015, when the Obergefell v. Hodges decision redefined civil marriage from “one man and one woman” to “two people,” the Supreme Court also acknowledged that the traditional meaning of marriage had “long has been held — and continues to be held — in good faith by reasonable and sincere people here and throughout the world.” The ruling in 303 Creative upholds the implicit promise made in Obergefell — that “reasonable and sincere people” may not be forced by the government to say something that their faith tells them is not true.


Mary Hallan FioRito is an attorney and the Cardinal Francis George Fellow at the Ethics and Public Policy Center.


EPPC Cardinal Francis George Fellow Mary Hallan FioRito is an attorney, public speaker, and radio show and podcast host. Her areas of expertise are human life issues, primarily abortion law and policy, post-abortion aftermath, and the Consistent Ethic of Life. She holds a degree in English Literature from Loyola University Chicago and a Juris Doctor degree from Loyola University School of Law. She is licensed to practice law in the State of Illinois.

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