Right-wing activists in the United States are already gearing up for the next big legal fight over LGBTQ2S+ equality. Following the June ruling in favour of a Christian website designer in 303 Creative LLC v. Elenis, conservative legal groups are teeing up several cases that could reshape the U.S. court system and gut decades of anti-discrimination laws protecting queer and trans people. But civil rights advocates say the U.S. Supreme Court did not provide a clear road map for how the 303 Creative decision would pertain to other issues relating to LGBTQ2S+ equality, leaving several as-yet-unanswered open questions hanging in the balance. While advocacy groups have held that last month’s ruling is narrow and idiosyncratic, based on the unique facts of the 303 Creative case, the reality is that courts across the country will be debating its implications for several years to come.
“As much as we are going to try to predict what the impact of Creative 303 is, it was written in a way that there’s a lot of uncertainty in terms of how courts are going to apply it,” says Beth Littrell, senior supervising attorney at the Southern Poverty Law Center. “That makes predicting the outcomes of other similar cases really difficult to do. It leaves the responsibility on various courts to apply their own understanding of the reasoning, and that’s a dangerous environment to create when it comes to encouraging discrimination.”
Sweet Cakes by Melissa—a repeat of 303 Creative?
The same day that the Supreme Court handed down its decision in 303 Creative, justices remanded the long-gestating Sweet Cakes by Melissa v. Oregon Bureau of Labor and Industries back to a lower court for reconsideration in light of the recent ruling. Sweet Cakes by Melissa, the Oregon bakery that lends the case its name, was originally fined $135,000 in 2015 for refusing to bake a cake for a lesbian commitment ceremony, but the amount was reduced to $30,000 due to the Supreme Court’s intervention. Following its 2018 decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court ordered the Oregon Appeals Court to rehear the bakery’s case in light of its narrow ruling in favour of Christian baker Jack Phillips. While appeals judges found that previous courts had demonstrated bias against its owners’ religious views, a 2022 decision still held that the business had violated Oregon’s anti-discrimination laws.
Although Oregon judges will now be tasked with deciding whether Sweet Cakes by Melissa has the First Amendment right to refuse service to LGBTQ2S+ clients, sources say the case might not parallel the 303 Creative decision as well as right-wing activists might hope. “There’s a whole lot of tests here: when we’re talking about a product or service that may fall within the rule of 303 Creative, the first thing is it has to be really customized and expressive,” says Mary Bonauto, senior director of civil rights and legal strategies at GLBTQ Legal Advocates and Defenders (GLAD). “It’s not simply that a person imagines that the way they bake a cake or style hair is expressive. If it is, in fact, so highly customized and expressive, it has to be really clear that it is understood by the public that this is the provider’s message and not the message of the recipient. Think about a birthday cake: nobody’s thinking that the person who wrote that on the cake is wishing them a happy birthday.”
Should lower courts apply the logic of 303 Creative to Sweet Cakes by Melissa’s refusal to serve same-sex nuptials, advocates say the bakery’s claims may fall outside the Supreme Court ruling’s scope. The case arose from a 2013 incident in which Rachel Bowman-Cryer visited the bakery for a cake tasting and was told by its co-owner, Aaron Klein, that the business doesn’t “do same-sex weddings” after telling him that the nuptials were to involve two brides. Sweet Cakes by Melissa had not created a customized design for the couple in the same way that Lorie Smith, the website designer at the centre of 303 Creative, claimed that she intended to do for couples who sought out her services. Klein, in contrast, denied service to the Bowman-Cryers immediately after learning of the couple’s sexual orientation. The refusal, advocates say, was based solely on who the customers were, not the message conveyed by the cake itself. “They don’t want to associate with something,” Littrell says, “which is different than they don’t want to be compelled to say something.”
Masterpiece Cakeshop: yet more 303 Creative fallout?
The right to refuse customers based upon their identity is central to a second case that is likely to continue to be argued in the courts: a second incident involving Masterpiece Cakeshop, this time for refusing to serve a trans woman. In 2017, Phillips declined to fulfill an order from Autumn Scardina, a local attorney, who called the bakery to bake a pink-and-blue cake celebrating the anniversary of her transition. Two years following that refusal, the 2nd Judicial District Court in Denver fined Phillips $500—the maximum penalty—and denied that the incident centred on “compelled speech,” as Phillips had claimed. In his ruling, Judge A. Bruce Jones noted that the bakery owner testified in court that he didn’t believe an individual could determine their gender for themselves and that he did not wish to uplift “somebody who thinks that they can.” The Colorado Court of Appeals upheld Jones’s decision earlier this year after Phillips fought to overturn the verdict, but he and his attorneys—the right-wing legal consortium Alliance Defending Freedom (ADF), which also represented Smith—are likely to continue appealing. The dispute may ultimately end up being decided by the Supreme Court, as could the Sweet Cakes by Melissa case.
Phillips, much like the Oregon bakery, would struggle to make his arguments fit within the confines of the 303 Creative ruling, according to Littrell. “It was a blue interior cake with a pink frosting,” she says. “It had no expressive element to it, other than the objection to it being used in celebration of a trans person’s transition. That seems to be the clearest example of ‘No Gays Allowed.’” One element that will make the case difficult for Phillips’s attorneys to argue, Littrell adds, is that there was no actual message attached to the cake; he was essentially objecting to the colours of the design, which would not appear to fall within the bounds of compelled speech.
Fitzgerald and Chelsey Nelson Photography: cases of so-called “religious liberty”
But many elements make it extremely difficult to determine where the Supreme Court is headed from here, among them being the fact that judges have yet to rule as to whether they believe that religion is a compelling factor in refusing to serve LGBTQ2S+ people. The original decision in Masterpiece Cakeshop was decided upon procedural claims, and even the 303 Creative case tiptoed around Smith’s Christian beliefs. A handful of pending cases will attempt to force the issue: Fitzgerald v. Roncalli High School, in which a Catholic high school fired a lesbian teacher because she was married to a woman; and Chelsey Nelson Photography v. Louisville-Jefferson County Metro Government, in which a photographer is fighting to keep a disclaimer on her website that she doesn’t accept same-sex couples as clients. In each, right-wing legal groups have already signalled that they fully intend to use 303 Creative as a stepping stone toward a blanket ruling in favour of so-called “religious liberty.” Just days after the ruling in 303 Creative, the Becket Fund for Religious Liberty and ADF, respectively, filed supplementary briefs citing the decision on behalf of plaintiffs.
The potentially rocky road ahead indicates why it was so perilous for the Supreme Court to begin treading down this path to begin with in 303 Creative, according to Shannon Minter, legal director of the National Center for Lesbian Rights. “This basic framework around anti-discrimination laws and the First Amendment has been in place for 60-plus years,” he says. “It’s a big deal for the court to make such a significant change. In some ways, it feels not hugely significant because the circumstances are so unusual. So that makes it seem like: how many businesses are going to be like that?” But nonetheless, Minter believes the principle “that there could ever be a circumstance where you don’t have to comply with an anti-discrimination law” represents a “very radical shift” for the Supreme Court. “That’s why [303 Creative] is a blank slate,” Minter says, “because we just don’t yet know what lower courts are going to write on it or what the Supreme Court itself will do if and when [those cases] come back up.”
Christine Geiger and Dianne Hensley: an era defined by mass confusion
It remains to be seen whether courts will choose to apply 303 Creative in its narrowest or broadest legal sense or how long it will take for another court to weigh in on related cases, given that many of these disputes take years, if not a decade, to adjudicate. If LGBTQ2S+ legal advocates worry that the lack of clarity provided by the Supreme Court will result in wildly varying outcomes in different jurisdictions across the country, we’re already seeing this in real-time. Last month, Michigan salon owner Christine Geiger made international headlines after declaring that she would no longer serve trans and non-binary clients, and a Texas justice of the peace, Dianne Hensley, cited the 303 Creative decision in her longtime fight to not to perform same-sex weddings. The Texas Supreme Court has already agreed to take up Hensley’s plea, and the bench is nothing if not a friendly ear: it just so happens to be one of America’s most conservative judicial bodies. Littrell says that cases like these could be the beginning of a reality where rights will be based on an LGBTQ2+ person’s geographical location. “To the extent that that happens, there’ll be places where the same action is either legal or illegal,” she says. “Where you live will define how much freedom you have.”
This is precisely the reality that Justice Sonia Sotomayor warned about in a blistering dissent to the 303 Creative ruling. While the majority decision left many of the biggest questions posed by the case to be resolved by later disputes, she warned that allowing anti-LGBTQ2S+ discrimination was a door which, once opened, could not be closed. “Time and again, businesses and other commercial entities have claimed constitutional rights to discriminate,” Sotomayor wrote. “And time and again, this Court has courageously stood up to those claims—until today. Today, the Court shrinks.” She hypothesized that the Supreme Court’s decision could, even as it appears to not offer a blanket licence to discriminate, set a precedent allowing a Mississippi funeral home, for instance, to refuse burial services to a widower grieving the loss of his same-sex partner.
Although many have attempted to claim over the past month that the Supreme Court’s ruling in 303 Creative is a slippery slope to a certain outcome, what Sotomayor’s dissent indicates, according to legal scholars, is that no one knows what is coming next or how it will affect the LGBTQ2S+ community. Andrew A. Ortiz, legal services project staff attorney with the Transgender Law Center, says the “mass confusion” resulting from 303 Creative has been a feature of the Supreme Court over the past few years, especially in the overturning of abortion rights in Roe v. Wade. “They’ve been issuing opinions that are essentially lawless and don’t adhere to precedent,” he says. “This comes without being clear about where to draw the line and what’s permitted. As somebody who works in an organization that fields inquiries from people across the country about terrible treatments in different situations when they are protected by the law, we see what happens when folks who want to discriminate are emboldened by situations like this. They’ll take whatever they can get and run with it.”