Supreme Court Case 303 Creative Is About Power, Not Religious Liberty

The U.S. Supreme Court went after reproductive autonomy in Dobbs v. Jackson Women's Health Organization, and recent oral arguments signal that affirmative action could be next on the chopping block. But there's another landmark case being heard this month that also deserves our attention for its potential to not only roll back anti-discrimination protections for millions of LGBTQ+ Americans but also gut civil rights laws nationwide.

We have to advocate louder, have tough conversations with our communities and challenge people's ideas and assumptions--not the least of which is the privileged assumption that the court is the best path to protecting our civil rights.

On Dec. 5, the court will hear oral arguments in 303 Creative LLC v. Elenis to decide whether a Colorado web designer, Lorie Smith, has a free speech right to refuse to make websites for same-sex couples and post a "straights only" policy on her website. If that sounds familiar, it's because five years ago, the court heard Masterpiece Cakeshop v. Colorado, a case that attempted to use freedom of religion, rather than speech, to achieve the same end: to permit a Colorado baker to refuse to make a wedding cake for a same-sex couple in violation of Colorado's Anti-Discrimination Act.

Both cases represent attempts to use the court's power to constitutionalize a particular version of Christianity as part of a larger effort to establish Christian nationalism in the United States. As a civil rights attorney, the court's mere acceptance of Lorie Smith's case is alarming. The case asks for constitutional protection to discriminate against LGBTQ+ individuals. However, a discrimination case based on freedom of speech has much broader--and much more dangerous--consequences than one based on religious liberty, such as Masterpiece Cakeshop. This is because religious liberty is usually conceptualized as a right balanced against other rights, whereas free speech is usually thought of as a fundamental right that can rarely be curtailed.

303 Creative has the potential to snowball into one of the most sweeping rollbacks of fundamental civil rights protections in American history. If the Supreme Court accepts Smith's arguments, it will essentially greenlight discrimination against entire groups of people that a business owner may find objectionable and prevent the government from intervening. A dance instructor could turn away a young Muslim girl who wears hijab because she doesn't want to be seen as endorsing wearing a headscarf. A florist could refuse to provide flowers for a Catholic baby's baptism because they object to the baptism of infants. A chef could refuse service to a queer Muslim couple because they disagree with their faith and disapprove of same-sex marriage. The permutations are endless but at the core of each is the same fundamental harm: rejection and indignity on the exclusionary whim of another. A whim that the court may well constitutionalize with this case. That's why Muslim Advocates--along with the Columbia Law School's Law, Rights and Religion Project and dozens of other civil rights organizations--submitted an amicus brief to the Supreme Court outlining the disastrous domino effect this case could have.

In the Supreme Court's last session, the barrier between church and state was further eroded and the court, for the first time, took away a right: the fundamental right to reproductive autonomy. In the current term, the court seems ready to read a requirement of "colorblindness" into the Fourteenth Amendment to further strip voting rights protections, to limit tribal sovereignty and to recognize a constitutional right to discriminate. We now must lean on other avenues to prevent further civil rights rollbacks from the court and secure future civil rights victories.

We have to advocate louder, have tough conversations with our communities and challenge people's ideas and assumptions--not the least of which is the privileged assumption that the court is the best path to protecting our civil rights. At the end of the day, the only real authority in our democracy is the people. We must join those who have been organizing on these issues for decades--those who have always seen the court for what it is and understood that the power to protect ourselves is found in collectivity and solidarity, not a reactionary judiciary. Together we can work toward combating Christian nationalism and continue striving for a more inclusive America--with or without the Supreme Court of the United States.