Nominally, today’s oral arguments at the Supreme Court pertained to 303 Creative in Colorado, not Masterpiece Cakeshop and Jack Phillips. Clearly, however, at least Justice Neil Gorsuch has decided to connect some dots in the hope of resolving the tension between anti-discrimination regulations and the First Amendment protections of religious expression and speech.

With Phillips’ case likely making its way again to the Supreme Court, Gorsuch clearly has tired of this debate:

GORSUCH: "Mr. Phillips did go through a reeducation training program…did he not?

Attorney: "It was not a reeducation program…it was a process to make sure he was familiar with Colorado law."

GORSUCH: "Someone might be excused for calling that a reeducation program." pic.twitter.com/kGrbZobyVU

— Townhall.com (@townhallcom) December 5, 2022

To point out how outside the lane Gorsuch’s comment was, first let’s look at the New York Times’ curtain-raiser on the event today for 303 Creative v Elenis. It never even mentions Phillips or Masterpiece Cakeshop by name, despite the parallels between the cases and and the fact that the same state keeps forcing this issue. Instead, it just makes a generic reference to a “Colorado baker”:

The Supreme Court will hear arguments on Monday over whether a graphic designer in Colorado has a First Amendment right to refuse to create websites celebrating same-sex weddings based on her Christian faith despite a state law that forbids discrimination based on sexual orientation.

The case, a sequel to one from 2018 involving a Colorado baker that failed to yield a definitive ruling, is likely to settle the question of whether businesses open to the public and engaged in expression can refuse to provide services to potential customers based on their religious or other convictions.

The case concerns Lorie Smith, who owns a design company that says it serves gay customers but intends to limit a proposed wedding-related service to celebrations of heterosexual unions. She argued that requiring her to provide those services to gay and lesbian couples violates her right to free speech.

“If a client who identifies as gay asked her to design graphics for his animal rescue shelter or to promote an organization serving children with disabilities, Smith would happily do so,” Ms. Smith’s lawyers told the justices in a brief. “But Smith will decline any request — no matter who makes it — to create content that contradicts the truths of the Bible, demeans or disparages someone, promotes atheism or gambling, endorses the taking of unborn life, incites violence, or promotes a concept of marriage that is not solely the union of one man and one woman.”

Gorsuch clearly thinks that the linkage between the cases are more significant. The point here seems to be that this is less about preventing discrimination and more about the state of Colorado forcing businesses to adopt a certain ideology to remain open. Having offended the ideological agenda of the state of Colorado, Phillips was forced to undergo “re-education,” as Gorsuch put it, a term much more connected to tyrannical communist regimes in the 20th century, such as China, Russia, Cambodia, Vietnam, and others.

But does this even serve any legitimate state interest in anti-discrimination? Justice Samuel Alito decided to frame this in terms of a historical state interest in racial discrimination:

Justice Alito: "Do you think it's fair to equate opposition to same-sex marriage with opposition to interracial marriage?"

Colorado Solicitor General: "Yes, in how the law applies." pic.twitter.com/xqYOSangjm

— Greg Price (@greg_price11) December 5, 2022

This is a curious argument, and not necessarily a bad one for Colorado. On one hand, both state and federal governments have expressed through legislation a compelling state interest in anti-discrimination in both race and sexual orientation. Colorado argues here that the state is approaching both in a consistent manner, ie, they would sanction bakers and other artists for refusing to work on an interracial wedding just the same as they are doing for same-sex marriages.

The difference, though, is that religious doctrines on marriage being limited to the traditional form are both consistent and widespread. There may be some fringe groups that oppose interracial marriage on supposed doctrinal grounds, but those would not likely survive judicial scrutiny. That’s clearly not true in the case of same-sex marriage, and Colorado’s answer here that the state has to treat both identically is fatuous.

Justice Amy Coney Barrett seems skeptical too, especially while the state argues the exact opposite in terms of religious discrimination:

Barrett: Can a designer decline to serve a Catholic club because they disagree w/ their views on marriage? SG: Yes it's not status based discr. Bar: But the designer can't decline to do a SSM design? SG: Yes because SSM is inextricably intertwined with status (& religion isn't).

— Roger Severino (@RogerSeverino_) December 5, 2022

Say what? Does that mean businesses can refuse to offer service to, say, Muslims and Jews on the basis of their religion? Hindus and Buddhists? Atheists? This makes no sense at all.

It does demonstrate, though, that public accommodation law should restrict itself to access rather than messaging. If businesses refused service to LGBT customers (or those involved in interracial marriage) altogether, that would be an issue under current public accommodation laws. This isn’t an access issue, however, but a participation issue and a forced-messaging issue of the kind the Supreme Court tried to settle in a series of cases at the end of the 2017-18 term: Janus, NIFLA, and of course Masterpiece Cakeshop. 

The problem is that states like Colorado keep refusing to accept that as an answer when they can work around it (or think they can) to impose ideological compliance. It’s likely going to take a very explicit and deliberate ruling in 303 Creative to put an end to these forced-messaging cases, and this is the first term in which a five-vote majority may be prepared to deliver it.

It’s often a fool’s errand to predict an outcome based on the Socratic method of questioning at oral arguments. With that caveat in mind, the general consensus appears to be that the court is likely splitting on a 5-3 basis, and John Roberts will be a wild card. We could have guessed that even prior to today’s events, of course.