In their coverage of 303 Creative v. Elenis, the case concerning Colorado web designer Lorie Smith and her alleged right to deny certain services to gay couples, many right-wing media outlets have ignored the context of the case and how it fits into the larger goals of the anti-LGBTQ organization representing her. In Smith’s fight against Colorado’s anti-discrimination statute based on her claim that the act’s protection of sexual orientation violates her freedom of speech by supposedly forcing her to make wedding websites for same-sex couples, she is being represented by the Christian-identifying law firm Alliance Defending Freedom (ADF), an organization committed to decimating the rights of LGBTQ Americans under the guise of “religious liberties.”
Despite the narrative pushed by some conservative news outlets claiming that Smith is the victim of a political campaign — the Washington Times’ editorial board claimed the “LGBTQ left” had targeted 303 Creative because “they don’t believe tolerance should be a two-way street” — Smith was never even approached by a gay couple to make a wedding website. In fact, before Smith ever offered such a service, she, with the help of ADF, preemptively sued the state of Colorado, seeking an exemption from the state’s non-discrimination law that required her to provide services, however hypothetical, to both gay and straight customers.
Right-wing media have consistently framed the 303 Creative case as “about freedom of expression for all artists,” as conservative columnist David French wrote for The Atlantic, while continuing to deny the clear intent of the case and its role in ADF’s broader aim of eliminating protections for LGBTQ Americans in numerous sectors of public life.
On the December 5 edition of Fox News’ Outnumbered, co-host Emily Compagno claimed Smith’s case was unique because it did not involve “public accommodations” and that it did not involve “the question of monopoly of physical access.” Guest Martha MacCallum later reiterated the claim that the scope of the case was limited, saying there was “a difference between providing the service, I think there is, that is specifically about the marriage and the wedding, and someone walking into a restaurant saying ‘This is an open restaurant, I want to eat here.’”
On Newsmax’s The National Report, correspondent Christina Thompson also pushed the ADF’s argument that the case banked on creative control, saying there was “a difference between businesses that offer services and businesses that are artistic.”
The Federalist published an article arguing “progressives like to act like Christian (or Islamic or Jewish) opposition to same-sex marriage is some newfangled ruse cooked up by activists to allow them to put ‘no gays allowed’ signs in the shop windows” and insisted that Smith’s case, and the earlier Masterpiece Cakeshop case also argued by ADF, were not about denying “any customer because of an immutable characteristic or sexual preference or religious belief” but rather about refusing “to create a message that conflicted with sincere convictions.”
The Washington Examiner similarly emphasized that the case was “not [about] refusing the customer,” just “refusing the message,” while also absurdly claiming that “religion isn’t a protected status, while sexual orientation is.” (Title VII of the Civil Rights Act of 1964 “prohibits federal agencies from discriminating against employees or applicants for employment because of their religious beliefs in hiring, firing and other terms and conditions of employment.”)
These assertions all ignore the history of ADF, which has hidden behind the doctrine of religious liberty in an attempt to dismantle the separation of church and state. In its own words, ADF seeks to “change the culture,” primarily through lawsuits like 303 Creative v. Elenis that edge the precedent ever closer to a future where it is legal to discriminate against LGBTQ Americans. While the claim in the 303 Creative case rests on the assertion by Smith and ADF that requiring businesses to produce communication or creative products in relation to gay marriages is tantamount to “compelled speech,” the law merely requires that products produced by businesses be available to customers regardless of their sexual orientation, gender identity, or other protected characteristics.
303 Creative was one of multiple cases picked up by the organization in 2016 following the ruling in Obergefell v. Hodges, which extended marriage protections nationwide and which the ADF fought tooth-and-nail to stop. The aim of these cases has broadly been weakening non-discrimination ordinances protecting the rights of gay couples, but their ambitions go far beyond that.
This case fits into ADF’s larger goal of dismantling protections for LGBTQ people in employment, schooling, public facilities, and services that have nothing to do with free speech or creative control.
