On December 5, oral arguments for 303 Creative v. Elenis, framed by several outlets as the “latest clash of religion and gay rights,” began before the Supreme Court. The so-called sequel to Masterpiece Cakeshop v. Colorado Civil Rights Commission will revisit the question of businesses’ right to refuse services for LGBTQ weddings, which right-wing media claim is protected by the First Amendment and the principle of religious liberty more broadly.
But although right-wing media demonized the state of Colorado in the cases of Masterpiece and 303 Creative, Florida governor Ron DeSantis was lauded by the same outlets for wielding state authority to crack down on Disney after the company spoke out against the state’s “Don’t Say Gay” legislation. Some dissatisfied Republicans and even DeSantis’ own constituents say the move was inconsistent with historically conservative values of small government.
DeSantis’ retaliation reflects a growing trend on the right to move away from “consensus conservatism” and embrace government power — as long as that power is wielded against historically marginalized groups, as revealed by the right-wing media response to 303 Creative.
303 Creative v. Elenis is centered on Lorie Smith, a graphic designer in Colorado who wants to create wedding announcement websites. However, her idea of marriage only encapsulates heterosexual people, and she calls it “God's true story of marriage.” Smith wants to include a disclaimer on her own website to convey this, but it defies the Colorado Anti-Discrimination Act to refuse services based on a number of factors, including sexual orientation. Smith is being represented in court by the Alliance Defending Freedom, a known anti-LGBTQ hate group that also worked on the Masterpiece case.
This case addresses the same law Jack Phillips contested in Masterpiece Cakeshop v. Colorado Civil Rights Commission, where Phillips refused to make a custom cake for a gay wedding. The 2018 case raised a question over if the state law qualified as “compelled speech,” forcing Phillips to communicate an idea that went against his religious beliefs and thus violating his free speech rights.
The Supreme Court found that the state of Colorado was openly hostile toward Phillips and his beliefs, violating the free exercise clause, but the court did not address the intersection of speech, religious liberty, and anti-discrimination legislation. Smith’s case is expected to answer the lingering inquiry.
A narrative of persecution
Right-wing media is using 303 Creative to perpetuate a narrative of an imagined Christian persecution.
Days after oral arguments began, Blaze Media pundit Allie Beth Stuckey said in her Relatable podcast, “The activists who are in the government, they are using their power to crush the speech and the expression of the beliefs of Christians.”
Earlier this year, the Heritage Foundation’s Daily Signal said, “The states of Colorado and Washington have so far found a way to subjugate the First Amendment rights of those proprietors to the desire of individuals seeking a particular wedding product or service from a particular vendor.”
And in February, Daily Wire pundit Matt Walsh claimed the state of Colorado is issuing a campaign “to seek out any Christian business owners in their state and punish them.”
303 Creative, however, is a preemptive case where Smith has not yet turned anyone away, as no gay couples have approached her seeking services, but is seeking the ability to do so. As such, she has not yet faced punitive action.
But for all this talk about states persecuting business owners for their beliefs, right-wing media changes its tune when the government acts to punish businesses for allying with LGBTQ people.
Rallying around retribution
Earlier this year, Florida Governor Ron DeSantis cracked down on Disney for speaking up against the “Don’t Say Gay” legislation by dismantling the Reedy Creek Improvement District that gave Disney some governmental autonomy over roughly 25,000 acres in the state of Florida.
While the state of Colorado has been disparaged for enforcing anti-discrimination on private enterprises, conservatives celebrated DeSantis’ open retaliation against a private enterprise for speaking out against discrimination.
In a March episode of his self-titled show, Charlie Kirk waxed on about how Ron DeSantis is a paragon of courage.
“It’s not that he’s just standing up to the mob, it’s not that this person is just standing up to the most powerful forces both in the media, in the culture space, in the movie making space, it’s that he has a good end. It’s that he is fighting for something that is virtuous, that is beautiful,” Kirk said.
In April, Stuckey dedicated an entire episode of her Relatable podcast to DeSantis’s feud with Disney, where she called Ron DeSantis “our boy” and later declared, “I want a GOP that’s going to go to war. … We want someone who is going to fight on our behalf,” and encouraged more conservative legislators to be like him.
“I was thinking about a way to describe Ron DeSantis the other day, and this is how I would describe his — just like his win after win after win: He goes out of his way to do the right thing,” Stuckey said. “I hope that there are a hundred more Ron DeSantises.”
In December, Fox & Friends host Brian Kilmeade celebrated DeSantis’ retaliation against Disney, saying former CEO Bob Chapek was one of many “paying the price for caving to woke policies.”
The same day, Caitlyn Jenner appeared on Fox News’ America Reports to say “Disney went woke on us here and it was destroying the country.”
303 Creative is painted as not only an issue of religious liberty, but a test of free speech rights as well. A number of ADF members have appeared on conservative podcasts in defense of these cases to assert as much.
Appearing on The Christian Outlook in September, ADF senior counsel Jake Warner said of 303 Creative, “Really what’s at stake in this case is the right of every American to say what they believe without fear of government punishment.”
ADF attorney Kellie Fiedorek appeared in The Daily Signal’s podcast in late October.
“What protects our free society is that ability to freely speak…and not to have to worry about what the government message is and what they want,” Fiedorek said.
Conservative justices on the Supreme Court first broadened the political influence of corporations such as Disney not even a decade and a half ago. Moreover, the Supreme Court has extended free speech to corporations as it has with individuals since the 1970s.
And yet, when Florida moved to dissolve the Reedy Creek Improvement District, Walsh celebrated, saying “Punish Disney. Take revenge. Burn it down and salt the Earth.”