The Supreme Court of the United States and a Kosher Bakery in New Jersey are facilitating uncomfortable conversations about freedom of speech
Examining 303 Creative v Elenis in the context of the West Orange Bake Shop dispute.
Hi! It’s me. It’s been a while since I’ve put a disclaimer note at the top of a piece, it’s sort of a strange thing to do for an op-ed newsletter because it’s basically an opinion on my opinion, but this week it feels necessary. We are going to be having a discussion (because, yes, I do view Horse of a Different Colour as a discussion with my readers) about the recent SCOTUS decision on the ability to refuse services to and in support of the LGBTQ+ community on the basis that it violates the First Amendment. There are different lenses through which we can look at the situations that will be discussed below which include LGBTQ+ rights, freedom of speech, and freedom of religion, any of which can impact the conclusions drawn. I’m going to do my best to speak dispassionately on the topic and not to make value judgments on either side. This does not mean that I don’t personally have an opinion on where the line between “right” and “wrong” should be drawn on these issues, it just means that this isn’t a week where I will be openly and actively sharing that opinion. I feel that the best thing I can do today is present the information and my legal analysis of it in as straightforward a manner as possible and allow you to draw your own conclusions and make your own judgments. Questions of freedom of speech and religious freedom are difficult for me as a religious person and member of a minority who has struggled to decide where to draw my own lines as to if, when, how, and how much religious edicts will play a role in my decisions and stances. Coming from that place, I am operating today under the assumption that neither side in the disputes I will discuss is acting maliciously or out to cause pain and embarrassment to anyone else. I completely respect anyone who is made uncomfortable by the lack of moral stance I will be taking on this issue today. As always, you are more than welcome to stop reading now, skip this week, and I’ll see you next week. You are also more than welcome to comment your thoughts below, reach out to me personally by replying to this email, or leave a comment or DM me on Instagram (@horseofadifferent_colour) or Threads. I am always open to engaging with my readers on topics I write about, because very often what appears on paper is merely the tip of the iceberg of my thinking on a subject.
In 2018, a Colorado Baker had a partial win on appeal to the Supreme Court of the United States in a decision that made headlines after he refused to bake a cake for a gay wedding on the basis that doing so was a violation of his Christian faith. The SCOTUS ruling in Masterpiece Cakeshop v Colorado Civil Rights Commission focused not so much on the substantive issues of whether one could reasonably argue that it was a violation of religious freedom to be compelled to fill the order and more on aspects of procedural unfairness that had hampered the lower court decisions. While Masterpiece Cakeshop walked out of the courtroom with a personal win 5 yeas ago, the SCOTUS was yet to make a substantive ruling on using a religious freedom argument in this context.
On June 30, 2023, the SCOTUS released their decision in 303 Creative LLC et al v Elenis et al (“303 Creative”). The 303 Creative case was essentially a pre-emotive challenge that centred on whether Ms. Smith, a web designer, could be compelled to create wedding websites for LGBTQ+ couples under Colorado’s Anti-Discrimination Act. The SCOTUS granted Ms. Smith the injunction she sought, preventing the State from requiring her to create websites that contradict her professed religious belief that marriage should only be the celebration of a union between one man and one woman. Similar to the circumstances in the Masterpiece Cakeshop decision, which dealt with the same law, Ms. Smith was willing to work with members of the LGBTQ+ community to build websites for other purposes. The decision was largely focused on what can be considered speech and where the distinction is between the speech of an individual and providing a public service. The Court upheld the decision of the Tenth Circuit that Ms. Smith’s websites are considered to be pure speech that is protected by the First Amendment. Relying on the precedent set in West Virginia Board of Education v Barnette, Hurley v Irish-American Gay, Lesbian and Bisexual Group of Boston, and Boy Scouts of America v Dale, the SCOTUS rules that State governments can impermissibly compel speech in violation of the First Amendment when they force speakers to accept a message with which they disagreed, and that Colorado was doing that here with Ms. Smith. The Court acknowledged that public accommodations, which protect individuals from being refused service based on their race, religion, sexual orientation, gender identity, etc. are vital to realizing the goals of civil rights, these laws may also not be so broad as to compel speech or in other ways violate the dictates of the Constitution. This decision is, all things considered, unsurprising, not only because of the current composition of the SCOTUS, but also because of the long history of SCOTUS decisions protecting the freedom of Americans to even some of their most unpopular opinions without fear of government interference.
There are many lenses through which this decision could be regarded, some of which may most easily be discussed through the examination of a dispute that appeared in Jewish news sources around the same time as the 303 Creative decision was released.
On June 6, Congregation B’nai Israel, a Conservative Synagogue in Millburn, New Jersey placed an order for rainbow decorated cupcakes and cookies without rainbow decorations, at West Orange Bake Shop, a local kosher bakery. The bakery, which had filled a similar order the previous year, initially accepted the orders, canceled both orders for cupcakes within 24 hours, but proceeded to provide the cookies. Yitzy Mittel, the co-owner of the bakery explained that he had found it unnerving to provide the Pride-themed baked goods the previous year because he feels that it is contrary to his understanding of Jewish law. The situation has been a divisive one in the Jewish community.
Legally, the bakery is within its rights to decline the order on the basis that it violates the owner’s freedom of speech and freedom from being compelled to speak. This was established in 2018 and confirmed in 303 Creative.
But with these issues the debate is often not resolved by a SCOTUS ruling. Ms. Smith in 303 Creative presents a situation that we are accustomed to seeing - one where there appear to be two diametrically opposed sides. The dispute between Congregation B’nai Israel and West Orange Bake Shop adds interesting nuance to these freedom of speech debates.
First, there is the community aspect. Both sides are institutions in the Jewish community. Part of the struggle that arises between them is how they are interpreting Jewish texts and laws. One of the features of Judaism which, in my mind, makes it so wonderful, is that religious practice encourages debate on how to interpret what is written in religious text and how it is applied to life. There are no “right” answers, and different communities and individuals will and have come to different conclusions as to the ways they will practice. What this means is that you can have a congregation that wants to celebrate Pride and one that doesn’t, with neither being necessarily incorrect. When this intersects with the law, as the SCOTUS has recently confirmed, it creates a situation where one group cannot compel the other to adopt or promote its interpretation of religious texts.
Second, there is the question of harm. While the point of contention with West Orange Bake Shop was around celebrating Pride, it does not touch on the questions of public accommodation and civil rights that are engaged in 303 Creative. The issue was not about denying access to kosher baked goods for members of the LGBTQ+ community. While members of the LGBTQ+ may well suffer ancillary harm from the lack of support for Pride demonstrated by West Orange Bake Shop, the facts at hand fit themselves cleanly into a freedom of speech analysis.
In legal debates, it is generally not a strong argument, when an individual is denied a service, to say they could seek it elsewhere. That’s not the point. But practically, it is something that is important to keep in mind when trying to balance how we will socially adopt and deal with situations like those discussed. In the 303 Creative decision, the court noted that while in some sense, Ms. Smith’s is offering a service that no one else can provide because she has a unique voice, on another level, so does everyone. There are a myriad of other website designers that couples could turn to for their wedding websites. Similarly, after the order was canceled by West Orange Bake Shop, Congregation B’nai Israel was able to have it filled by another West Orange kosher bakery. This point was raised by Mittel, who took into account that there were other kosher bakeries happy to make rainbow cupcakes for Pride when he canceled the order.
Freedom of speech disputes, more often than not, take us to uncomfortable places. Something to keep in mind when thinking about these questions is what dangers befall us when we begin drawing ideological lines on whose freedom of speech is permitted.