Before expanding her graphic design business to serve couples seeking wedding websites, Lorie Smith sought an injunction to “prevent the State from forcing her to create websites celebrating marriages that defy her belief that marriage should be reserved to unions between one man and one woman.” Alliance Defending Freedom (ADA), the Christian law firm Miss Smith was represented by, defined the case as a “pre-enforcement challenge… challenging the law before it was used to punish Lorie.” The law concerned was the Colorado Anti-Discrimination Act (CADA), which “prohibits all ‘public accommodations’ from denying ‘the full and equal enjoyment’ of its goods and services to any customer based on his race, creed, disability, sexual orientation, or other statutorily enumerated trait.”

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   Miss Smith asserted that the CADA violates the Free Speech Clause of the First Amendment by compelling her to create websites “celebrating marriages she does not endorse.’’ She argued this constitutional right to refuse to create same-sex wedding websites due to her belief that such websites would send a “message’’ for her business that “contradicts biblical truth.’’ Justice Sotomayor contested this claim in her dissent, arguing that the “act of discrimination has never constituted protected expression under the First Amendment.” Sotomayor continued that although the law does not compel businesses to sell any particular goods or services, “if a business chooses to profit from the public market…the state may ensure that groups historically marked for second-class status are not denied goods or services on equal terms.”

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   Smith cited the Masterpiece Cakeshop case as credible evidence that the CADA may compel her to create websites for same-sex marriages. This case involved a Colorado bakery owned by the devout Christian and baker Jack Philips, who in 2012 told the same-sex couple Charlie Craig and David Mullins that he would not create a wedding cake due to his “religious opposition to same-sex marriages.” Like Miss Smith, Mr Philips argued that compelling him to create the cake to “express a message with which he disagreed,” would “violate his right to free speech,” and “his right to the free exercise of religion.” When Craig and Mullins were interviewed by USA Today, Mullins was asked to address others asserting First Amendment objections to serving same-sex couples due to religious belief. Mullins stated “freedom of religion is essential in our country, but you cannot practice [sic] your faith in a way that excludes others from public life.” He continued that policies like Masterpiece Cakeshop “hurt people,” making “LGBTQ people feel like second-class citizens in their own country.” After being denied service, Craig says he “broke down”.

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   The Supreme Court holding in 303 Creative that the First Amendment prohibits “Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees” is a “victory for business owners who oppose same-sex marriage for religious reasons,” but there is concern about this unprecedented exception to nondiscrimination laws. Despite the court ruling being described as a “highly fact-specific decision” and a narrow exception, there are concerns about the precedent the case has set.

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   The Supreme Court holding in 303 Creative that the First Amendment prohibits “Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees” is a “victory for business owners who oppose same-sex marriage for religious reasons,” but there is concern about this unprecedented exception to nondiscrimination laws. Despite the court ruling being described as a “highly fact-specific decision” and a narrow exception, there are concerns about the precedent the case has set.

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   Sarah Warebelow, the Human Rights Campaign’s Legal Director, expressed to Time the potential that 303 Creative will “inspire discriminatory behavior” and Rutgers law professor, Katie Eyer, noted it has “emboldened much broader claims in the lower courts and among others who might wish to discriminate.” Mary Bonauto, Senior Director of Civil Rights and Legal Strategies at GLBTQ Legal Advocates & Defenders, affirmed that it is crucial that the ruling “remains limited to the highly specific and customised... services the Court found in this case, and is not seen as a green light to assert a free speech defense... in other areas of law.’’

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   In Justice Sotomayor’s dissent, she found the ruling “heartbreaking,” especially in the context of the “backlash to the movement for liberty and equality for gender and sexual minorities.” The American Civil Liberties Union (ACLU), is currently tracking 492 anti-LGBTQ bills in the U.S. It observes that in the past few years, states have “advanced a record number of bills that attack LGBTQ rights, especially transgender youth.” Justice Sotomayor explains this “reactionary exclusion” as familiar, comparing it to public establishments claiming “based on sincere religious beliefs, constitutional rights to discriminate,’’ when the “civil rights and women’s right’s movements sought equality in public life.”

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   Justice Kennedy made similar comments on the consequences of exceptions to public accommodations laws in the Masterpiece Cakeshop, explaining that if people providing goods and services for marriages and weddings began refusing to do so for gay persons, it would result in a “community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.”

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   The Christian baker in Masterpiece Cakeshop and Lorie Smith in the 303 Creative case were both represented by the Christian law firm Alliance Defending Freedom (ADF). ADF was founded in 1994 by a group of leading Christian evangelical leaders, one of which was James Dobson, the founder of the anti LGBTQ Focus on the Family organisation. The causes of ADF include opposition to abortion and same-sex marriage, and social conservatives hail the group as “champions of religious freedom.” They were described by Southern Poverty Law Center (SPLC) as a “designated hate group” in 2016, due to having “supported the recriminalisation of sexual acts between consenting LGBTQ adults in the U.S and criminalization abroad,” and having defended state-sanctioned sterilization of trans people abroad. The ADF discredits the Southern Poverty Law Center, but numerous other advocacy groups have criticised its actions, with GLAAD describing ADF as a “danger to every American who values their freedoms.” ADF have further been reported to have been behind the 15 week abortion ban in Mississippi which prompted a legal case that eventually resulted in Roe v Wade, which granted the right to abortion, being overturned. Emerson Hodges, research analyst at the SPLC, wrote for The Guardian that the ADF is attempting to “undo LGBTQ social and legislative progress… under the guise of religious liberty, and religious freedom. What that means, though, is the religious liberty to discriminate and the religious freedom to invalidate LGBTQ individuals.”

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   Hodges says ‘’just about every anti-LGBT legislation that you’ve seen probably in the past decade was probably copied or paraphrased off of a model legislation built by Alliance Defending Freedom.’’ Despite high profile criticism of ADF, NBC reported that from 2011 to 2021, contributions to the ADF more than doubled, from over $34.5 million to more that $76 million, as well as 11 other nonprofit groups identified as anti-LGBTQ hate groups by the SPLC taking in $110 million in contributions during the financial year ending in 2020.

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   Time has reported a number of cases which may further weaken protections of LGBTQ people from anti-discrimination laws, as attorneys are looking to decipher whether 303 Creative allows other businesses or entities to refuse services to people based on the decision. Although Time affirmed that the Court explicitly said the 303 Creative ruling does “not apply to employment discrimination,” they cite the potential of cases such as Braidwood Management Inc. v. Becarra setting a new precedent. The exception to the CADA is therefore not an isolated threat to LGBTQ protections. The CADA represents a history of civil rights progress that ensures equal access, inclusion, and dignity to communities historically marked for a second-class status. The 303 Creative case being decided on relatively narrow terms does not lessen its gravity – it is a wider symptom of groups such as ADF attempting to undo LGBTQ social and legislative progress, weakening LGBTQ rights. Despite the value of both the freedom of speech and nondiscrimination laws, it is crucial to ensure that claims of protection under the First Amendment do not enable the protection to discriminate.