White Christian privilege
White Christian privilege

An earthquake in the form of 303 Creative Designs v. Elinis shakes up Christendom.

Wednesday, harm has come to Baby Jesus from the United States Court of Appeals for the Tenth District in regards to 303 Creative v. Colorado. On July 26, 2021. The Court upheld a lower court summary judgment denying 303 Creative a license to discriminate.

Lorie Smith circa 2017

The owner of 303 Creative, Lorie Smith, will now embrace victimhood in perpetuity. The usual bigots are in terrible distress. These include Alliance Defending Freedom, National Organization for Marriage, a shitload of Red States as amici curiae and a host of others. Oh, and Defender of the Faith, Ed Whelan.

This case has been going on since 2016 and this is the third (and last) trip to the Tenth Circuit.

I wrote yesterday about white Christian privilege. In that instance it was the perceived entitlement to display anti-LGBTQ bigotry. And there is plenty of that with the intended inference of Sincerely Held Religious Belief™ acceptability.

Another form of Christian privilege is the insistence by the faithful that nondiscrimination laws apply only to other people. Go figure.

With the utmost devotion to the deity, Lorie Smith, a web designer, decided two things:

  1. She would not design wedding websites if the betrothed are of the same sex and;
  2. that she would posted a notice on her website to the effect that: “We don’t serve your kind here!”

Both of those actions are impermissible according to Colorado law. In the original case, ADF did the usual cut-and-paste which reads, in part:

“Apparently, ADF’s Jeremy D. Tedesco … [has] some special insight regarding what [his] god approves of.

1. Lorie Smith is the sole owner and operator of 303 Creative LLC, a company specializing in graphic and web design.
2. Lorie is also a Christian who believes that God has called her to use her talents and her company in a way that honors Him.
3. Because of her religious beliefs and her desire to affect the current cultural narrative regarding marriage that contradicts those beliefs, Lorie wants to use her talents and the expressive platform she has in 303 Creative to celebrate and promote God’s design for marriage as an institution between one man and one woman.
4. Lorie believes that God is calling her to promote and celebrate His design for marriage by designing and creating custom wedding websites for weddings between one man and one woman only.

Apparently, ADF’s Jeremy D. Tedesco, Samuel D. Green, Katherine L. Anderson — along with Lorie Smith — have some special insight regarding what their god approves of. Most Christians and a fair number of Christian clergy disagree with them.

Smith’s layers on the appeal included "Kristin K. Waggoner (Jonathan A. Scruggs and Katherine L. Anderson, Alliance Defending Freedom, Scottsdale, Arizona; David A. Cortman and John J. Bursch, Alliance Defending Freedom, Washington, DC, with her on the briefs), Alliance Defending Freedom, Scottsdale, Arizona, appearing for Plaintiffs-Appellants."

The issues before the District Court for the District of Colorado and the Tenth Circuit are explained by the Tenth Circuit as follows:

As to our jurisdiction, we hold that Appellants have standing to challenge CADA [Colorado Anti-Discrimination Act]. As to the merits, we hold that CADA satisfies strict scrutiny, and thus permissibly compels Appellants’ speech. We also hold that CADA is a neutral law of general applicability, and that it is not unconstitutionally vague or overbroad. Accordingly, exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s grant of summary judgment in favor of Colorado.

For irrational commentary, we turn to Brian S. Brown of National Organization for Marriage via email. Cue violins:

“Personally I think that “God designed” Brian S. Brown to be a McDonald’s crew chief.”

… last week a state of Colorado Court of Appeal panel ruled in a separate case that the state has the right to compel the speech of devout Christians to celebrate causes like same-sex ‘marriage’ that violate their deeply held religious beliefs.

Prominent legal analyst Ed Whelan called the Colorado ruling in 303 Creative vs. Elenis “bonkers.” We call it Colorado Crazy. 303 Creative is a graphic design company that desires to produce custom websites for couples getting married.

Brown is confused (imagine that). The United States Court of Appeals for the Tenth Circuit is most assuredly not “a state of Colorado Court of Appeal.” Furthermore, service doesn’t “celebrate” anything.

Brown continues with NOM boilerplate:

However, because the owner, Lorie Smith, is a devout Christian, she would not consider utilizing her design skills to celebrate same-sex ‘marriages’ because of her belief, based on the bible, that God designed marriage exclusively for heterosexual couples.

Personally I think that “God designed” Brian S. Brown to be a McDonald’s crew chief. “Want fries with that?” But I digress. The extent to which Brown actually gives a crap about this matter is in question. Per the usual:

NOM is on the front lines standing up for the rights of Lorie Smith, Jack Phillips and all people of faith who will not be deprived of their religious liberty rights to refuse to endorse, celebrate or participate in something that violates their religious beliefs – whether that be a same-sex ‘wedding,’ a gender “transition,” or any other anti-biblical or anti-scriptural act. Will you help us in this critical fight? Any donation you make today will be 100% matched, DOUBLING its impact.

ADF plans to appeal to the Supreme Court. The Court refused to hear a similar case of Barronelle Stutzman and Arlene’s Flowers and Gifts. Jack Phillips of Masterpiece Cakeshop only prevailed because a Colorado civil rights commission official made a nasty comment about religion which led the Court to decide that the commission was hostile to religion.

In fact, the Tenth Circuit addresses Masterpiece v. Colorado to determine if similar hostility exists in the current case. The state (as well as the Washington Supreme Court in the Stutzman matter) have learned a thing or two about what to avoid.

First Amendment expert, Professor Eugene Volokh, is of the opinion that ADF has a pretty good case before the Supreme Court on the basis of compelled speech.

Now before you attack the good professor, Eugene has been on the right side of LGBTQ rights more often than not. Volokh and Professor Dale Carpenter filed an amicus brief in favor of the state in the matter of Masterpiece Cakeshop v. Colorado.

Eugene Volokh’s amicus brief in favor of the web designer is a good read. That is, if you agree with me that we can learn the most from people we disagree with. Like me, Volokh is a non-observing Jew.

There might be a more practical issue. No gay couple ever asked 303 Creative to design a website for their wedding. It is a virtual certainty that now no gay couple ever will.

By David Cary Hart

Retired CEO. Formerly a W.E. Deming-trained quality-management consultant. Now just a cranky Jewish queer. Gay cis. He/Him/His.