How is 303 Creative LLC v. Elenis *any* different than Masterpiece Cakeshop v. Colorado Civil Rights Commission?
<p>I cannot see a single substantive difference between the two cases.</p>
<p>Why did this even need to come to the Supreme Court again?</p>

<p><a href="https://www.supremecourt.gov/opinions/17pdf/16-111_j4el.pdf" rel="nofollow noreferrer"><em>Masterpiece Cakeshop v. Colorado Civil Rights Commission</em></a>* Never decided the issue of compelled artistic speech on its merits. Inst ed it held that the baker, Phillips, did not receive a fair haring before the Commission, and that its decision could not stand. But they left for a future case the actual decision of then underlying issue.</p>
<p>The official 'SCOTUSBlog <a href="https://www.scotusblog.com/2022/02/justices-will-hear-free-speech-claim-from-website-designer-who-opposes-same-sex-marriage/" rel="nofollow noreferrer">wrote</a>:</p>
<blockquote>
<p>Nearly four years after the Supreme Court <strong>declined to decide</strong> whether compelling a Colorado baker to bake a cake for same-sex couples would violate his right to freedom of speech, the justices agreed to take up a similar question in another case from Colorado, this time involving a website designer. The justices’ decision to grant review in <em>303 Creative LLC v. Elenis</em> sets up yet another major ruling on the intersection between LGBTQ rights and religious beliefs. [<em>Emphasis in the Original</em>]</p>
</blockquote>
<p>In <em>Masterpiece Cakeshop</em> the court wrote in its  Syllabus:</p>
<blockquote>
<p>... Phillips too was entitled to a neutral and respectful
consideration of his claims in all the circumstances of the case.</p>
<p>That consideration was compromised, however, by the Commision’s treatment of Phillips’ case, which showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection. As the record shows, some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. No commissioners objected to the comments. Nor were they mentioned in the later state-court ruling or disavowed in the briefs filed here. The comments thus cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case.</p>
<p>Another indication of hostility is the different treatment of Phillips’ case and the cases of other bakers with objections to anti-gay messages who prevailed before the Commission. The Commission ruled against Phillips in part on the theory that any message on the requested wedding cake would be attributed to the customer, not to the baker. Yet the Division did not address this point in any of the cases involving requests for cakes depicting anti-gay marriage symbolism. The Division also considered that each bakery was willing to sell other products to the prospective customers, but the Commission found
Phillips’ willingness to do the same irrelevant.</p>
<p>...</p>
<p>For these reasons, the Commission’s treatment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint. The government, consistent with the Constitution’s guarantee of free exercise, cannot impose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes
judgment upon or presupposes the illegitimacy of religious beliefs and practices. <em>Church of Lukumi Babalu Aye, Inc. v. Hialeah</em>, 508 U. S. 520.</p>
</blockquote>
<p>In the Opinion, Justice Kennedy wrote:</p>
<blockquote>
<p>The case presents difficult questions as to the proper
reconciliation of at least two principles. The first is the
authority of a State and its governmental entities to protect the rights and dignity of gay persons who are, or wish
to be, married but who face discrimination when they seek goods or services. The second is the right of all persons to
exercise fundamental freedoms under the First Amendment, as applied to the States through the Fourteenth
Amendment.</p>
<p>The freedoms asserted here are both the freedom of
speech and the free exercise of religion. The free speech
aspect of this case is difficult, for few persons who have
seen a beautiful wedding cake might have thought of its
creation as an exercise of protected speech. This is an
instructive example, however, of the proposition that the
application of constitutional freedoms in new contexts can
deepen our understanding of their meaning.</p>
<p>...</p>
<p>[T]he delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach. That requirement, however, was not met here. When the Colorado Civil
Rights Commission considered this case, it did not do
so with the religious neutrality that the Constitution
requires.
Given all these considerations, it is proper to hold that
<strong>whatever the outcome of some future controversy</strong> involving facts similar to these, the Commission’s actions here
violated the Free Exercise Clause; and <strong>its order must be
set aside</strong>. [<em>Boldface added</em>]</p>
<p>...</p>
<p>However later cases raising these or similar concerns are
resolved in the future, for these reasons the rulings of the
Commission and of the state court that enforced the
Commission’s order must be invalidated.</p>
<p>The outcome of cases like this in other circumstances
<strong>must await further elaboration in the courts</strong>, all in the
context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere
religious beliefs, and without subjecting gay persons to
indignities when they seek goods and services in an open
market.  [<em>Boldface added</em>]</p>
</blockquote>

<p><em>Masterpiece</em> was a religious freedom case; <em>303 Creative</em> is a free-speech case.</p>
<p>In <em>Masterpiece</em>, the problem was that the Civil Rights Commission reached its ruling in a way that demonstrated hostility to the baker's religion.</p>
<p>Once SCOTUS highlighted the problem, the commission presumably cleaned up its act and stopped criticizing people's religions, but continued prohibiting them from discriminating against gay people. <em>303 Creative</em> asks whether a baker's right to free speech overrides Colorado's civil-rights laws.</p>
<p>That same question was raised in <em>Masterpiece</em> but was not resolved because the religious-rights violation was more clear-cut. The Court is now likely much better positioned to actually answer it.</p>

<p>In <a href="https://www.supremecourt.gov/opinions/17pdf/16-111_j4el.pdf" rel="nofollow noreferrer">Masterpiece Cakeshop v. Colorado Civil Rights Commission</a>, the court ruled in favor of the plantif because the government's decision &quot;showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection&quot;, and</p>
<blockquote>
<p>The government, consistent with the Constitution’s guarantee of free
exercise, cannot impose regulations that are hostile to the religious
beliefs of affected citizens and cannot act in a manner that passes
judgment upon or presupposes the illegitimacy of religious beliefs and
practices.</p>
</blockquote>
<p>The allegation <a href="https://www.supremecourt.gov/DocketPDF/21/21-476/193619/20210924115918275_USSC%20Petition%20for%20Writ%20of%20Certiorari.pdf" rel="nofollow noreferrer">in the present petition</a> is that the 10th District ruled that</p>
<blockquote>
<p>the government may, based on content and viewpoint, force Lorie to
convey messages that violate her religious beliefs and restrict her
from explaining her faith</p>
</blockquote>
<p>which is a completely different constitutional question. The previous ruling did not decide whether this particular application of anti-discrimination law was unconstitutional. The two questions asked are</p>
<blockquote>
<p>Whether applying a public-accommodation law to compel an artist to
speak or stay silent, contrary to the artist’s sincerely held
religious beliefs, violates the Free Speech or Free Exercise Clauses
of the First Amendment</p>
<p>Whether a public-accommodation law that authorizes secular but not
religious exemptions is generally applicable under Smith, and if so,
whether this Court should overrule Smith</p>
</blockquote>
<p>(The court limited the matter to the first question).</p>

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