[June 30, 2023 — Bakersfield, California] The June 30, 2023, United States Supreme Court decision affirming the right of web designer Lorie Smith to refuse to create websites for same-sex weddings has reinforced and solidified the October 2022 victory in the Tastries Bakery lawsuit, won by Thomas More Society attorneys.

Smith, owner and designer of 303 Creative LLC, challenged Colorado’s Anti-Discrimination Act, whose accommodation and communication clauses prohibited her from designing custom wedding websites if she refuses to create same-sex wedding websites and prohibited her from publicizing that she would not create them. To avoid prosecution, Smith challenged the Act preemptively but was forbidden by both a Colorado district court and the United States Court of Appeals for the Tenth Circuit from exercising her vocation according to her Christian beliefs.

In a similar case, cake designer and Thomas More Society client Cathy Miller, proprietor of Tastries Bakery in Bakersfield, California, was hauled into court — not once, but twice — by the California Department of Fair Employment and Housing (now the California Civil Rights Department) for declining to design a custom wedding cake celebrating the same-sex marriage of two women. Miller’s freedom to exercise her sincere religious beliefs through her culinary craft was affirmed by a California Superior Court, despite aggressive attacks and litigation backed by the full weight of California’s bureaucratic apparatus.

Religious Liberty Law Turned into a Tool for Persecutors

“There’s a certain irony here,” observed Charles LiMandri, Thomas More Society Special Counsel and partner at LiMandri & Jonna LLP, “that laws intended to protect individuals from religious discrimination were used to discriminate against both Cathy Miller and Lorie Smith for their sincerely held religious beliefs. We are pleased that the High Court has upheld the First Amendment rights of Ms. Smith, allowing artisans like her and Cathy Miller to ply their trade according to their deeply held religious beliefs.”

The deciding factor in both cases is the legal concept of “strict scrutiny.” Under strict scrutiny, to compel speech, whether religious or not, the government must show that doing so is the only way — that is, no other means is possible — to achieve a governmental interest of the highest order.

In Tastries, the Hon. J. Eric Bradshaw of the Superior Court of California in Kern County, decided for Miller, concluding that the Department of Fair Employment and Housing’s enforcement action sought to compel Miller and Tastries to express support for same-sex marriage, or be silent. “No compelling state interest justifies such a result under strict scrutiny,” wrote Judge Bradshaw.

Is California a Cult Compound?

Judge Bradshaw noted the inconsistency in California’s alleged respect for Miller’s sincere religious beliefs while trying to force her to either violate her beliefs or stop selling wedding cakes. The Department of Fair Employment and Housing proposed that Tastries could either sell all its goods and services to all customers, cease to offer wedding cakes for sale to anyone, or have Miller and those of her employees that shared her religious objections to same-sex marriage “step aside” and allow her “willing” employees to manage the process.

Smith faced an almost identical situation in Colorado — to make wedding websites for any and all types of unions or make none. As sole operator and only staff person at 303 Creative, employees were not part of the equation.

Paul Jonna, Thomas More Society Special Counsel and partner at LiMandri & Jonna LLP, added: “We are optimistic that the ruling in 303 Creative will protect all creative professionals involved in the wedding industry, including Cathy Miller. The Supreme Court’s ruling makes abundantly clear that there is room in our great county for people of all views on marriage.”

The State Can’t Silence Dissent

Justice Neil Gorsuch authored the majority opinion in the High Court’s 6-3 decision. Justice Gorsuch rejected Colorado’s goal of “excis[ing] certain ideas or viewpoints from the public dialogue” as illegitimate and rejected Colorado’s argument that there was no other means of ensuring that same-sex couples have access to the full marketplace. “In some sense, of course, [Lorie Smith’s] voice is unique; so is everyone’s. But that hardly means a State may coopt an individual’s voice for its own purposes… Were the rule otherwise, the better the artist, the finer the writer, the more unique his talent, the more easily his voice could be conscripted to disseminate the government’s preferred messages. That would not respect the First Amendment; more nearly, it would spell its demise.”

Read the Supreme Court of the United States decision in 303 Creative LLC v. Elenis, handed down on June 30, 2023, here.

Read the amicus curiae brief submitted by Thomas More Society Special Counsel and LiMandri & Jonna LLP Senior Associate Jeffrey Trissell in 303 Creative LLC v. Elenis here.

Read more about Thomas More Society’s defense of artisan cake designer Cathy Miller:

• The Superior Court of California County of Kern Decision in Department of Fair Employment and Housing v. Cathy’s Creations, Inc. (dba Tastries) issued October 21, 2022, by Judge Eric Bradshaw https://www.documentcloud.org/documents/23178917-dfeh-v-miller-opinion        

• Department of Fair Employment and Housing v. Tastries Bakery https://thomasmoresociety.org/case/department-of-fair-employment-and-housing-v-tastries-bakery/

• Client Profile: Tastries Bakery and Bakery Artist Cathy Miller https://www.thomasmoresociety.org/clients/tastries-bakery-and-bakery-artist-cathy-miller

The Thomas More Society is a national not-for-profit law firm dedicated to restoring respect in law for life, family, religious liberty, and election integrity. Headquartered in Chicago and with offices across the country, the Thomas More Society fosters support for these causes by providing high quality pro bono legal services from local trial courts all the way up to the United States Supreme Court. For more information, visit thomasmoresociety.org.