As of 2022, discrimination against the LGBTQ+ community remains a legal gray area. With no federal laws on the books banning discrimination based on sexual orientation or gender identity outside of the area of employment, the issue has depended on local and state laws.

While many hoped the Supreme Court would set a precedent, protecting LGBTQ+ people from discrimination when they heard the case of Masterpiece Cake Shop v. Colorado Civil Rights Commission in 2017, the outcome left many just as confused about the federal stance on LGBTQ+ rights.

Now, the Supreme Court is looking for a redo. On Tuesday, Feb. 22, the court announced it would hear the case of 303 Creative LLC v. Elenis, which could decide whether or not specific businesses can legally discriminate against LGBTQ+ people.

The case centers on Lorie Smith, a graphic designer in Colorado, who was hoping to expand her business practice to include website design for engaged couples. However, before Smith even set up this business, she was adamant that she would not serve LGBTQ+ couples and insisted that she would include this in a notice on her website.

The case reflects many familiar elements to the Masterpiece Cake Shop case. To understand 303 Creative LLC v. Elenis, it is important to revisit what happened in that case.

Masterpiece Cake Shop v. Colorado Civil Rights Commission
In 2017, the Supreme Court had a chance to set a federal legal precedent regarding LGBTQ discrimination when it agreed to hear Masterpiece Cake Shop v. Colorado Civil Rights Commission. The case centered on Gay couple Charlie Craig and David Mullins, who were searching for a wedding cake. Jack Phillips, the owner of Masterpiece Cake Shop, refused service to Craig and Mullins, because he was religiously opposed to same-sex marriage.

Under Colorado's antidiscrimination law, which prohibits "discrimination based on sexual orientation in a place of business engaged in any sales to the public," Phillips's actions were deemed illegal by a court. The Colorado Court of Appeals affirmed the ruling. However, when the Supreme Court took it up, it reversed the decision.

The case was presented as a challenge to Phillips's First Amendment right to religious freedom, which Justice Anthony Kennedy acknowledged in his decision was in conflict with Craig and Mullins's rights to fair and equal service, according to Colorado state law.

"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," Kennedy said.

Kennedy acknowledged the free speech argument was weak, saying, "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."

A case without precedent
The court ruled in Philips's favor, reversing the decision of the Colorado Court of Appeals. However, Justice Ruth Bader Ginsburg, joined by Justice Sonia Sotomayor, provided key arguments in their dissent that the case was wrongly decided.

Ginsburg first began her dissent with a callback to Kennedy. "There is much in the Court's opinion with which I agree," she said. "'[P]urveyors of goods and services who object to gay marriages for moral and religious reasons [may not] put up signs saying 'no goods or services will be sold if they will be used for gay marriages,'" she quoted.

Ginsburg then brought up the distinction that Phillips was not refusing to create something that went against his beliefs, as he had created elegant wedding cakes for couples before and did support marriage. He, however, was discriminating against the customers, who had not asked him to include any messaging on the cake.

"Phillips would not sell to Craig and Mullins, for no reason other than their sexual orientation, a cake of the kind he regularly sold to others," she said. "When a couple contacts a bakery for a wedding cake, the product they are seeking is a cake celebrating their wedding — not a cake celebrating heterosexual weddings or same-sex weddings — and that is the service Craig and Mullins were denied."

"Phillips declined to make a cake he found offensive where the offensiveness of the product was determined solely by the identity of the customer requesting it," she continued. "The Colorado court distinguished the cases on the ground that Craig and Mullins were denied service based on an aspect of their identity that the State chose to grant vigorous protection from discrimination."

Kennedy finished his opinion with a caveat. "The outcome of cases like this in other circumstances must await further elaboration in the courts," he said, refusing to set precedent.

Now, another case is awaiting further elaboration.

Baiting the court
Before Smith could begin her new business project, she learned that the same Colorado antidiscrimination law from Craig and Mullen's case prohibits LGBTQ+ discrimination by any business open to the public. Before she could discriminate against any clients, Smith sought to challenge the legality of the law in federal court.

Smith's case raises the issues of another ruling. Kennedy and Ginsburg had agreed that signs cannot deliberately state that a business has plans to discriminate against LGBTQ people. This, however, is a fundamental basis of Smith's argument.

Smith is being defended by the conservative legal group Alliance Defending Freedom, which has argued that the law "compels speech based on viewpoint, and creates a pro-LGBT gerrymander by requiring religious artists to celebrate same-sex marriage while allowing other artists to decline messages like 'God is dead.'"

Instead of arguing that the antidiscrimination law is violating her freedom of religion, Smith is instead using the argument Kennedy called "difficult," stating that her free speech has been violated, despite her wedding website business still being hypothetical.

The Supreme Court, which now has a conservative supermajority, agreed to take up the case to consider "whether applying a public accommodation law to compel an artist to speak or stay silent violates the free-speech clause of the First Amendment."

Colorado urged the court not to take the case, as it appears to be a blatant attempt to bait the court into setting a precedent that will reverse the state's antidiscrimination law, with no denial of service yet having occurred. Colorado Attorney General Phillip J. Weiser said, "Companies cannot turn away LGBT customers because of who they are. We will vigorously defend Colorado's laws, which protect all Coloradoans by preventing discrimination and upholding free speech."

The Lambda Legal Defense and Education Fund has submitted an amicus curiae brief to the court. "This isn't about cake, or websites, or flowers," it said. "It's about protecting LGBTQ people and their families from being subjected to slammed doors, service refusals, and public humiliation in countless places — from fertility clinics to funeral homes, and everywhere in between."

The court will hear the case in its next term, which will begin in October 2022. It agreed to hear the free-speech argument but not Smith's additional freedom of religion aspect. The ruling will either further alienate LGBTQ+ people from their civil rights or provide needed protection at a federal level.