Media Law for the Real World: When Faith, Speech, and the Law collide
There’s a question at the heart of three major Supreme Court cases that has divided courts, legal scholars, and the country for over a decade: Can the government force you to create something that violates your beliefs?
The answer, it turns out, depends a lot on what you’re creating — and how the government treats you in the process.
Three rights, one collision
Three constitutional principles keep crashing into each other here. The Free Exercise Clause protects your right to hold religious beliefs and act on them. Free Speech protections extend beyond words to expressive conduct — if what you’re doing communicates a message, it can be protected as speech. And public accommodations and anti-discrimination laws require businesses open to the public to serve customers equally, regardless of characteristics like race, gender, or sexual orientation.
The collision happens when a business owner says: I can’t serve this customer because doing so would violate my religious beliefs — or force me to say something I don’t believe.
Wait — how is baking a cake “speech”?
You might be thinking: neither of these people are saying anything. They’re just making a product. Fair question.
The answer lies in expressive conduct, a protected form of speech under the First Amendment. The Court has long recognized that protected speech isn’t limited to words. For example, burning a flag or wearing a black armband to protest a war is considered speech. What makes something expressive conduct is that it communicates a message.
When a web designer creates a custom website, their name is on it. It reflects their creative choices. Some believe that forcing the creator to produce a product celebrating a marriage they don’t believe in is the government putting words (or artistic choices) in their mouth. Objectively, that would be compelled speech — something the Supreme Court has consistently held is unconstitutional.
Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018)
Jack Phillips, owner of Masterpiece Cakeshop in Lakewood, Colorado, declined to create a custom wedding cake for a same-sex couple, citing his religious beliefs. Colorado’s Civil Rights Commission found he had violated the state’s anti-discrimination law. (CADA) (Masterpiece Cakeshop v. Colorado Civil Rights Commission)
SCOTUS ruled 7-2 in his favor — but the ruling was more narrow than most people realize. The Court didn’t decide whether refusing to bake the cake was constitutionally protected. Instead, it focused on the Commission’s conduct: commissioners had made dismissive, hostile remarks about Phillips’ religious beliefs during the proceedings. That religious hostility, the Court said, violated the Free Exercise Clause.
Masterpiece won on process. The bigger question — whether a baker has a constitutional right to refuse — was left open.
303 Creative LLC v. Elenis (2023)
Lorie Smith, a Colorado web designer, wanted to expand her business to custom wedding websites, but only for opposite-sex couples. She also cited her religious beliefs. She filed a pre-enforcement challenge before she was ever actually charged with anything. (303 Creative v. Elenis)
SCOTUS ruled 6-3 in her favor, and this time the ruling went to the merits. Because Smith’s websites are custom, original, expressive works that bear her name, Colorado cannot compel her to create content celebrating marriages she doesn’t believe in.
This was the ruling Masterpiece wasn’t. The Court held that the state cannot compel speech by forcing someone to create expressive content with which they disagree, even in the context of a public accommodations law.
Justice Sotomayor’s dissent said: “the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class.”
Sweet Cakes by Melissa — Why the fight isn’t over
If Masterpiece and 303 Creative are the cases that got resolved, Sweet Cakes by Melissa is the one that shows how hard it is to actually win — even when the law is moving in your favor.
In January 2013, Aaron and Melissa Klein, owners of a bakery in Gresham, Oregon, declined to make a wedding cake for a same-sex couple. Oregon’s Bureau of Labor and Industries charged them under state law and ultimately imposed a $135,000 fine. The Kleins were forced to close their bakery and eventually relocated to Montana.
That should have been the beginning of a straightforward legal fight. Instead, it became a decade-long loop.
SCOTUS intervened twice — but never on the merits. In 2019, the Court vacated and remanded in light of Masterpiece. Oregon’s courts came back, acknowledged that BOLI had indeed acted with religious hostility toward the Kleins — and still upheld the discrimination finding, sending the case back to BOLI to recalculate damages. The same agency found to have been biased then reduced the fine to $30,000.
In June 2023 — the same month as their ruling in 303 Creative — SCOTUS vacated and remanded Sweet Cakes again. The Oregon Court of Appeals heard oral argument again in January 2024. A decision is still pending.
Why no clean resolution? Because the Oregon courts keep doing just enough — adjusting the penalty, acknowledging the hostility — without ever conceding that the underlying law is unconstitutional as applied to the Kleins.
The intersection of the three cases
The unresolved legal question at the center of it all: is a custom cake considered expressive speech in the way a custom website is? 303 Creative answered that question for web designers. It has not answered it for bakers. Until it does, the Kleins keep fighting.
These three cases together tell a story about how the law moves — in increments, in narrow rulings, in remands rather than resolutions. Masterpiece said the government can’t be hostile. 303 Creative said the government can’t compel speech. Sweet Cakes is still asking: what happens when the government does both, keeps getting told to try again, and keeps finding a way to hold on?
That answer is still coming.