Of Cakes, Websites and Faith-Based Complaints: the Fine Art of Crafting Religion as Speech

Abstract

Abstract In 303 Creative LLC v. Elenis (2023), for the first time ever, the United States Supreme Court (USSC) explicitly recognised that business commercials now enjoy constitutional, First Amendment-based religious exemptions from providing services to same-sex customers. Not even in its much-maligned decision in Burwell v. Hobby Lobby (2014), which extended in an unprecedented way to for-profit companies statutory (but not constitutional) rights heretofore confined to churches, the Court went this far. But more than this, the decision in 303 Creative LLC also appears to be the symbol of something new: a definitive shift to the Free Speech Clause to the U.S. Constitution as an alternative tool to the Free Exercise Clause for protecting religious liberty. This article explains why this shift in doctrine has happened, why it matters, and how enhanced protections for business religious free speech fits with the agenda of conservative constitutional politics in America.