A Supreme Dissent: Justice Sonia Sotomayor Eviscerates the Court’s Civil Rights Rollback by Stephen Rohde

 

Straining to hand the anti-LGTBQ movement a major legal victory, all six conservative Supreme Court justices voted on June 30 in 303 Creative, LLC v Elanis  to uphold a challenge to Colorado’s anti-discrimination laws. In so doing, they upended decades of key legal precedent that has long held that the First Amendment does not entitle commercial enterprises that offer their goods and services to the general public to discriminate on the basis of race, religion, sexual orientation or any other protected category.

To get a sense of just how spurious both the case, which relies on a hypothetical scenario, and the majority decision are — not to mention the floodgates for discriminatory conduct the decision opens up — one need only look at Justice Sonia Sotomayor’s stinging dissent. The full scope of her powerful and widely noted 38-page dissent, which was joined by Justices Elena Kagan and Ketanji Brown Jackson deserves serious attention.

It should be read by every American and taught in colleges and universities, not only for its legal insights and moral clarity, but also for the guidance it will provide future justices seeking to repair the immense damage 303 Creative could well cause. 

303 Creative LLC is a Colorado company that sells graphic and website designs for profit. Lorie Smith is the company’s founder and sole member-owner. She believes same-sex marriages are “false” because “God’s true story of marriage” is a story of a “union between one man and one woman.”  Same sex marriage, according to her, “violates God’s will” and “harms society and children.”

303 Creative has never sold wedding websites, but Smith now believes that “God is calling her to explain His true story about marriage.” For that reason, she would like her company to sell wedding websites “to the public” — just not to same-sex couples.  She also wants to post a notice on the company’s website announcing its intent to discriminate.

In Smith’s view, “it would violate [her] sincerely held religious beliefs to create a wedding website for a same-sex wedding because, by doing so, [she] would be expressing a message celebrating and promoting a conception of marriage that [she] believe[s] is contrary to God’s design.”

By Gorsuch’s logic, any business engaged in “creative expression” can invoke the Court’s new free pass and openly discriminate on the basis of race, religion, gender, national origin or any other protected classification. 

Since Smith’s company has never sold a wedding website to any customer, Colorado has never had to enforce its Anti-Discrimination Act (“CADA”) against the company. Instead, Smith and her company sued the state in federal court, seeking a court decree giving them a special exemption from CADA’s Accommodation Clause and Communication Clause.

The first makes it unlawful for a business to offer itself to the public yet deny to any individual, because of sexual orientation among other grounds, the full and equal enjoyment of the business’ goods or services. The latter clause makes it unlawful to advertise that goods or services will be denied because of sexual orientation, among other grounds. 

According to Smith, the Free Speech Clause of the First Amendment entitles her company to refuse to sell websites for same-sex weddings, even though the company plans to offer wedding websites to the rest of the general public. In other words, the company claims a categorical exemption from a public accommodations law simply because the company sells expressive services.

The majority opinion, written by Justice Neil Gorsuch, adopts the entire thrust of 303 Creative’s argument. Gorsuch ignores the threshold issue — which the Court has often used in the past to avoid major constitutional controversies — that this is a purely hypothetical controversy since no same-sex couple has ever asked Smith to design a wedding website for them. 

Instead, Gorsuch eagerly jumps at the chance to advance a fundamental conservative policy goal of undermining marriage equality. To do so, he weaponizes the First Amendment by finding that to compel Smith to create a website for same-sex couples — an act of creative expression — violates her free speech right to be free from government compulsion.  

Despite the fact that Smith grounds her personal beliefs in “God’s design,” the Court pointedly does not base its decision on freedom of religion. This appears calculated to clear the path for future claimants to seek the right to violate anti-discrimination laws on the basis of any political, ideological or philosophical grounds so long as they are engaged in “an act of creative expression.” 

And nothing in the majority opinion limits that exemption to LGBTQ discrimination. By Gorsuch’s logic, any business engaged in “creative expression” can invoke the Court’s new free pass and openly discriminate on the basis of race, religion, gender, national origin or any other protected classification. 

While the Majority Retreats from the “Promise of Freedom,” Three Justices Dissent

Justice Sotomayor’s pointed and comprehensive dissent began by pointing out that only five years ago in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, (2018), “this Court recognized the ‘general rule’ that religious and philosophical objections to gay marriage ‘do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.’” 

She also pointed out that in Masterpiece Cakeshop (which the Court reversed and remanded for further review without deciding whether one’s right to free speech or free exercise of religion excused that person from non-discrimination laws), the Court recognized the “serious stigma” that would result if “purveyors of goods and services who object to gay marriages for moral and religious reasons” were “allowed to put up signs saying ‘no goods or services will be sold if they will be used for gay marriages.’”

Sotomayor’s alarm at the apparent contradiction — indeed, hypocrisy — handed down by the majority is obvious: “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.”  Indeed, the Court “holds that the company has a right to post a notice that says, ‘no [wedding websites] will be sold if they will be used for gay marriages.’”

“Our Constitution contains no right to refuse service to a disfavored group.”

Sotomayor immediately put the Court’s ruling in the context of what is happening outside the courthouse. “Around the country, there has been a backlash to the movement for liberty and equality for gender and sexual minorities. New forms of inclusion have been met with reactionary exclusion.

This is heartbreaking. Sadly, it is also familiar. When the civil rights and women’s rights movements sought equality in public life, some public establishments refused. Some even claimed, based on sincere religious beliefs, constitutional rights to discriminate. The brave Justices who once sat on this Court decisively rejected those claims.”

Declaring the majority opinion “wrong. Profoundly wrong,” Sotomayor explains why: The anti-discrimination law in question “targets conduct, not speech, for regulation, and the act of discrimination has never constituted protected expression under the First Amendment. Our Constitution contains no right to refuse service to a disfavored group.”

The majority gives only cursory treatment to the development of anti-discrimination law in the United States.  By contrast, Sotomayor devotes the first 20 pages of her dissent to documenting that vital history in detail.  She definitively establishes how the Court’s decision in 303 Creative is so drastically at odds with our country’s struggle to overcome the effects of slavery, Jim Crow, segregation and white supremacy in order to guarantee “to every person the full and equal enjoyment of places of public accommodation without unjust discrimination.”  The legal duty of a business open to the public to serve the public without unjust discrimination “is deeply rooted in our history.” 

For Sotomayor, the true power of this principle lies “in its capacity to evolve, as society comes to understand more forms of unjust discrimination and, hence, to include more persons as full and equal members of ‘the public.’”

How Many Precedents Can One Ruling Ignore?

Sotomayor’s vivid description of the historic struggle to ensure equal public accommodations for all people reveals that the decision in 303 Creative is not the first time opponents have claimed that non-discrimination laws violate their constitutional rights. 

“Backlashes to race and sex equality gave rise to legal claims of rights to discriminate, including claims based on First Amendment freedoms of expression and association,” she notes.  But the Court has been “unwavering in its rejection of those claims,” because “invidious discrimination ‘has never been accorded affirmative constitutional protections’” citing a key decision from 1973.

For example, opponents of the Civil Rights Act of 1964, such as Sen. John Tower (R, TX), argued that the legislation would deny them “any freedom to speak or to act on the basis of their religious convictions or their deep-rooted preferences for associating or not associating with certain classifications of people.” But Congress rejected those arguments and concluded that Title II of the Act, in particular, did not invade “rights of privacy [or] of free association.”

Similar claims attempting to uphold discrimination also lost in the courts.  In Heart of Atlanta Motel v. United States (1964), the Court rejected the argument of the motel owner that Title II was “tak[ing] away the personal liberty of an individual to run his business as he sees fit with respect to the selection and service of his customers.” Instead, the Court cited “a long line of cases” holding that “prohibition of racial discrimination in public accommodations” did not “interfer[e] with personal liberty.” 

In Katzenbach v. McClung (1964), the owner of Ollie’s Barbecue (Ollie McClung) likewise argued that Title II’s application to his business violated the “personal rights of persons in their personal convictions” to deny services to Black people.  Dripping with sarcasm, Sotomayor notes, “McClung did not refuse to transact with Black people. Oh, no. He was willing to offer them take-out service at a separate counter. . . .  Only integrated table service, you see, violated McClung’s core beliefs. So he claimed a constitutional right to offer Black people a limited menu of his services.” Citing Heart of Atlanta Motel, the Court rejected this argument. 

In Newman v. Piggie Park Enterprises, Inc. (1968), the owner of a chain of drive-in establishments asserted that requiring him to “contribut[e]” to racial integration in any way violated the First Amendment by interfering with his religious  liberty, because that would “controven[e] the will of God.” The Court found this argument “patently frivolous.” 

Sotomayor observes that fighting discrimination is like “battling the Hydra;” whenever you defeat “one form of . . . discrimination,” another “spr[ings] up in its place.”

Yet again, in Roberts v. United States Jaycees (1984), the Court rejected the argument by the United States Jaycees, which sought an exemption from a Minnesota law that forbade discrimination on the basis of sex in public accommodations.  The Jaycees argued that to include women would violate its “members’ constitutional rights of free speech and association.”

“The power of the state to change the membership of an organization is inevitably the power to change the way in which it speaks,” they claimed; “the right of the Jaycees to decide its own membership” was “inseparable,” in its view, “from its ability to freely express itself.”

On the contrary, the Court in Roberts held that the “application of the Minnesota statute to compel the Jaycees to accept women” did not infringe the organization’s First Amendment “freedom of expressive association” because the public accommodations law did “not aim at the suppression of speech” and did “not distinguish between prohibited and permitted activity on the basis of viewpoint.” 

The law’s purpose was “eliminating discrimination and assuring [the State’s] citizens equal access to publicly available goods and services.” That goal, the Court reasoned, “was unrelated to the suppression of expression” and “plainly serves compelling state interests of the highest order.”

In her concurrence, Justice O’Connor stressed that since the U. S. Jaycees was a predominantly commercial entity open to the public, the state was “free to impose any rational regulation” on commercial transactions themselves. “A shopkeeper,” Justice O’Connor offered as an example, “has no constitutional right to deal only with persons of one sex.” 

Similarly, the Court had just decided in Hishon v. King & Spalding (1984) that a law partnership had no constitutional right to discriminate on the basis of sex in violation of Title VII, regardless of the fact that the law partnership was an act of association, and its services (legal advocacy) were expressive; indeed, they consisted primarily of speech. The law firm had argued that requiring it to consider a woman for the partnership violated its First Amendment rights “of free expression” and “of commercial association.” 

The Court rejected this argument and held that the application of Title VII did not “infringe constitutional rights of expression or association” because compliance with Title VII did not “inhibi[t]” the partnership’s ability to advocate for certain “ideas and beliefs.” The Court reiterated that “‘invidious private discrimination . . . has never been accorded affirmative constitutional protections.’”

Quoting Justice Ruth Bader Ginsberg, Sotomayor observes that fighting discrimination is like “battling the Hydra;” whenever you defeat “one form of . . . discrimination,” another “spr[ings] up in its place.” Clearly frustrated, Sotomayor writes, “[t]ime and again, businesses and other commercial entities have claimed constitutional rights to discriminate. And time and again, this Court has courageously stood up to those claims — until today.

Today, the Court shrinks. A business claims that it would like to sell wedding websites to the general public yet deny those same websites to gay and lesbian couples. Under state law, the business is free to include, or not to include, any lawful message it wants in its wedding websites. The only thing the business may not do is deny whatever websites it offers on the basis of sexual orientation.”

Conservative Court’s Ruse of Conflating Free Speech With Discriminatory Conduct

Sotomayor’s dissent couldn’t be clearer: “The First Amendment does not entitle petitioners to a special exemption from a state law that simply requires them to serve all members of the public on equal terms. Such a law does not directly regulate petitioners’ speech at all, and petitioners may not escape the law by claiming an expressive interest in discrimination. The First Amendment likewise does not exempt petitioners from the law’s prohibition on posting a notice that they will deny goods or services based on sexual orientation.”

The Supreme Court, Sotomayor explains, has long held that “the First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech.” Sorrell v. IMS Health Inc. (2011). “Congress, for example, can prohibit employers from discriminating in hiring on the basis of race. The fact that this will require an employer to take down a sign reading ‘White Applicants Only’ hardly means that the law should be analyzed as one regulating the employer’s speech rather than conduct.” Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (2006) (“FAIR”). 

The decision itself inflicts a kind of stigmatic harm, on top of any harm caused by denials of service.

The law at issue in FAIR was the Solomon Amendment, which prohibited an institution of higher education in receipt of federal funding from denying a military recruiter “the same access to its campus and students that it provides to the nonmilitary recruiter receiving the most favorable access.” 

A group of law schools challenged the Solomon Amendment based on their sincere objection to the military’s “Don’t Ask, Don’t Tell” policy, a homophobic policy that barred openly LGBT people from serving in the military. The law schools claimed that the Solomon Amendment infringed the schools’ First Amendment freedom of speech, because they provided recruiting assistance in the form of emails, notices on bulletin boards and flyers.

As the Court acknowledged, those services “clearly involve speech.” And the Solomon Amendment required “schools offering such services to other recruiters” to provide them equally “on behalf of the military,” even if the school deeply objected to creating such speech. 

But, as the Court further explained, that requirement did not transform the equal provision of services into “compelled speech” of the kind barred by the First Amendment, because the school’s speech was “only ‘compelled’ if, and to the extent, the school provides such speech for other recruiters.”  Any speech compulsion, the Court held, was “plainly incidental to the Solomon Amendment’s regulation of conduct.” 

As Sotomayor explains, “the same principle resolves this case.” 

Smith wants to post a notice on her company’s homepage that the company will refuse to sell any website for a same sex couple’s wedding. But the Supreme Court in Sorrell has already said that “a ban on race-based hiring may require employers to remove ‘White Applicants Only’ signs.” 

And citing FAIR, Sotomayor reiterates that the law “does not dictate the content of speech at all, which is only ‘compelled’ if, and to the extent,” the company offers “such speech” to other customers. All the company has to do is offer its services without regard to customers’ protected characteristics. Any effect on the company’s speech is therefore “incidental” to the state’s content-neutral regulation of conduct, as was held in FAIR and Hurley.

“Once these features of the law are understood,” Sotomayor writes, “it becomes clear that petitioners’ freedom of speech is not abridged in any meaningful sense, factual or legal. Petitioners remain free to advocate the idea that same-sex marriage betrays God’s laws. . . . 

Even if Smith believes God is calling her to do so through her for-profit company, the company need not hold out its goods or services to the public at large.” Finally, Sotomayor points out that “even if the company offers its goods or services to the public, it remains free under state law to decide what messages to include or not to include.

To repeat (because it escapes the majority): The company can put whatever ‘harmful’ or ‘low-value’ speech it wants on its websites. It can ‘tell people what they do not want to hear,’‘ as the majority puts it. “All the company may not do is offer wedding websites to the public yet refuse those same websites to gay and lesbian couples,” citing Runyon, which distinguished between schools’ ability to express their bigoted view “that racial segregation is desirable” and the schools’ proscribable “practice of excluding racial minorities..

Sotomayor offers so many cogent  examples, they are worth quoting at length:  

A professional photographer is generally free to choose her subjects. She can make a living taking photos of flowers or celebrities. The State does not regulate that choice. If the photographer opens a portrait photography business to the public, however, the business may not deny to any person, because of race, sex, national origin, or other protected characteristic, the full and equal enjoyment of whatever services the business chooses to offer. That is so even though portrait photography services are customized and expressive. If the business offers school photos, it may not deny those services to multiracial children because the owner does not want to create any speech indicating that interracial couples are acceptable. If the business offers corporate headshots, it may not deny those services to women because the owner believes a woman’s place is in the home. And if the business offers passport photos, it may not deny those services to Mexican Americans because the owner opposes immigration from Mexico. The same is true for sexual-orientation discrimination. If a photographer opens a photo booth outside of city hall and offers to sell newlywed photos captioned with the words ‘Just Married,’ she may not refuse to sell that service to a newlywed gay or lesbian couple, even if she believes the couple is not, in fact, just married because in her view their marriage is ‘false.’

Because any burden on petitioners’ speech is incidental to the law’s neutral regulation of commercial conduct, the regulation satisfies the standards established by the Court, Sotomayor explains.  “The law’s application ‘promotes a substantial government interest that would be achieved less effectively absent the regulation.’ . . .

Indeed, this Court has already held that the state’s goal of ‘eliminating discrimination and assuring its citizens equal access to publicly available goods and services’ is ‘unrelated to the suppression of expression and ‘plainly serves compelling state interests of the highest order.’” And the Court has also held that “by prohibiting only ‘acts of invidious discrimination in the distribution of publicly available goods, services, and other advantages, the law ‘responds precisely to the substantive problem which legitimately concerns the State and abridges no more speech . . . than is necessary to accomplish that purpose.’”

Sotamayor, “Frustrated by this inescapable logic,” chides the majority for “dial[ing] up the rhetoric, asserting that ‘Colorado seeks to compel [the company’s] speech in order to excise certain ideas or viewpoints from the public dialogue.’ The state’s ‘very purpose in seeking to apply its law,’ in the majority’s view, is ‘the coercive elimination of dissenting ideas about marriage.’”

She calls this “an astonishing view of the law,” because it is “contrary to the fact that a law requiring public-facing businesses to accept all comers ‘is textbook viewpoint neutral,’” citing Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez (2010). 

It is also contrary to the fact that Colorado’s law “allows Smith to include in her company’s goods and services whatever ‘dissenting views about marriages’ she wants,” and it is “contrary to this Court’s clear holdings that the purpose of a public accommodations law, as applied to the commercial act of discrimination in the sale of publicly available goods and services, is to ensure equal access to and equal dignity in the public marketplace.”

Sotomayor also finds it “dispiriting” that the majority suggests that this case resembles the historic decision in West Virginia Bd. of Ed. v. Barnette (1943), in which the Court struck down a state law requiring students who belonged to the Jehovah Witnesses to say the Pledge of Allegiance every day at school, contrary to their religious beliefs. 

Sotomayor points out that the Court in FAIR already held that a “content-neutral equal-access policy is ‘a far cry’ from a mandate to ‘endorse’ a pledge chosen by the Government” because “it trivializes the freedom protected in Barnette” to equate the two. “Requiring Smith’s company to abide by a law against invidious discrimination in commercial sales to the public does not conscript her into espousing the government’s message. It does not ‘invad[e]’ her ‘sphere of intellect’ or violate her constitutional ‘right to differ.’… All it does is require her to stick to her bargain.”

Equal Terms

“Today is a sad day in American constitutional law and in the lives of LGBT people,” Sotomayor writes in the concluding section of her dissent.  “The Supreme Court of the United States declares that a particular kind of business, though open to the public, has a constitutional right to refuse to serve members of a protected class. The Court does so for the first time in its history. By issuing this new license to discriminate in a case brought by a company that seeks to deny same-sex couples the full and equal enjoyment of its services, the immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status. In this way, the decision itself inflicts a kind of stigmatic harm, on top of any harm caused by denials of service. The opinion of the Court is, quite literally, a notice that reads: ‘Some services may be denied to same-sex couples.’” 

She continues, “Ask any LGBT person and you will learn just how often they are forced to navigate life in this way. They must ask themselves: If I reveal my identity to this co-worker, or to this shopkeeper, will they treat me the same way? If I hold the hand of my partner in this setting, will someone stare at me, harass me, or even hurt me? It is an awful way to live. Freedom from this way of life is the very object of a law that declares: All members of the public are entitled to inhabit public spaces on equal terms. Freedom from this way of life is the very object of a law that declares: All members of the public are entitled to inhabit public spaces on equal terms.” 

Sotomayor is pleased that the “LGBT rights movement has made historic strides, and I am proud of the role this Court recently played in that history.” Today, however, “we are taking steps backward. A slew of anti-LGBT laws have been passed in some parts of the country,” which “variously censor discussion of sexual orientation and gender identity in schools, … and ban drag shows in public,” yet “we are told that the real threat to free speech is that a commercial business open to the public might have to serve all members of the public.” “In this pivotal moment,” she continues, “the Court had an opportunity to reaffirm its commitment to equality on behalf of all members of society, including LGBT people. It does not do so.”

And Sotomayor sees a much broader impact in what the majority has done.  “Although the consequences of today’s decision might be most pressing for the LGBT community, the decision’s logic cannot be limited to discrimination on the basis of sexual orientation or gender identity. The decision threatens to balkanize the market and to allow the exclusion of other groups from many services.”

As her dissent states, “A website designer could equally refuse to create a wedding website for an interracial couple, for example. How quickly we forget that opposition to interracial marriage was often because ‘Almighty God . . . did not intend for the races to mix,’” citing Loving v. Virginia (1967).  “Yet the reason for discrimination need not even be religious, as this case arises under the Free Speech Clause. A stationer could refuse to sell a birth announcement for a disabled couple because she opposes their having a child. A large retail store could reserve its family portrait services for ‘traditional’ families. And so on. Wedding websites, birth announcements, family portraits, epitaphs. These are not just words and images. They are the most profound moments in a human’s life. They are the moments that give that life personal and cultural meaning.”

“Yet, the justice somehow summons the hope that this shameful decision does not mean that we are powerless in the face of the decision. The meaning of our Constitution is found not in any law volume, but in the spirit of the people who live under it. Every business owner in America has a choice whether to live out the values in the Constitution. 

Make no mistake: Invidious discrimination is not one of them. ‘[D]iscrimination in any form and in any degree has no justifiable part whatever in our democratic way of life,’” citing the dissent of Justice Frank Murphy in Korematsu v. United States, (1944), wherein he added,  “It is unattractive in any setting but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. The unattractive lesson of the majority opinion is this,” Sotomayor ends her dissent: “What’s mine is mine, and what’s yours is yours. The lesson of the history of public accommodations laws is altogether different. It is that in a free and democratic society, there can be no social castes. And for that to be true, it must be true in the public market. For the ‘promise of freedom’ is an empty one if the Government is ‘powerless to assure that a dollar in the hands of [one person] will purchase the same thing as a dollar in the hands of a[nother],’” citing the Supreme Court in 1968 in Jones v.Alfred H. Mayer Co., “Because the Court today retreats from that promise, I dissent.”  

Sotomayor’s brilliant opinion is part of an historic tradition in which visionary justices such as Ruth Bader Ginsberg, William Brennan, Oliver Wendall Holmes Jr. and John Marshall Harlan issued powerful dissents not only to dissect the flaws in majority opinions but to articulate a better path forward for future cases to treat the Constitution as an instrument of justice and equality for all people.

-Stephen Rohde is a constitutional scholar, lecturer, writer, political activist and retired civil rights lawyer. He is the author of “American Words of Freedom” and “Freedom of Assembly,” and is a regular contributor to the Los Angeles Review of Books and Los Angeles Lawyer magazine.