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.
