On Friday, the Supreme Court dealt a devastating blow to LGBTQ+ nondiscrimination laws, carving out a First Amendment exception any time a law “compels” a business to “express” a message about sexual orientation with which it disagrees. In the words of Justice Sonia Sotomayor’s dissent, the opinion “is, quite literally, a notice that reads: ‘Some services may be denied to same-sex couples.’ ”
The case, 303 Creative v. Elenis, was manufactured by the Alliance Defending Freedom, a Christian law firm that opposes LGBTQ+ equality in all walks of life. 303 Creative is a for-profit Colorado business owned and operated by Lorie Smith, who opposes same-sex marriage. No same-sex couple has ever tried to hire Lorie Smith to create a website for their wedding. Represented by ADF, however, she filed a preemptive lawsuit demanding a First Amendment right to turn away any same-sex couples who request a wedding website. So the case is built entirely on hypotheticals, and there is no real record to speak of.
Justice Neil Gorsuch’s 6–3 opinion for the court got around this problem by insisting that Smith faces a “credible threat of enforcement” because Colorado acknowledges that it will enforce its civil rights law. He went on to declare that “Colorado seeks to compel speech Ms. Smith does not wish to provide,” speech that would be “celebrating marriages”—those of same-sex couples—of which she does not approve. (The state insists that it would not compel Smith to actually design a wedding website but merely to sell a preexisting template to all customers; Gorsuch simply dismissed this claim, while simultaneously criticizing the state for its ostensible eagerness to punish Smith and other anti-gay business owners.) He applied various precedents limiting the state’s ability to “compel” expression, including Boy Scouts v. Dale (which gave the Boy Scouts a right to exclude gay people) and West Virginia v. Barnette (which gave Jehovah’s Witness schoolchildren a right to opt out of the pledge of allegiance).
The difference between those decisions and 303 Creative, of course, is that this case involves a commercial enterprise, not private individuals or expressive associations. Thus, as Sotomayor wrote in dissent, Friday marks “the first time in its history” that the court has granted “a business open to the public a constitutional right to refuse to serve members of a protected class.” Never before has the court held that the government cannot compel commercial enterprises to serve all customers equally on constitutional grounds. This issue was litigated during the civil rights movement of the 1960s, and the Supreme Court unanimously found no First Amendment right to discriminate in public accommodations. (The court also declined to do so in 2018’s Masterpiece Cakeshop, but as the dissent pointed out, the court’s personnel has changed dramatically since then, with two new Trump-appointed justices having filled the seats previously held by Anthony Kennedy and Ruth Bader Ginsburg.)
Moreover, Sotomayor pointed out, Colorado’s law is aimed not at an individual’s ideas about sexual orientation, as Gorsuch suggested, but at how they impose these ideas on potential customers in a marketplace that the state wishes to remain open to all. The statute “targets conduct, not speech, for regulation,” she wrote, “and the act of discrimination has never constituted protected expression under the First Amendment.”
Gorsuch, in response, tried to draw a line between discrimination based on “status” and discrimination based on “message,” claiming that the First Amendment protects only the latter. Smith, he concluded, was not discriminating against gay people because of their sexual orientation; she was refusing to express a message about sexual orientation that she does not believe. Free speech does not cover “status-based discrimination unrelated to expression,” he wrote, but it does “protect a speaker’s right to control her own message.” That distinction favors Smith because she says she will serve gay clients, just not those who are getting married. Sotomayor replied that “this logic would be amusing if it were not so embarrassing,” quipping that, on Gorsuch’s logic, a racist hotel could argue “that Black people may still rent rooms for their white friends.”
Gorsuch also trotted out the parade of horribles that would allegedly follow from a ruling against Smith: “Taken seriously,” he wrote, Colorado’s position “would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty”—requiring, for instance, “a male website designer married to another man to design websites for an organization that advocates against same-sex marriage.”
However, in a conciliatory passage, Gorsuch also acknowledged “the vital role public accommodations laws play in realizing the civil rights of all Americans.” He expressed approval for LGBTQ+ nondiscrimination laws as a general matter, writing that states may “protect gay persons” just like any other class “in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.” Sotomayor was not convinced. “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,” she wrote, “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.”
Sotomayor also speculated that every anti-gay business owner will now attempt to recast their discrimination as “expression” to secure a First Amendment right to discriminate against LGBTQ+ people. She cited various examples of recent anti-gay discrimination, including a funeral home that refused to cremate and hold a memorial service for a gay man. Is a memorial service “expressive” conduct now shielded by Constitution? Perhaps so.
In truth, this decision was probably inevitable from the moment that Gorsuch held, in 2020’s Bostock v. Clayton County, that Title VII of the Civil Rights Act protects LGBTQ+ employees. The justice rarely hands down a progressive victory without a conservative follow-up limiting its scope, and on Friday, he delivered big-time. In Gorsuch’s view, businesses have no general right to discriminate against LGBTQ+ people—except when they do, which is when they call that discrimination “expressive conduct.”
“Today,” Sotomayor wrote, “is a sad day in American constitutional law and in the lives of LGBT people.” She is correct. 303 Creative will haunt every same-sex couple seeking any kind of service to celebrate their wedding—or their engagement, or the birth of their child, or any other aspect of their lives. Suddenly, they have lost the protections of civil rights law, and are at the mercy of individual businesses. Gorsuch cast his decision as a victory for civil rights. But this is emphatically not what the Civil Rights Movement fought for.
