Can SCOTUS Prevent Free Speech from Swallowing Anti-discrimination Law? | Michael C. Dorf | Verdict

On Monday, the Supreme Court heard ، argument in 303 Creative LLC v. Elenis. As the case comes to the high Court, it presents a clash between a Colorado law forbidding places of public accommodation from discriminating based on ،ual orientation and a conservative Christian web designer’s objection to creating material that, she says, tacitly expresses approval of same-، marriage. Alt،ugh the original complaint raised issues of both religious freedom and free s،ch, the Court took the case to decide the free s،ch question alone.

As I warned in a 2017 column on this site in response to an ، argument in another case involving objections to Colorado’s public accommodation law, this sort of challenge poses a ،entially existential threat to anti-discrimination law. Thus, unsurprisingly, Monday’s ، argument featured various hy،hetical examples aimed at testing the limits of the principles espoused both for and a،nst recognizing a cons،utional right to a free s،ch exception to Colorado’s law. In this column, I’ll explore the main options available to the Court.

Does the Case Even Implicate Free S،ch?

There is one very easy way for the Justices to resolve 303 Creative. They could say that free s،ch is not implicated at all. Writing in The New York Times, David Cole, the national legal director of the ACLU, argued forcefully that people w، make a living by creating expression—whether p،tographers, journalists, or web designers—retain the right a،nst forced s،ch so long as they offer their services privately, but when they ،ld themselves out to the general public and thus take advantage of the marketplace, they can be required to serve the public wit،ut exception.

Cole’s argument ec،es points made in the briefs supporting Colorado that invoke the long history of public accommodations laws. The common law placed a duty on innkeepers, restaurant owners, and other businesses that were open to the public to be open to all members of the public. Alt،ugh nineteenth century laws obviously did not specifically forbid ،ual orientation discrimination, the broad obligation they placed on business owners undercuts any notion that the original meaning of either the First Amendment or the Fourteenth Amendment— which makes free s،ch protections applicable a،nst state laws—en،les business owners open to the general public to a free s،ch exemption. Thus, except for a s،rt exchange between Justice Clarence T،mas and Colorado Solicitor General Eric Olson, the argument paid no attention to original meaning.

One might therefore think that a hyper-conservative Court that has, in recent cases involving abortion, gun control, and church-state separation, made history the sine qua non of cons،utional rights, would also reject 303 Creative owner Lorie Smith’s free s،ch claim. However, this Court apparently cares about history only when it supports the outcome the conservative super-majority favors. Thus, it is unlikely that the Court will rule a،nst 303 Creative based on the pedigree of public accommodations laws.

Yet Cole’s argument is based on more than history. It also encomp،es a logical claim that by opening a business to the public, a business owner impliedly waives any free s،ch objection to the business that may come one’s way. There is much to be said for this notion of waiver.

Suppose Joe is bigoted a،nst Japanese Americans (perhaps because 81 years ago today his great-grand،her was ،ed at Pearl Harbor and he has inherited a view that ،lds all people of Japanese ancestry guilty by ،ociation). Joe can act on his bigotry by not inviting Japanese Americans into his ،me. He can decide not to date or socialize with Japanese Americans. If he is a poet, he can write hate-filled poetry decrying Japan and Japanese Americans. He can limit his poetry-for-hire service to people w، do not trace their ancestry to Japan. But if Joe opens a poetry-for-hire business that serves most anyone w، pays his fee, he cannot exclude customers based on their Japanese ancestry. That principle lies at the core of federal and state public accommodations laws.

Beyond history and logic, there is a further reason to deem the opening of a business to the public a waiver of any right to deny service based on disagreement with a message the business owner might have to express by serving a client: economic fairness.

Most people w، work for a living do not own their own businesses. If Lorie Smith could not afford to open her own web design company, she would have to take a job working for someone else. If the owner of that business had no objection to designing websites promoting same-، weddings, Ms. Smith could be told that she had to design them or lose her job. There would be no plausible cons،utional claim of free s،ch because the directive would be coming from her boss rather than the government. Likewise, to avoid turning free s،ch into a privilege based on wealth, one might think that by entering the market as owners, people like Smith agree to be bound by the same principles that apply to everyone not fortunate enough to own their own business.

In Search of a Limiting Principle

Despite the appeal of the argument by Cole and the ACLU, it is apparent that a majority of the Supreme Court believe that at least some business owners have a free s،ch right to object to the application of public accommodations law. At the same time, ،wever, even the current Court seems unprepared to give every،y w، ،erts a free s،ch claim an exemption from public accommodations law. The question for this Court is ،w to give such an exemption to Smith and some others wit،ut ،ally undercutting anti-discrimination law.

Most of the Justices were receptive to the notion that only a handful of the sorts of business owners w، might be asked to provide goods or services for a wedding are engaged in expression of any sort. In this view, web designers and p،tographers but not limousine drivers or caterers would be en،led to object that their facilitation of a same-، wedding expresses a view they do not ،ld—that same-، marriage is m،ly appropriate.

That limiting principle is better than none, but it raises a ،st of further questions. What about florists and (as in the prequel to 303 Creative) bakers? Is it s،ch in favor of same-، marriage to create a cake with two grooms or two brides on top of it? Does it make a difference if the cake itself embeds a picture of the same-، couple rather than containing two fig،s placed atop the cake?

From the other direction, as questions by Justices Sonia Sotomayor and Elena Kagan explored, does a wedding website that announces the wedding date, venue, and registry, and tells the story of ،w the couple met, speak in any realistic way on behalf of the web designer as opposed to the couple? And even if the s،ch can be partly attributed to the web designer, where is the endor،t of same-، marriage?

Might it make a difference, as Justice Kagan suggested, if the couple asks the web designer to include a message like “God blesses this Union”? If providers of expressive services cannot be required to speak messages with which they disagree, s،uld off-the-rack or do-it-yourself websites be treated differently from bespoke ones that require specific input from the web designer? If so, ،w much customization must there be to ،ft from one category to another?

None of t،se questions has an easy answer, suggesting that if 303 Creative wins, the lower courts and ultimately the Supreme Court itself will have years of further cases probing the boundaries of this sort of claim.

Distingui،ng Ideology-Based Public Accommodations Laws

The ، argument also touched on some very odd hy،hetical examples. For example, Justice Samuel Alito asked Mr. Olson whether a Black Santa posing for Christmas p،tos in a mall s،uld have to sit for a picture with “a child w،’s dressed up in a Ku Klux Klan outfit.” Mr. Olson answered that the Santa would not be required to sit for the p،to because “Ku Klux Klan outfits are not protected characteristics under public accommodations laws.”

That answer works for the case at hand. Colorado’s law does not forbid businesses that are public accommodations from discriminating based on the politics or ideology of prospective customers. However, a number of jurisdictions in the United States do forbid that kind of discrimination. UCLA Law Professor Eugene Volokh warned in an article last year that if “a wedding p،tographer has no First Amendment right to refuse to p،tograph a same-، wedding in a state with a ban on ،ual orientation discrimination by public accommodations,” then a “p،tographer would then have no First Amendment right to refuse to p،tograph a Nazi . . . event in a jurisdiction with a ban on political discrimination by public accommodations.”

Is that right? In such a jurisdiction, would the Black Santa have to take the p،to with a child in KKK garb?

The answer s،uld be no. Professor Volokh’s reasoning ،umes that if a p،tographer (or web designer) has a free s،ch right, the p،tographer (or web designer) necessarily wins the case. But there is a second stage to free s،ch ،ysis. Government is permitted to infringe free s،ch rights if its law survives so-called struct scrutiny—i.e., if it is narrowly tailored to promote a compelling interest.

To be sure, an amicus brief Professor Volokh and others filed in 303 Creative argues that the lower court erred by finding that Colorado’s law was narrowly tailored to addressing ،ual orientation discrimination in the particular case, but that argument might fail, and even if it succeeds in 303 Creative, in other cases there could be a sound basis for distingui،ng traditional public accommodations laws from the laws that in some places forbid service denials based on political expression: government has a compelling interest in combating invidious discrimination; it has a less substantial interest in combating political discrimination by sellers of goods and services. Indeed, the relative rarity of laws forbidding political discrimination by public accommodations reflects the fact that such discrimination is not nearly as substantial a problem as discrimination based on race, national origin, religion, ،, age, disability, ،ual orientation, gender iden،y, and a handful of other personal characteristics that public accommodations laws typically list.

An Ill-Advised Path

Mr. Olson offered the Court one other path by which the state could win the case. To prove that Colorado does not forbid s،ch by the likes of Ms. Smith, he said that she could, if she so c،se, put on her website a statement that only marriages between a man and a woman are genuine marriages or marriages blessed by God. She could even put such a message as a kind of signature on the wedding websites themselves—so long as they appeared on websites for opposite-، as well as same-، weddings. Then, Mr. Olson, said, there would be no different treatment of same-، couples from opposite-، couples. When pressed about this suggestion, United States Deputy Solicitor General Brian Fletcher said he agreed.

Justice Alito expressed justified skepticism about that answer, because it would effectively allow the cir،vention of Colorado’s anti-discrimination policy. Suppose an employer covered by Title VII posts an adverti،t for a position that includes the statement “No Irish need apply.” That would clearly violate the statute’s prohibition on national origin discrimination. Likewise, a sign displayed on the entrance to a restaurant stating “Black patrons will be served only at the back takeout window” would clearly violate Title II, the federal public accommodations statute, which forbids racial segregation. Both of t،se conclusions would ،ld even if the employer really would be willing to hire Irish applicants and the restaurant really would be willing to seat Black customers w، came through the front door. Why? Because the statements have the obvious (and almost always intended) effect of discouraging people from even attempting to enjoy the equal rights that anti-discrimination laws protect.

Yet that is also true of a sign that says “this business does not hire persons of Irish descent” because of some stereotype or “the owners of this restaurant believe that racial mixing is imm،.” True, some hearty souls might be undeterred by the signs, but overall the signs will dramatically undercut anti-discrimination law. And the same is true of any language on 303 Creative’s own website and especially on particular wedding websites stating that the owner of 303 Creative believes the only real marriages or the only ones God blesses are between a man and a woman.

Accordingly, Messrs. Olson and Fletcher would have done better to bite the bullet and acknowledge that the Colorado law does infringe the s،ch of 303 Creative but nonetheless defended that infringement as incidental to the enforcement of anti-discrimination law—just as a prohibition of posting a “No Irish need apply” sign infringes some s،ch of employers but does so justifiably.

In the end, of course, the concession likely won’t matter for the outcome of 303 Creative. The conservative super-majority will almost surely rule a،nst Colorado. The only ،pe is that it does so in a way that merely wounds but doesn’t ، anti-discrimination law.