Today’s post responding to that ruling is from guest contributor Professor Leslie Griffin, who is the William S. Boyd Professor of Law at the University of Nevada, Las Vegas, School of Law. Professor Griffin, who also has a doctorate in Religious Studies and was on the faculty of the Theology Department at the University of Notre Dame, Indiana, is a leading expert on the intersection of religion and law. She has filed several amicus curiae briefs with the U.S. Supreme Court on religious liberty cases.
I’d like to sell you a website. That is my business. But I don’t want to sell it to you because you’re gay, or lesbian, or transgender, or female, or Black, or Jewish, or Muslim, or Asian, or Atheist, or Hispanic, or old, or disabled—or Catholic. The public accommodations laws say I cannot make that choice. They say that the marketplace has to be open to all customers without discrimination. The anti-discrimination laws protect the ability of everyone to do business equally with one another. Otherwise, White businesses could still refuse Black customers, as they did in the past. These laws are a key part of our life of living together.
The majority of the U.S. Supreme Court just disagreed with that fundamental idea in the case, 303 Creative v. Elenis. They ruled free speech is more important than the anti-discrimination laws. An opinion by Justice Neil Gorsuch said designing websites is expressive speech, and therefore the government cannot compel Lorie Smith, the web designer in the case, to provide websites to same-sex couples. The majority said it was okay for her to provide marriage sites for heterosexual couples, but refuse same-sex ones, even though Colorado law forbids discrimination on the basis of sexual orientation in the Colorado Anti-Discrimination Act (CADA).
Some commentators think the opinion is a narrow, correct reading of the law. I disagree. I think everyone, including you, should join together in rejecting its reasoning. The public accommodations laws protect everyone’s ability to go to any business and buy their products. They give equality to everybody.
That is why Justice Sonia Sotomayor’s dissent is so much better than Justice Gorsuch’s majority opinion. She says the majority’s opinion is “[p]rofoundly wrong.” She is right. It is.
Justices Sotomayor, Kagan and Jackson
Justices Elena Kagan and Ketanji Brown Jackson joined Sotomayor’s dissent. In the past, they noted, the Court had defended the anti-discrimination laws. However, Sotomayor wrote, “Today, the Court shrinks.” Here is her powerful language about what the Court has done:
“Today, 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. Specifically, the Court holds that the First Amendment exempts a website-design company from a state law that prohibits the company from denying wedding websites to same-sex couples if the company chooses to sell those websites to the public. The Court also 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.’”
Re-read that first sentence. That is what this case is about. The Court found a way to say it is legal for businesses to discriminate on the basis of sexual orientation.
Sotomayor explains what the public accommodations laws protect: “All members of the public are entitled to inhabit public spaces on equal terms.” Those laws are about “equal access” and “equal dignity.” Think about “White Applicants Only” or “No Blacks, No Muslims, No Gays.” Or the Jim Crow laws, which blocked Black access to business. Or “No dogs or Jews allowed.” I am especially aware of the Court’s 1984 conclusion that commercial discrimination against women is prohibited. “A shopkeeper has no constitutional right to deal only with persons of one sex,” concluded Justice Sandra Day O’Connor in that 1984 opinion.
Sotomayor provides the numerous examples of what the accommodations laws are supposed to do:
“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.
“[Under the majority’s reasoning,] [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, she asks, why couldn’t a website designer refuse to create an interracial website, because “Almighty God did not intend the races to mix”?
Sotomayor realizes that forcing some individual customers to survey the town looking for someone who will do business with them does not protect equal access and equal dignity. Traveling out of town because the local funeral parlor will not help you is not equality. As she explains, “LGBT people do not seek any special treatment. All they seek is to exist in public. To inhabit public spaces on the same terms and conditions as everyone else.”
303 Creative is a free speech case, not a free exercise of religion case. That is why I think the opinion is broad and not narrow. Anyone can make a free speech claim. The majority and the dissent disagree about speech. Sotomayor shows that Gorsuch is wrong in protecting this web designer’s speech as broadly as he does when he concludes that Smith is engaged in free expressive speech that the government may not limit. Instead, she explains, this case is about the conduct of selling something. Anti-discrimination laws on such conduct only incidentally burden speech, which the free speech law allows.
The next case is about a bakery refusing to provide a wedding cake to gay people, which must now be reviewed in light of 303 Creative. Is baking a cake really speech? 303 Creative leaves open just how much conduct the Court majority will now view as free speech and how much freedom such speakers will now enjoy to discriminate.
This 303 Creative opinion sent a terrible message on the last day of Pride Month. As Sotomayor wrote:
“It sends the message that we live in a society with social castes. It says to the child of the same-sex couple that their parents’ relationship is not equal to others’. And it reminds LGBT people of a painful feeling that they know all too well: There are some public place where they can be themselves, and some where they cannot.”
What will happen in response to this decision? Sotomayor worries LGBTQ people will face “violent victimization” as this case encourages discrimination, and tells gay and lesbian people that they have “second-class status” in this country.
The United States Conference of Catholic Bishops wrote an amicus brief supporting Lorie Smith’s argument, while lay Catholics wrote a brief on the state of Colorado’s side. New Ways Ministry’s Executive Director, Francis DeBernardo, signed the lay brief. DeBernardo also wrote a post about how the case “Greatly Wounds People of Faith and Entire Nation” right after the opinion was released.
DeBernardo was right. The public accommodations laws are supposed to protect everyone, including Catholics, from discrimination. But this opinion opens the door, giving freedom to many people to discriminate. As a woman, I do not want businesses to have the freedom to close the door to me. Catholics should not want the door closed to them. It could happen. If you can discriminate against one, you can discriminate against another. The Court’s majority makes it your free speech choice to do so.
I agree with Justice Sotomayor, who was also raised Catholic: “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.”
If they can come for gay and lesbian people, they can come for you. That is why we all must unite to oppose invidious discrimination wherever it occurs. Free speech should not keep the state from promoting the anti-discrimination laws. Equality is what we are all about in this nation.
—Leslie C. Griffin, July 5, 2023