July 5, 2023

303 Creative

“The court handed a major victory to business owners who oppose same-sex marriage for religious reasons [last] Friday. A six-justice majority agreed that Colorado cannot enforce a state anti-discrimination law against a Christian website designer who does not want to create wedding websites for same-sex couples because doing so would violate her First Amendment right to free speech…

“Justice Neil Gorsuch wrote for the majority, in a decision joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett. He explained that Colorado cannot ‘force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.’ And he indicated that the court’s decision would provide similar protection to other business owners whose services involve speech, such as artists, speechwriters, and movie directors.” SCOTUSblog

See past issues

From the Left

The left criticizes the decision, arguing that it will allow discrimination against LGBTQ people and others.

“The decision represents a sea change in First Amendment jurisprudence… The argument that anti-discrimination laws impermissibly compel speech is not new. Private schools resisted desegregation mandates on the grounds that such commands forced them to ‘promote the belief that racial segregation is desirable.’ The Supreme Court rejected those arguments…

“Companies in the 1970s challenged laws requiring the equal admission and treatment of women on the grounds they altered the organization’s character and message. The Supreme Court rejected those arguments as well…

“To paraphrase Justice Oliver Wendell Holmes’ famous utterance, just as my right to swing my fist ends where your nose [begins], a bigot’s right to express their views used to end when it bumped up against the rights of minorities to enjoy equal access to education, employment, and the marketplace. That principle has now been upended.”

Joseph Pace, Slate

The ruling doesn’t necessarily stop at LGBTQ discrimination. It opens the door for discrimination against people based on their race, religion, sex, national origin, and disability. Drawing a line between free speech for people with anti-LGBTQ views and for those who oppose interracial marriage, interfaith marriage, or simply any activity by people of a disfavored group is likely to be impossible…

“[During oral arguments] Justice Ketanji Brown Jackson asked whether a photographer offering nostalgic photoshoots with Santa could restrict his service to white children to preserve a vintage vibe the photographer might aim to capture. The lawyer for the web designer, Kristen Waggoner, conceded not only that his discrimination might be allowed, but also that Supreme Court itself would be forced to draw such lines… The majority’s opinion has opened the door to a kind of economic discrimination the country hasn’t seen in more than half a century.”

Pema Levy, Mother Jones

“While Gorsuch’s opinion approvingly cites Heart of Atlanta Motel v. United States, the seminal civil rights case that held hotels could not refuse service to Black people, it goes on to completely ignore the underlying principle, which is that if a business holds itself out as available to the public, it doesn’t get to pick and choose which members of the public it will serve…

“Sotomayor acknowledges that the majority’s decision creates real-world harm and limitations for LGBTQ people, particularly, but not exclusively, same-sex couples. She points out the majority’s solution is to allow 303 Creative (and other religious businesses) to hold their services out to the public but offer LGBTQ people only ‘a limited menu.’ Sotomayor says that doing so is no different than those restaurants that claimed they didn’t deny service to Black people because Black people could get take-out service from a separate counter. Allowing 303 Creative to provide only a limited subset of its services to same-sex couples is nothing but separate but equal treatment.”

Lisa Needham, Balls & Strikes

From the Right

The right praises the decision, arguing that it protects freedom of speech.

The right praises the decision, arguing that it protects freedom of speech.

“The case was not about whether a business could refuse to provide goods or services but whether it could refuse to generate specific expressions with which it disagreed. Here the parties agreed that ‘all of the graphic and website design services Ms. Smith provides are ‘expressive’’ and that ‘websites and graphics Ms. Smith designs are ‘original, customized’ creations that ‘contribute to the overall messages’ her business conveys.’…

“The 303 Creative case was instead about compelled speech. When could the government require a commercial provider of expressive services to say things she found objectionable? Could the government compel a portrait artist to paint a heroic picture of a white supremacist? Could the government compel a speechwriter to pen an anti-gay screed on behalf of a right-wing politician? Under traditional First Amendment doctrine, the answer was a clear and emphatic no…

“In his majority opinion, Justice Gorsuch stated the case well. ‘In this case,’ he wrote, ‘Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.’ The state does not possess such power. It must not possess such power. Otherwise the culture wars will consume the Constitution, and even our most basic rights to speak or not speak will depend on whether we can gain and keep political control.”

David French, New York Times

“The Supreme Court once flirted with authorizing the government to compel individuals to speak, with disastrous results. In the infamous Minersville School District v. Gobitis decision, the Supreme Court upheld the expulsion of young children from school for failing to pledge allegiance to the flag. In the Supreme Court’s war-influenced view, the government’s interest in national unity allowed it to force young children to speak in violation of both their deeply held beliefs and parental instruction…

“Gobitis unleashed a wave of unprecedented discrimination and violence against Jehovah’s Witnesses. And just three short years later, the Supreme Court reversed course in West Virginia v. Barnette. The court held that there is no single constitutional principle more important than that no government official, however high or petty, should be allowed ‘to prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.’”

Kristen Waggoner and Erin Hawley, Fox News

“In a dissenting opinion, Justice Sonia Sotomayor claimed the decision establishes a ‘license to discriminate’ and ‘threatens to balkanize the market and to allow the exclusion of other groups from many services.’ That fear is overwrought. Ms. Smith and all these litigants say they’re happy to serve gay customers; their objection is to being compelled to affirm a gay wedding. As Justice Gorsuch notes, ‘Ms. Smith herself recognizes that Colorado and other States are generally free to apply their public accommodations laws, including their provisions protecting gay persons, to a vast array of businesses.’”

Nicole Ault, Wall Street Journal

A libertarian's take

“For supporters of these kinds of speech restrictions… LGBTQ couples must never run the risk that anyone will refuse to service their weddings. It’s a matter of dignity, of treating LGBTQ folks with equal respect. And that’s a powerful argument. Yet for Smith, and those who share her beliefs about sexual morality, this is also a matter of dignity, of being permitted to express their true and authentic selves in all facets of their lives. It’s impossible to accommodate both these demands for dignity completely…

“What we can do is settle on a truce that allows each side a reasonable degree of freedom. Religious traditionalists shouldn’t be able to stop LGBTQ folks from getting married or accessing public accommodations such as housing or health care, but civil rights authorities shouldn’t be able to force religious traditionalists to express support for something they oppose. This will not fully satisfy anyone. But sometimes securing rights for yourself means respecting someone else’s right to be grievously wrong.”
Megan McArdle, Washington Post

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