By: Derek Jiang
Volume IX – Issue I – Fall 2023
On June 30, 2023, the U.S. Supreme Court handed down its decision in 303 Creative LLC v. Elenis, ruling that under the First Amendment, a web design business open to the public has a constitutional right to deny wedding website services to same-sex couples. For lack of a better word, that decision is wrong. “Profoundly wrong” (Sotomayor, J., dissenting). The Constitution should not tolerate—let alone require—such blatant discrimination.
I. The Court’s Ruling
Lorie Smith, the owner of the graphic design business 303 Creative LLC, hopes to offer wedding website services to aspiring newlyweds. The only problem? Because her sincere religious beliefs inform her that marriage is between one man and one woman, she refuses to create wedding websites for same-sex couples, insisting that same-sex marriages are “false.” Colorado’s Anti-Discrimination Act (CADA) stands in the way, barring businesses open to the public from discriminating on the basis of (among other things) “sexual orientation.” [1] In fear that CADA may be enforced against her in the future, Smith filed a lawsuit in federal court against Colorado, alleging that CADA violated her right to free speech and thus could not be enforced against her. [2]
The six Republican-appointed Justices, emboldened by their numbers, sided with Lorie Smith. Writing for the majority, Justice Gorsuch agreed that the “First Amendment prohibits Colorado from forcing a website designer” to create websites with messages she disagrees with. [3] The majority’s argument goes something like this: Colorado’s “very purpose” in enforcing CADA is to compel speech from Mrs. Smith in order to “excise” dissenting “ideas or viewpoints” about marriage “from the public dialogue.” [4] Enforcing CADA against Mrs. Smith would thus burden her right to “speak freely,” as it might require her to make wedding websites for same-sex couples if she sold wedding websites to the public. [5] Under the First Amendment, the government can never compel speech from an individual, even when there exists a competing “compelling interest” wholly unrelated to speech. Therefore, Mrs. Smith must be able to discriminate against all same-sex couples.
Justice Sotomayor, joined by Justices Kagan and Jackson, issued a fiery dissent, sharply criticizing the majority for opening the door to widespread discrimination in the marketplace and undermining equality for all. “For the first time [in] history,” she wrote, the Court “grants a business open to the public a constitutional right to refuse to serve members of a protected class.” [6] Justice Sotomayor even took the rare step of reading her dissent aloud from the bench. For the reasons I detail below, it is Justice Sotomayor’s position that should have prevailed as the law of the land.
II. The Court’s Faulty Reasoning
The Court begins with the astonishing claim that Mrs. Smith does not discriminate against anyone at all. She will create wedding websites for “anyone,” as long as those websites do not contain content that contradict her views. In other words, she is willing to sell a wedding website to a same-sex couple, as long as the website is not for a same-sex marriage. Mrs. Smith therefore does not discriminate on the basis of sexual orientation, but merely on the “message” or “content” requested.
That logic is plainly absurd and “would be amusing if it were not so embarrassing.” [7] When a same-sex couple approaches a wedding website designer for a wedding site, would they be ordering for their straight friends? Indeed, consider another example: a portrait photographer who offers “whites-only headshots” to “anyone.” The photographer insists, however, that he does not discriminate on the basis of the race of his customers, but rather by the “message” or “content” of the photos. After all, a Black person could in theory purchase headshots for his white friends. Are you beginning to see how preposterous this “message-based refusal” argument sounds? Businesses cannot circumvent anti-discrimination laws by defining their products and services to exclude protected groups. Otherwise, companies offering “business cards for men only” and “epitaphs for Christians only” to “anyone” who wishes to purchase these inherently exclusionary products would pass muster. While claiming to being open to working with “anyone,” Mrs. Smith’s wedding website services for opposite-sex marriages only by definition exclude LGBTQ+ customers, denying them the “full and equal enjoyment” of the goods in the marketplace.
Even if Mrs. Smith does discriminate against same-sex couples, the Court nonetheless finds it problematic that CADA burdens her speech. But are the wedding websites her speech? After all, when you visit the website for “James and Joshua’s wedding” and read the heartwarming line “We love each other more than the world,” do you interpret that as James and Joshua’s speech and message, or that of their unknown web designer? While the web designer undoubtedly contributes greatly to the website, including many expressive elements, the couple ordering the website retains the ultimate creative authority over what messages to include in the website, as it is their love story and their wedding.
The Court attempts to distinguish Mrs. Smith’s case with the aforementioned examples by explaining that Mrs. Smith’s wedding websites involve her “pure speech” rather than “purely factual and uncontroversial information.” [8] The Court clarifies that “purely factual” speech, unlike Mrs. Smith’s “pure speech,” can be compelled. This argument, however, raises more questions than it answers.
Consider a basic wedding website which announces the names of the two people to be married, the date and location of the wedding, a list of attendees, any relevant wedding logistics like food options and parking, and a timeline of the couple’s journey (i.e., “We met in 2015”). Are these details not all indisputable facts? Even if one does not believe in same-sex marriage, it is still objectively true that the couple is getting married and that their wedding is happening. With the odd line the Court has drawn, this basic wedding website is nothing more than “purely factual”—and not “pure speech”—and Mrs. Smith should have no ability to turn away same-sex couples requesting such a site
In protest, the Court claims wedding websites for same-sex couples are “pure speech” because creating one “endorses” same-sex marriages—a message of “political and religious significance” that Mrs. Smith disagrees with. [9] But how is that different from the racist employer who is required by law to speak a nondiscriminatory message when applicants ask if he intends to discriminate on the basis of race? At the height of the civil rights movement, would being forced to endorse racial equality not have been politically and personally consequential to the racist employer? If “pure speech” can never be compelled (as the Court insists), then commercial conduct cannot become “pure speech” simply because it endorses an idea that the speaker objects to. Otherwise, drug and tobacco companies could avoid warning labels by claiming they do not want to endorse the “science” and the “bureaucratic elites at the FDA,” and companies at large would be able to sidestep any regulation even incidentally affecting speech by claiming a First Amendment interest against endorsing particular “messages.”
Ultimately, in the commercial context, it is not clear what “pure speech” even means. Consider one last example: it is generally assumed that a restaurant serving hungry diners does not implicate free speech concerns—let alone “pure speech”—but even a restaurant arguably engages in some speech. A racist restaurant owner still must greet Black customers with “Welcome! How many people are in your party?”—even if his preferred message would be “No Blacks are allowed to dine-in.” Regardless of how greatly it would defy his conscience, he still must serve them, even if he views that act as endorsing the message that Black people deserve to dine-in at restaurants just like white people. Surely, the Court is not condoning Jim Crow-era segregation in traditional public accommodations like restaurants, hotels, and buses. But if not, that raises the question: how expressive must a business’s products and services be to qualify as “pure speech” (thus allowing the business to discriminate on any basis it sees fit)? Where is the dividing line between a wedding website and a restaurant? Are family portraits “pure speech?” What about business cards? Wedding cakes? Flyers and event invitations? The Court does not say where their unpersuasive and confusing logic leads.
This is not to say that government-compelled speech is always constitutional. Not at all. After all, it would be eerily dystopian if a state government could require all citizens to put up lawn signs endorsing a particular political party or to write posts on their personal social media accounts praising policies they passionately disagree with. To that effect, the Court invokes West Virginia State Board of Education v. Barnette (1943), where the Court found that the First Amendment’s freedom of speech protections prohibit public schools from forcing students to salute the flag and recite the Pledge of Allegiance. Such examples of compelled speech are indeed constitutionally suspect. However, while the Court is rightfully concerned about the potential implications of government-compelled speech, the Court’s attempted distinction between “pure speech” and “purely factual” information is perplexing at best and plainly mistaken at worst. The Court is missing something in its analysis.
III. The Piece the Court is Missing
The Court begins and ends its analysis with its claim that government-compelled speech is just not acceptable. Respectfully, the First Amendment analysis is not so simple. Rather, the proper inquiry is “on the character of state action and its relation to expression.” [10] More specifically, under long-standing precedent, a neutral regulation of conduct that merely incidentally affects speech will be upheld if 1) it furthers a “substantial government interest” unrelated to speech, and 2) that interest “would be achieved less effectively absent the regulation” (because the regulation is “essential” to promote that interest). [11] This test is known as the O’Brien standard and is the standard that should have been applied by the Court.
The O’Brien standard originates from the case United States v. O’Brien (1968). In that case, David Paul O’Brien burned his draft card to protest the Vietnam War and was convicted of violating a federal law criminalizing the willful destruction of draft cards. O’Brien’s conduct was “indisputably expressive.” [12] It sent a powerful message about his personal views on political matters of great significance. Yet although political expression lies at the heart of the First Amendment, the Court upheld O’Brien’s conviction. The law is a regulation of conduct that merely incidentally suppresses one form of speech and furthers a “substantial government interest” unrelated to speech (to maintain an effective and efficient draft system for the war) that “would be achieved less effectively absent the regulation” (because there were no alternative means to ensure draft cards would continue to be available). Because the government’s interest or goal was unrelated to speech, “the regulation was subject to a lesser constitutional scrutiny.” [13] The government could not care less whether O’Brien voiced his dissent through other means, as long as he did not interfere with the draft.
The O’Brien standard was reaffirmed more recently in Rumsfeld v. Forum for Academic & Institutional Rights (FAIR) (2006). In FAIR, the Court unanimously upheld a law requiring universities receiving federal funding to give military recruiters “the same access to its campus and students” that other nonmilitary recruiters receive. [14] A group of law schools challenged the law (known as the Solomon Amendment) because they objected to the military’s homophobic “Don’t Ask, Don’t Tell” policy, which barred openly LGBTQ+ people from serving in the military. The schools reasoned that the law infringed on their First Amendment free speech rights because it would require them to create speech in the form of “emails, notices on bulletin boards, and flyers” for military recruiters, just as the schools did for nonmilitary recruiters. [15] And by hosting military recruiters on campus and creating speech promoting their message, the schools argued they were being forced to “endorse” the military, something they found deeply objectionable. The Court nonetheless rejected the school’s argument because the Solomon Amendment regulates conduct (giving recruitment access), furthers a “substantial government interest” unrelated to speech (to raise and support armies), and “would be achieved less effectively absent the regulation” (because there are no places other than college campuses where such universal and broad access to students is available). The regulation’s effect on speech was merely incidental because the school’s speech (e.g., emails, flyers, etc.) was “compelled” only “if, and to the extent, the school provided such speech for other recruiters” as part of providing access to its campus. [16] The government could not care less whether the schools objected to the military’s policies in other ways, as long as they did not interfere with military recruitment.
The O’Brien standard likewise resolves the case at hand. Colorado’s Anti-Discrimination Act (CADA) regulates conduct (selling goods and services to the public) that at most merely incidentally burdens speech, and it furthers the substantial government interest of eliminating discrimination in the marketplace and ensuring equal access to goods and services to all its citizens. That compelling interest is unrelated to the suppression or compulsion of speech and would be achieved far less effectively absent the regulation. By targeting only the “act” of discrimination in the “distribution of publicly available” goods and services, CADA is essential to responding to state’s concern of discrimination and burdens no more speech than necessary. [17]
In response, the Court forcefully asserts that the O’Brien standard does not apply because in their view, CADA’s burden of speech in Mrs. Smith’s case is not incidental. Instead, the Court claims the “very purpose” of CADA is to “eliminate” dissenting “ideas or viewpoints” about marriage “from the public dialogue.” [18] That is an “astonishing,” deeply misguided, and plainly inaccurate view of the law. [19] CADA does not directly regulate or even mention speech at all and applies to all businesses open to the public, regardless of whether their products and services are expressive and regardless of whether the business has any relation to same-sex marriage. Speech is only compelled if, and to the extent, the business offers to sell such speech to others of the public. In other words, in the case of Mrs. Smith’s wedding websites, CADA would “compel” speech not because Colorado wants to coerce her into adopting a particular view or eliminate a particular view from the public discourse, but simply because her products happen to involve words. Mrs. Smith is free to express her views in limitless ways. She may write books and Internet blogs or speak at protests and on TV. She may join organizations and vote for candidates that advocate against same-sex marriage. She may sell non-expressive products that would not force her to endorse anything (e.g., cookies, sunscreen, backpacks). And she may even create expressive products with the phrase “Same-sex marriage is false” (e.g., T-Shirts, banners, a wedding website for a homophobic opposite-sex couple). Colorado does not care. But as a business owner, what she cannot do is engage in the conduct of discrimination in the marketplace. CADA’s command is simple: what a business open to the public sells to some, it must sell to all. That neutral regulation of conduct which merely incidentally burdens some speech easily clears the O’Brien standard, and thus, it is constitutional to enforce CADA against Mrs. Smith.
The Court protests that the compelled speech in this case involves “weighty issues with which [Mrs. Smith] disagrees,” and the Court implies that an “incidental” burden on speech should only be minor. [20] But that reasoning confuses the connotations and common usage of “incidental” with its actual legal meaning. What makes a regulation’s effect on speech incidental is the regulation’s purpose and target, not how severe the burden on speech is. An anti-discrimination law in the context of hiring employees compels the racist employer to speak a nondiscriminatory message to applicants of all races, even if that message is deeply objectionable to him. However “weighty” the issue of equality is to the employer, the burden is merely “incidental” because “it [is] ancillary to a regulation that [does] not aim at expression,” but rather focuses on acts of discrimination in the workplace. [21] As O’Brien v. United States, Rumsfeld v. FAIR, and this anti-discrimination law show, even a neutral regulation of conduct may lead to incidental burdens on speech that are subjectively distasteful.
Notably, applying CADA to Mrs. Smith would not lead to the parade of horribles the Court suggests. The O’Brien standard only applies to regulations of conduct that incidentally burden speech and does not apply to direct regulations of speech, especially those that promote particular content or viewpoints (e.g., forcing students to recite the Pledge of Allegiance or requiring homeowners to put up lawn signs promoting the Democratic Party). Viewpoint- or content-discriminatory regulations that directly aim at speech are presumed to be unconstitutional and must be subject to greater scrutiny. Likewise, CADA only applies to the act of offering publicly available goods and services. It does not prevent businesses from advocating their beliefs in any other manner. Furthermore, Mrs. Smith “need not hold [her] goods or services to the public at large.” [22] Mrs. Smith could circumvent CADA, for example, by only creating wedding websites for friends or members of her church. Yet should she affirmatively choose to offer her services to the public at large as a for-profit business, the State’s content-neutral regulation of conduct simply instructs that she may not discriminate on the basis of protected characteristics.
The Court has long held “the First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech.” [23] By departing from that well-established standard, the Court opens the door to steep and irreversible harm.
IV. The Harm
The effect of the Court’s decision is plain and simple: it gives any business whose goods and services the Court deems expressive enough to constitute “pure speech” an unlimited license to discriminate on any basis it sees fit. All that business has to do is claim it does not want to “endorse” certain messages, even if such messages are synonymous with discrimination (e.g., “Black people don’t deserve to get married”). CADA’s very purpose is to ensure equal access to publicly available goods and services for all citizens, but by carving a giant loophole in the law, the Court permits businesses to deny customers the “full and equal enjoyment” of the marketplace based solely on their protected characteristics. Just consider Mrs. Smith’s wedding website services. Following the Court’s own logic, if Mrs. Smith objects to the marriage of a biracial or multiracial couple and does not want to “endorse” such relationships, she is free to refuse service. What if, instead, she disapproved of disabled couples? Muslim or interfaith couples? Couples which depart from stereotypical gender norms and “traditional family values?” The result is the same.
The harm does not end at wedding websites. The Court’s logic extends equally to any business whose products and services involve “pure speech” (whatever that means). Discrimination in the sale and availability of birth announcements, epitaphs, family portraits, and more may just as easily be in store.
These are not mere hypothetical or abstract concerns. In her dissent, Justice Sotomayor tells the real story of Sherry and Cynthia, a lesbian couple. When Cynthia died from cancer, the cemetery refused to inscribe “beloved life partner”—a relationship of immense significance to both Sherry and Cynthia—on her tombstone. If one strolled by that cemetery today, one would learn that Cynthia was a beloved “daughter, granddaughter, sister, and aunt;” her sacred bond to the love of her life is nowhere to be found, all but erased from history. Consider too the story of Bob and Jack, an elderly gay couple. When one member of the couple died, the only nearby funeral home (in rural Mississippi) had initially agreed to cremate the dead body and host a memorial lunch eulogizing the deceased. Upon learning, however, that the deceased was married to a man, the funeral home backed out entirely, refusing to honor a gay man or even deal with his remains. Grief-stricken, isolated, and desperate, the couple was forced to find a funeral home over 70 miles away. Lastly, consider the headline-grabbing news out of Michigan less than 2 weeks after the Court handed down its decision: a Traverse City hair salon, citing the Court’s ruling, publicly announced that it would refuse service to trans and queer customers. “There are many such stories, too many to tell here. And after today, too many to come.” [24]
But even beyond the tangible harm, the Court’s decision strikes at the core of our dignity and human worth. When James and Joshua are strolling through the shopping mall or browsing online and see the “No same-sex couples served here” sign, how will they feel? That they are inferior. That they do not belong. That their love is not real love. That they are not truly equal nor fully accepted. That there are places where they are not safe, where they must hide their identities for fear of being harassed and treated differently. Even if there exists an establishment next door that would enthusiastically serve them, the ostracization and the rejection—the humiliation and the pain—do not magically disappear. Those scars live on forever. [25]
And what about the child of James and Joshua, who grows up thinking his parents’ love is somehow lesser than the love of other parents? What about the disabled couple who has been denied a birth announcement by the stationer who disapproves of disabled couples having children? What about the female CEO who has been refused business flyers from a flyer maker who believes women “belong in the kitchen?” What about the Asian family turned away by a racist family photographer? These affronts and denials go beyond simply access to particular goods and services; they are stigmatizing injuries that tell people they are societal outcasts, unacceptable and undeserving of the same joys simply because of who they are. To say the government is powerless in the face of such destructive harm offends the very “promise of freedom.” [26]
As Justice Harlan once wrote in his enduring dissent in Plessy v. Ferguson (1896), the Constitution knows of no social “castes.” [27] “In respect of civil rights, all citizens are equal before the law.” [28] And although he was unable to prevent the Court from adopting the infamous “separate but equal” standard and green-lighting Jim Crow laws in the 1896 case, his vision of the Constitution—one of equality for all—ultimately prevailed decades later in Brown v. Board of Education (1954). Unfortunately, today’s Court seems to have forgotten Justice Harlan’s lesson.
V. The Hopeful Future
The Court’s decision is tragic for equality and nondiscrimination. Make no mistake about it. And it may take some time—perhaps even a long time—for the Court to change course. But even so, there is still one glimmer of hope: “The meaning of our Constitution is found not in any law volume, but in the spirit of the people who live under it.” [29] The ultimate choice of whether to engage in invidious discrimination is not determined by six unelected judges unaccountable to the people, but by the millions of business owners throughout America who can decide for themselves “whether to live out the values in the Constitution.” [30] And although I am not usually one for optimism, I remain hopeful that in our free society, the vast majority of us will choose equality and love over discrimination and hate.
The Court concludes its Opinion by preaching that “tolerance” is “our Nation’s answer.” I agree. The only difference is that the Court’s vision of tolerance is one where businesses can deny services to people based on their immutable characteristics, whereas mine is one where people treat each other equally and with dignity, where businesses welcome and celebrate people of diverse backgrounds, and where we accept others without prejudice for who they are—even if we disagree with them. I can only hope my fellow Americans share my vision.
VI. Acknowledgements
I would like to thank Justice Sonia Sotomayor for her powerful and well-reasoned dissent. Many of the ideas in my piece are taken from her, and she deserves so much credit for standing up for what is right. Her words provide fresh hope and a new vision for those feeling defeated by the Court’s decision. I would also like to thank my friends for providing their earnest and helpful feedback after being forced to read my writing. I am truly grateful for all their support and kindness. And above all, I would like to thank all those who have taken the time to read such a long article on such an important topic.
Endnotes
[1] 303 Creative LLC v. Elenis, 600 U.S. ___ (2023)
[2] In court filings, Mrs. Smith claimed that the couple “Stewart and Mike" sought a wedding website from her and that creating a wedding website for them would violate her conscience. The only problem? Stewart is straight, has been married to a woman for over 15 years, and never asked for any wedding website from anyone. The gay couple seems to have been invented out of thin air for a case of imaginary persecution. Although it is unclear whether this would have any legal effect, the story is still noteworthy.
[3] Ibid.
[4] Ibid.
[5] Ibid.
[6] Ibid.
[7] Sotomayor, J., dissenting, in 303 Creative LLC v. Elenis, 600 U.S. ___ (2023)
[8] 303 Creative LLC v. Elenis, 600 U.S. ___ (2023)
[9] Ibid.
[10] Sotomayor, J., dissenting, in 303 Creative LLC v. Elenis, 600 U.S. ___ (2023)
[11] Ibid. (quoting United States v. O'Brien, 391 U.S. 367 (1968))
[12] Ibid.
[13] Ibid. Note: The O’Brien standard applies to a wide range of laws that further substantial government interests unrelated to speech, from prohibitions on murder and arson to compelled testimony due to subpoenas. In each case, the law regulates conduct and furthers substantial government interests that would be achieved less effectively absent the law. Even if such laws incidentally burdened one’s free speech (e.g., preventing the assassination of the President to send a political message), their enforcement is constitutional.
[14] Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47 (2006) (citing 10 U. S. C. §983(b))
[15] Ibid.
[16] Ibid.
[17] Sotomayor, J., dissenting, in 303 Creative LLC v. Elenis, 600 U.S. ___ (2023)
[18] 303 Creative LLC v. Elenis, 600 U.S. ___ (2023)
[19] Sotomayor, J., dissenting, in 303 Creative LLC v. Elenis, 600 U.S. ___ (2023)
[20] 303 Creative LLC v. Elenis, 600 U.S. ___ (2023)
[21] Sotomayor, J., dissenting, in 303 Creative LLC v. Elenis, 600 U.S. ___ (2023)
[22] Sotomayor, J., dissenting, in 303 Creative LLC v. Elenis, 600 U.S. ___ (2023)
[23] Sorrel v. IMS Health Inc., 564 U. S. 552, 567 (2011)
[24] Ibid.
[25] Just as one example, consider disparities in mental health between LGBTQ+ and heterosexual, cisgender people. A survey from the Trevor Project concluded nearly half of LGBTQ+ youth in the year 2022 seriously considered suicide, and 58% of LGBTQ+ youth reported experiencing symptoms of depression. What effect will the Court’s decision have on these statistics?
[26] Sotomayor, J., dissenting, in 303 Creative LLC v. Elenis, 600 U.S. ___ (2023)
[27] Harlan, J., dissenting in Plessy v. Ferguson, 163 U.S. 537 (1896)
[28] Ibid.
[29] Sotomayor, J., dissenting, in 303 Creative LLC v. Elenis, 600 U.S. ___ (2023)
[30] Ibid.