Nina Totenberg, NPR (“Supreme Court says 1st Amendment entitles web designer to refuse same-sex wedding work“):
In a major decision affecting LGBTQ rights, the U.S. Supreme Court on Friday carved out a significant exception to public accommodations laws–laws that in most states bar discrimination based on sexual orientation.
By a 6-to-3 vote, the court sided with Lorie Smith, a Colorado web designer who is opposed to same sex marriage. She challenged the state’s public accommodations law, claiming that by requiring her to serve everyone equally, the state was unconstitutionally enlisting her in creating a message she opposes.
On Friday, the Supreme Court agreed with her. Writing for the conservative majority, Justice Neil Gorsuch drew a distinction between discrimination based on a person’s status–her gender, race, and other classifications–and discrimination based on her message.
“If there is any fixed star in our constitutional constellation,” he said, “it is that the government may not interfere with an ‘uninhibited marketplace of ideas.’” When a state law collides with the Constitution, he added, the Constitution must prevail.
The decision was limited because much of what might have been contested about the facts of the case was stipulated–namely that Smith intends to work with couples to produce a customized story for their websites, using her words and original artwork. Given those facts, Gorsuch said, Smith qualifies for constitutional protection.
He acknowledged that Friday’s decision may result in “misguided, even hurtful” messages. But, he said, “the Nation’s answer is tolerance, not coercion. The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands.”
In a blistering dissent, Justice Sonia Sotomayor said that Lorie Smith’s objection amounts to discrimination against the status of same-sex couples, discrimination because of who they are. Speaking for the court’s three liberal justices, she said, “Time and again businesses and other commercial entities have claimed a constitutional right to discriminate and time and again this court has courageously stood up to those claims. Until today. Today, this court shrinks.
“The lesson of the history of public accommodations laws is … that in a free and democratic society, there can be no social castes. … For the ‘promise of freedom’ is an empty one if the Government is ‘powerless to assure that a dollar in the hands of [one person] will purchase the same thing as a dollar in the hands of a[nother].’”
I simultaneously think that the majority got the result right but that, because of the facts of the case, it provides little in the way of useful guidance going forward. The experts seem to agree, at least on the latter.
Jenny Pizer, chief legal officer for Lambda Legal, called the decision limited.
“This decision says that the laws apply effectively to everyone but doesn’t apply to this type of business, and I think there’s an enormous question moving forward,” she said. “How is this going to be applied to the range of goods and services.” that involve “some customizing, and arguably some artistry, depending on the eye of the beholder.”
So, what about a cemetery that refuses to engrave a headstone with the words “beloved partner,” or a web designer asked to simply announce the time and place for a same-sex wedding, or a tailor who refuses to make a suit for a same sex groom? Or what about the dressmaker who refused to make a gown for Melania Trump to wear at her husband’s inauguration in 2017?
Michael McConnell, director of the Stanford Center for Constitutional Law, wrote about that question in academic book chapter, and the Washington post wrote about it.
“Virtually everyone interviewed for a Washington Post story thought it was extremely important that this dress designer was able to refuse to create a gown for the Trump inauguration,” McConnell said in an interview with NPR. “And I don’t think a tailor is different from a dressmaker,” he added.
“Justice Gorsuch in his majority opinion characterizes these as a sea of hypotheticals,” observes Brigham Young University law professor Brett Scharffs. “What he had to say is that these cases are not this case.”
University of Virginia law professor Douglas Laycock says there likely will be many follow-up cases, probing the outer boundaries of Friday’s court decision. But, he says, “the core of this is you can’t be compelled to use your creative talents in service of speech that you fundamentally disagree with. That’s a pretty clear category.”
“My prediction is that we will not see a lot of these cases” says Yale law professor William Eskridge, who has written extensively about gay rights. “Most religious people, including fundamentalist people, do not want to discriminate against LBGTQ persons, particularly in their commercial businesses,” he says. And most LGBTQ don’t want to sue.
Indeed, Lorie Smith is hardly the only website designer in the country. There’s no shortage of highly talented people who would have been happy to design this website. Why go through the trouble and expense of suing rather than just moving on to someone else?
While this case has been cast as yet another case of religion being allowed as an excuse for bigotry, it actually involves the Freedom of Speech clause of the First Amendment, not the Free Exercise Clause. The Supreme Court, regardless of its ideological composition, has been adamant since West Virginia State Board of Education v. Barnette (1943) that government can’t compel citizens to engage in speech with which they disagree. That case involved the state requiring school children to salute the flag each morning. Subsequent cases have, for example, upheld the right to cover up the state’s “Live Free or Die” motto on a license plate.
Now, this particular case is different in that it was reasonably argued that Smith was operating a public accommodation. But the distinction at work is the same as it was in the Masterpiece Cakeshop case: this was judged to be a creative work that could be seen as the creator’s expression.
A baker can no more refuse to sell cakes to gays than he can to Blacks. But he can refuse to write custom messages that he disagrees with. Ditto a website designer.
It’s noteworthy, as David French points out, that “the majority opinion was written by the same justice, Neil Gorsuch, who wrote the majority opinion in Bostock v. Clayton County, which extended the reach of Title VII to protect gay and lesbian Americans from employment discrimination.”
This case is emotionally charged because the creator in question is seen by many as a bigot because the “victim,” as it were, is part of a group that faces significant discrimination and is fighting to end that.
So, let’s take both religion and protected class out of it.
Should the hypothetical dressmaker above be allowed to refuse to make an inauguration gown for Melania Trump? I would hope so.
Should a baker be allowed to refuse to make a MAGA cake? I would hope so.
Should a website designer be allowed to refuse to create a website for the local chapter of the Ku Klux Klan? I would hope so.
