Andrew Harnik/AP Photo
Lorie Smith, a Christian graphic artist and website designer in Colorado, right, accompanied by her lawyer, Kristen Waggoner of the Alliance Defending Freedom, second from left, speaks outside the Supreme Court in Washington, December 5, 2022.
In 303 Creative v. Elenis, the Supreme Court has now declared for the first time that some for-profit businesses have a constitutional right to discriminate against anyone for any reason they like. Its opinion in the case is startlingly vague about the boundaries of that category. While the Court might have clearly limited the scope of its decision, some members of the Court—including Justice Neil Gorsuch, who wrote the Court’s opinion—are drawn toward broad and dangerous specifications that can only be applied selectively to benefit claimants whom the judges happen to like.
303 Creative v. Elenis concerns Lorie Smith, who owns a graphic design firm. She wants to expand her business to include custom-designed wedding websites, but she opposes same-sex marriage on religious grounds. Unwilling to design sites for same-sex weddings, she wants to say that on her own promotional website.
The Colorado Anti-Discrimination Act (CADA), however, bans businesses that are open to the public from discriminating against gay people or announcing their intent to do so. She sued the state, seeking a preemptive ruling that law couldn’t be applied against her. Justice Neil Gorsuch, writing for the majority, agreed: First Amendment free speech means that law may not “compel an individual to create speech she does not believe.”
The Supreme Court lays down constitutional rules that are binding on lower courts and, ultimately, on citizens. In 303 Creative, it made new law. What are the rules now? Some businesses have a constitutional right to discriminate against potential customers. Which ones?
Faced with what he called a “sea of hypotheticals about photographers, stationers, and others,” Gorsuch conceded that “determining what qualifies as expressive activity protected by the First Amendment can sometimes raise difficult questions.” Here, though, he wrote, no one disputes—indeed, the parties stipulated—that “Ms. Smith seeks to engage in expressive activity.” By relying on that stipulation, Gorsuch was able to write an opinion that said nothing about the boundaries of the protected category.
At the conservative legal blog The Volokh Conspiracy, Dale Carpenter optimistically argues that the case lays down a narrow rule. In order to be entitled to discriminate, a vendor’s product must be both customized and expressive, constituting the vendor’s own expression, and the objection must be “to the message contained in the product itself, not to the identity or status of the customer.” If he is right, the decision applies only in very narrow circumstances. Most expressive products, such as books, are not customized, and most customized products, such as cooked-to-order hamburgers, are not expressive.
Carpenter points to guidelines that, in a series of amicus briefs, he and Eugene Volokh have proposed to the Court. At the margins, there should be “intensely fact-bound judgments … based on what has historically counted as expressive (e.g. parades, books, paintings, and films) and based on the use of intrinsically or inherently expressive elements in the work (e.g., speaking, writing, and deploying symbols).” In one of those briefs, they explain that protection should depend on whether expression “falls within a generally expressive medium,” a medium that “has historically and traditionally been recognized in the law as expressive.”
303 Creative is perhaps best understood as one of a series of decisions laying down massively overbroad rules with anarchical implications.
But the Court did not embrace those limitations. There is evidence that Gorsuch had something else in mind—which may explain why he wrote such a vague opinion. In a 2018 case, Masterpiece Cakeshop v. Colorado, a bewildering proliferation of free-speech claims were made on behalf of a baker who would not sell a wedding cake to a same-sex couple. He wasn’t asked to write the words “God Bless This Wedding” on their cake or design it to depict two grooms. He refused to serve them before he knew anything about what they wanted. Website design is obviously speech. But food preparation?
Gorsuch joined Justice Clarence Thomas’s concurrence, which argued wedding cakes are inherently expressive: “a wedding cake needs no particular design or written words to communicate the basic message that a wedding is occurring, a marriage has begun, and the couple should be celebrated.” By Thomas’s logic, it does not matter whether the cake is customized. The baker had a right to refuse to sell a premade wedding cake that he already had on his shelf.
It is true that the baker’s actions had some communicative significance. So does almost everything that people do. The Court has, however, rejected “the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.” It has been settled for more than half a century that government can regulate conduct that communicates if its interest is unrelated to the suppression of the message, and if the impact on the communication is no more than is necessary to the government’s purpose. Discrimination laws easily satisfy these requirements.
Thomas had two responses to this difficulty. One is to claim that in this case, compliance with the law amounts to a kind of compelled speech: “Forcing Phillips to make custom wedding cakes for same-sex marriages requires him to, at the very least, acknowledge that same-sex weddings are ‘weddings’ and suggest that they should be celebrated—the precise message he believes his faith forbids.” But this claim is limitless. It can’t possibly be true that one has a right to disobey laws whenever compliance might be taken to convey a message of agreement with them. There is no free-speech right to ignore the traffic laws, even if you think that those laws are stupid and that everyone should get to drive where and how they want.
Every time a vendor provides someone with goods and services without discriminating, that act has communicative significance. Take the familiar case of the restaurant that would not serve Black customers. It’s the paradigm of wrongful discrimination, the core case of what the law prohibits. The presence of Black people eating lunch at Ollie’s Barbecue in Birmingham in 1965, sitting at a table next to white people, sent a message that Ollie didn’t like.
Thomas’s second strategy is to emphasize that the normal rule of deference to regulations of expressive conduct “does not apply unless the government would have punished the conduct regardless of its expressive component.” The injury the state aimed to prevent was not absolute unavailability of wedding cakes to gay couples—other bakers were available—but the “humiliation, frustration, and embarrassment” of being turned away on the basis of a protected characteristic. That has been a settled purpose of antidiscrimination law for half a century, but Thomas thinks it is impermissible: “States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified.” The same claim could be made against all discrimination laws.
Gorsuch revived that theme in 303 Creative. His opinion repeatedly cites a strange, silly statement in the poorly reasoned decision of the Tenth Circuit, which Smith was appealing from. That court, after acknowledging that there is a risk of excising some ideas from the public dialogue, said, “Eliminating such ideas is CADA’s very purpose.” Gorsuch calls this a “finding,” even though courts of appeals are not permitted to find facts (that is the trial court’s job) and this one wasn’t found by the trial court or stipulated by the parties. He then accuses Justice Sonia Sotomayor’s dissent of “approving a government’s effort” to accomplish that purpose. A law is invalid if it seeks to accomplish an impermissible end. His claim implies that all antidiscrimination laws are unconstitutional in all their applications.
Of course, the Court is not going to say that. 303 Creative is perhaps best understood as one of a series of decisions laying down massively overbroad rules with anarchical implications that cannot possibly be followed consistently. The real rule would then be neither Carpenter’s nor Thomas’s, but a third one: liberty granted selectively without explanation, to the benefit of claimants such as conservative Christians who affiliate with the Republican Party.
