Editor’s Note: Timothy Holbrook is the Asa Griggs Candler Professor of Law at Emory University School of Law. He will join the faculty of the University of Denver Sturm College of Law this summer. The views expressed in this commentary belong to the author. View more opinion at CNN.
When I moved to Colorado from Georgia recently, I was looking forward to living in a state that sought not only to protect LGBTQ people from discrimination but also to celebrate them, in contrast to recent efforts in my former state of Georgia to further marginalize our community. Sadly, the Supreme Court has blocked Colorado’s efforts to redress this history of discrimination. More tragically, the court has now opened the door to using the Constitution’s protection for free speech as a tool to eviscerate wide swaths of non-discrimination protections across the nation.
In 303 Creative LLC v. Elenis, the Supreme Court ruled Friday in favor of Lorie Smith, a webpage designer in Colorado who refuses to create wedding websites for same-sex couples, citing her religious objections. The Supreme Court’s 6-3 decision, split along ideological lines, weakens the rights of the LGBTQ community and potentially opens the door to broader discrimination.
Although Smith had not begun creating her bespoke webpages, she planned to offer her services to the general public. Even though Colorado law bans discrimination on the basis of sexual orientation and gender identity, Smith made clear that she would not create webpages for same-sex marriages.
The majority of the court, in an opinion authored by Justice Neil Gorsuch, concluded that because her webpage designs were expressive, Smith was protected by the First Amendment and thus exempt from Colorado’s anti-discrimination law. The non-discrimination protections, in the majority’s view, would compel speech from Smith that contradicted her opposition to same-sex marriage. Colorado’s interest in creating a non-discriminatory commercial marketplace was insufficient to trump Smith’s free speech rights.
The majority gestured to the importance of non-discrimination in places of public accommodation, noting that there is a compelling interest in eliminating discrimination in these contexts. The court nevertheless concluded that public accommodations laws are not exempt from the limits of the First Amendment, and Smith’s free speech rights trumped the state’s non-discrimination interests.
Although many view 303 Creative LLC v. Elenis as a religious freedom case, it is far broader. Smith’s objections to same-sex marriage are religiously based, but that is irrelevant to the decision because her claim was based on free speech. That means her objections, or anyone else’s, could be for any reason, including outright prejudice. As such, this decision opens the door to the erosion of anti-discrimination laws of all sorts.
Justice Sonia Sotomayor recognized this potential. In her dissent, she noted the decision “threatens to balkanize the market and to allow the exclusion of other groups from many services.” No one is forcing Smith to open her business. As Justice Sotomayor observed, “if a business chooses to profit from the public market, which is established and maintained by the state, the state may require the business to abide by a legal norm of nondiscrimination.” In other words, Smith and others “opt into the non-discrimination laws that attach to public accommodations.”
This decision now opens the door for businesses to frame their activities as expressive to be exempt from state and potentially federal non-discrimination laws. Of course, not every business could easily do so. It is hard to see how a company selling hamburgers could claim expression in their services.
But what about a catering company, for instance? Could they refuse to cater a same-sex wedding, or an interracial marriage, because doing so would compel speech from them? Are there expressive choices and messages in the food they create? That may not seem like speech to many, but this Supreme Court has taken a broad perspective on what qualifies as speech. Acts and symbols, such as flag burning, the wearing of arm bands, parades, topless dancing, donations to political campaigns, and, in this case, designing a webpage, can constitute protected speech. Minimally, the court has, with this case, opened the door to this strategy for businesses to discriminate on any basis, including race.
Of course, it may be that legally, racial discrimination in the United States is different than sexual orientation and gender identity discrimination. In fact, the US Court of Appeals for the Fifth Circuit recently stated this to be the case in the context of religious liberties. In Braidwood Management, Inc. v. Equal Employment Opportunity Commission, the Fifth Circuit held that religious liberty protections exempted a religious employer from a federal law banning discrimination on the basis of sexual orientation or gender identity.
The Fifth Circuit expressly recognized that eliminating racial discrimination is a compelling state interest that may outweigh religious liberty, but it expressly refused to place LGBTQ discrimination on equal footing. The court reasoned that “[a]lthough the Supreme Court may some day [sic] determine that preventing commercial businesses from discrimination on factors specific to sexual orientation or gender identity is such a compelling government interest that it overrides religious liberty in all cases, it has never so far held.” Thus, in that court’s view, race is different.
Our nation’s tortured racial history may justify such treatment. Examples like the enslavement of humans, Jim Crow, the subordination of Native Americans and the forced internment of US citizens of Japanese descent all come to mind. And there are more.
But even if race is justifiably different, it does not then follow that remedying historical discrimination against the LGBTQ community should not also be a compelling state interest, especially when someone makes a choice to enter into the commercial marketplace.
As Sotomayor warned, “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.” In 303 Creative, it was LGBTQ people. Who might be next? Racial groups? Religious minorities? People with disabilities? Only time will tell if the decision opens the door to discrimination against other disfavored groups.