The Supreme Court announced on Tuesday that it will decide whether civil rights laws violate the First Amendment when they “compel an artist to speak or stay silent.” By doing so, the court formally commenced its long-delayed project of dismantling non-discrimination laws that protect LGBTQ people. But it is not at all clear that the court will stop at LGBTQ protections. Rather, the justices have indicated that they may take a wrecking ball to the edifice of civil rights law, dismantling the constitutional foundations of non-discrimination in public accommodations.
Tuesday’s grant marks a victory for the conservative campaign to undermine LGBTQ equality by granting businesses a right to discriminate. This campaign nearly succeeded in 2017’s Masterpiece Cakeshop v. Colorado Civil Rights Commission, which contested Colorado’s ability to penalize a baker who refused to provide wedding cakes to same-sex couples. But in an opinion by Justice Anthony Kennedy, the Supreme Court did not decide whether this penalty violated the baker’s free speech. Instead, Kennedy punted, holding that the state evinced unconstitutional hostility toward the baker’s religion.
Now the court will answer the question left open in Masterpiece Cakeshop: Whether the government can require businesses to make “art” for same-sex weddings. The new case, 303 Creative v. Elenis, involves a Colorado graphic designer named Lorie Smith who refuses to create websites for same-sex couples. Off the bat, it’s important to note that Smith has not been asked to make a wedding website for a same-sex couple; indeed, she does not yet make wedding websites at all. (Her portfolio focuses on churches and Republican politicians.) But she plans to make such websites in the future—and when she does, she intends to turn away potential same-sex customers.
Rather than await a conflict that may never come, Smith teamed up with Alliance Defending Freedom, an anti-LGBTQ law firm, to proactively sue Colorado. ADF asserts that the state may one day punish Smith for discriminating against gay people, and that this threat alone violates her First Amendment rights. It even produced a gauzy promotional video for the lawsuit. When the 10th U.S. Circuit Court of Appeals ruled against Smith, ADF rushed to the Supreme Court, where it hoped to wind up all along.
So 303 Creative is a test case. And, in fairness to ADF, it’s a clever one, because it centers on actual speech—the creation of a website, which is undoubtedly a form of expression. In Masterpiece Cakeshop, the justices got bogged down in a debate about whether baking cakes qualifies as “speech” under the First Amendment. During oral arguments, Justices Ruth Bader Ginsburg and Elena Kagan prodded ADF’s attorney to explain who, exactly, constitutes an “artist” with a right to deny service. A florist? A jeweler? A hair stylist? A makeup artist? A tailor? A chef? Whose services “communicate” a “message” (triggering the First Amendment), and whose don’t? ADF could not draw a cogent line. But everyone agrees that website design is speech. And that makes 303 Creative the perfect test case for this Supreme Court, because it can strike a pose of modesty while laying the groundwork for a revolution against civil rights laws.
This process may have already begun. In taking up a new case, SCOTUS sometimes rewrites the question presented to frame the case more narrowly—or broadly. Here, it wrote a question that frames the free speech issue in sweeping terms: “Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.”
In one sense, this question may disappoint ADF. The group teed up 303 Creative as a double-whammy, asking the Supreme Court to cut back non-discrimination statutes and overturn Employment Division v. Smith, which strictly limited religious exemptions under the free exercise clause. But using this case to topple Smith was always a longshot; it’s a free speech case with a free exercise claim grafted on, because ADF has nothing to lose at this Supreme Court. The organization should be pleased that, while shaving off the religious liberty claim, SCOTUS turbocharged the free speech claim, framing it in terms that imperil all civil rights laws.
It did so in two ways. First, the court spoke not of a website designer but of “an artist,” signaling that while its decision will apply to a company that makes websites, its reasoning will stretch far beyond Smith. The baker, the florist, the photographer, the jeweler, and hair stylist: All call themselves “artists” who “speak” through their work. All could claim a right under 303 Creative to turn away clients who ask them to “communicate” messages they dislike. And all will likely prevail under the rule that the conservative supermajority seems poised to announce.
Second, the court invoked its compelled speech doctrine, describing non-discrimination laws as an effort to “compel” artists “to speak or stay silent.” For decades, SCOTUS has resisted this conceptualization of civil rights laws as compelled expression. It has instead described such measures as regulations of conduct with “some incidental abridgment” of speech, which is justified by the government’s “compelling interest in eradicating discrimination” in public accommodations. “The Constitution does not guarantee a right to choose employees [or] customers,” the court explained, “without restraint from the State.” Even though laws barring workplace discrimation suppress free speech, such measures should still be “analyzed as one regulating the employer’s speech rather than conduct.”
303 Creative is on a collision course with this principle. It has reframed basic non-discrimination laws like Colorado’s as a mandate that artists “speak or stay silent.” The traditional view of these statutes as regulations of conduct with incidental, justifiable abridgments of speech is already fading away. Justices Clarence Thomas and Neil Gorsuch provided a preview of this approach in a concurrence to Masterpiece Cakeshop, describing Colorado’s public accommodations law as a direct attempt to “punish protected speech.” Thomas and Gorsuch went further, arguing that the government has no compelling interest in protecting people from the “stigma” and “humiliation” of discrimination that takes the form of speech. A majority of the court may be prepared to embrace this principle.
It’s worth noting, too, that 303 Creative is not limited to same-sex couples. The court did not invoke artists who refuse to speak about a same-sex wedding, but artists who refuse any speech on any grounds. In theory, the majority could relegate gay people to second-class status under civil rights law, holding that states have a lesser interest in protecting them than, say, women or racial minorities. (Donald Trump’s Justice Department argued just that.)
But, again, the question presented is not limited to the application of these laws to same-sex couples. If ADF prevails, businesses may secure a right to discriminate against anyone as long as their work involves speech. A racist photographer could refuse to shoot an interracial wedding. An antisemitic florist could refuse to provide flowers to a Bat Mitzvah. A hairdresser could refuse to serve Black people. A chef could refuse to cater a quinceañera. The list goes on; every commercial transaction involves expression, and every civil rights law is enforced through compelled speech. If a business’ First Amendment rights outweigh the government’s interest in ending discrimination, few non-discrimination laws will be safe from constitutional attack.
The best case scenario in 303 Creative is likely that the majority gerrymanders its decision to legalize discrimination against gay people only. The worst-case scenario—and the more probable one—is that the majority incinerates precedent upholding non-discrimination protections and establishes a new regime that subjects civil rights enforcement to strict First Amendment scrutiny. On its face, this case is a culture war clash over the scope of gay rights. But just beneath the surface lies a poisonous presumption about the supremacy of speech over equality that may destroy the government’s authority to keep the marketplace open to all.
by Mark Joseph Stern