By Noah Feldman / Bloomberg Opinion
In a defeat for equal rights, the Supreme Court has ruled that a Christian website designer may refuse to make wedding websites for gay couples, despite a Colorado civil rights law that prohibits discriminating against gay people in your business. The 6-3 decision, written by Justice Neil Gorsuch, broke down along this court’s standard ideological lines. It is yet another victory for the conservative majority and should be seen as part of the court’s sharply rightward turn.
The decision is not only bad for gay people who want to have a wedding website made in Colorado. From a legal perspective, there is exactly zero difference between civil rights laws protecting gay people and laws protecting Black people. Under Friday’s decision, the web designer could have refused to make a website for an interracial or interfaith wedding.
The core issue in the case, 303 Creative v. Elenis, is the conflict between the twin constitutional values of equality and liberty.
States, like the federal government, have a compelling interest in protecting equality by passing anti-discrimination laws. Since the 1964 Civil Rights Act, such laws have been the bulwark of both federal and state protection of people vulnerable to discrimination. These laws normally outlawed discrimination in what are called “public accommodations,” meaning restaurants, hotels or other businesses that are open to the public; many of which were racially segregated in the Jim Crow era.
Under Colorado’s civil rights law — a pretty standard one — the web designer’s business counts as a public accommodation. She advertises her business to everyone. Under ordinary equality principles, for her to refuse to make a wedding website for a gay couple, even though she would make one for a straight couple, is a violation of gay customers’ equal rights.
From the standpoint of liberty, however, the web designer’s First Amendment free speech rights conflict with her obligation under Colorado law to serve all customers equally. The majority opinion held that the making of the website was “pure speech.” And in constitutional law, pure speech gets the highest degree of protection. (The justices only considered the web designer’s free speech rights, not her free exercise of religion rights. The court had ducked both issues a few years back when it considered the similar case of a wedding cake baker, also in Colorado.)
Faced with this conflict of rights, the U.S. Court of Appeals for the 10th Circuit had held that equality must win. Your First Amendment rights aren’t absolute. The government can breach them if it has a compelling interest in doing so — like ensuring equal access to public accommodations — and has adopted narrowly tailored means to do so.
Gorsuch and the conservative majority disagreed and reversed the 10th Circuit’s decision. The justices acknowledged a compelling state interest in outlawing discrimination. But the court held that this wasn’t sufficient to overcome the web designer’s free speech rights.
It relied on several precedents, including the 2000 decision Boy Scouts v. Dale, which held that the Boy Scouts of America were permitted to exclude a gay Scoutmaster by virtues of their right to First Amendment expressive association.
Remarkably, the majority never said directly that Colorado’s anti-discrimination law wasn’t narrowly tailored to achieve the state’s compelling interest. Instead, the court seemed to be holding that, when it comes to compelled speech, the usual test doesn’t fully apply.
Gorsuch wrote that if the anti-discrimination law applies to the web designer, “the government may compel anyone who speaks for pay on a given topic to accept all commissions on the same topic; no matter the underlying message.” That was enough for Gorsuch to conclude that the First Amendment created an exemption from the civil rights law.
That’s not good; either for civil rights laws or, in the long run, for the First Amendment. If free speech can be used as a cover for discrimination, people who care about equality will think that free expression isn’t valuable.
In dissent, Justice Sonia Sotomayor — who was also the principal dissenter in the affirmative action cases decided Thursday — argued that the court could have applied a lower standard of scrutiny to speech in civil rights cases. She pointed out the general rule that, when a law is targeted at conduct, like discrimination, and only incidentally affects speech, the courts are supposed to apply what’s called intermediate scrutiny. Under that standard, the civil rights laws would have trumped free speech.
Gorsuch replied in a footnote that “there is nothing incidental about an infringement on speech when the public accommodations law is applied peculiarly to expressive activity.”
As a scholar of First Amendment law, I’m not sure what that is supposed to mean; except that the court is choosing to ignore the “incidental burden” test when it doesn’t like the result it would produce. Discrimination is a form of conduct, not speech, even though speaking is sometimes part of how people discriminate.
The result is to severely undercut not only LGBTQ+ rights, but all civil rights laws. It opens the door for, say, a racist hotel or restaurant chain to claim that it is really a membership club for expressive association; and that it won’t allow Black guests. That would flatly reverse the gains won by the lunch-counter sit-ins of the civil rights movement.
The Supreme Court has led the First Amendment further down the path to a disastrous conflict with civil rights. That’s bad for civil rights. And in the end, it will be bad for free speech, too.
Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “The Broken Constitution: Lincoln, Slavery and the Refounding of America.”
Talk to us
> Give us your news tips.
> Send us a letter to the editor.
> More Herald contact information.
