A Constitutional Right To Discriminate?

As the Supreme Court opens its new term this week, it is poised to decide a case that threatens to take the country backward decades, to constitutionalize bias in public commerce, and to amplify the deep polarization plaguing our society. At issue in 303 Creative v. Elenis, No. 21-746, is whether a business can invoke the First Amendment’s protections of freedom of speech to justify refusing services to certain groups of customers—in that case website design for the weddings of same-sex couples—notwithstanding public-accommodations laws that bar such discrimination.

The constitutionality of public-accommodations laws long has been settled. But tension between those laws and the First Amendment has been building as the Supreme Court has taken increasingly aggressive views of free speech and religious liberty and increasingly indifferent views of discrimination against historically-disadvantaged groups. Four years ago, the Court faced a controversy involving a Christian baker who refused to sell a cake to a same-sex couple celebrating their wedding, with the baker claiming that making him do so would violate both his free-speech and religious-liberty rights. The Court avoided deciding those issues in what likely was a political compromise amongst the justices. Since then, however, it has gained two conservative members—Justices Brett Cavanaugh and Amy Coney Barrett—and conservative advocacy groups have been pushing to return these issues to the Court.

Allowing businesses to invoke free speech or religious liberty to refuse services to targeted customers would mark not only a grievous endorsement of bias but also could undo much of our social compact. A wide range of products and services include expressive elements, including art, music, photography, clothing, furniture, websites, printing, architecture, interior design, tattooing, haircutting, food and flowers. And many people hold religious beliefs that embrace disapproval of, if not outright hostility for, many groups protected by public-accommodations laws, including racial minorities, women and disfavored religions. We need to be clear-eyed about where this could go: “No Blacks, No Gays, No Women, No Muslims.”

In 303 Creative the Supreme Court has limited its review to the free-speech claim, choosing not to address the separate religious-liberty claim—though that undoubtedly will come soon. In thinking about how the Court will address tensions between the First Amendment and public-accommodations laws in 303 Creative, a review of the bakery case from four years ago is helpful. And closer to home, the Second Circuit heard revealing arguments just last week in a case brought by the same group pressing 303 Creative, in that instance a challenge by a photography business refusing to provide services for a same-sex weddings.

Wedding Cakes

Given the strong political and religious views about marriage, the right understandably has focused on weddings in its new attack on anti-discrimination provisions in public-accommodations laws. The first Supreme Court foray came in 2018 with Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S.Ct. 1719 (2018), the challenge involving the bakery that refused to sell the cake celebrating a same-sex wedding. The Christian baker was represented by the Alliance Defending Freedom, a conservative advocacy group that also represents the plaintiffs in 303 Creative and in last week’s case in the Second Circuit.

In Masterpiece Cakeshop the Supreme Court faced free-speech and religious-liberty claims. On the free-speech claim, the baker asserted the making of the cake was an expressive act and argued that being required to make the cake for the same-sex couple would be an act of “compelled speech,” which the First Amendment protects against. As for the religious-liberty claim, same-sex marriage was contrary to the baker’s religious views, and he argued that forcing him to create a cake for a same-sex marriage would be tantamount to forcing him to participate in the celebration.

In an opinion authored by Justice Anthony Kennedy—since retired and replaced by Justice Kavanaugh—the Court readily identified the issues the case presented:

Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights … . At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression … . Nevertheless, while those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.

With respect to weddings specifically, the Court identified the extreme example of a member of the clergy who objects to gay marriage having to perform a same-sex wedding as one that would violate the Free Exercise Clause. But “if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.” The Court continued,

It is unexceptional that Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public. And there are no doubt innumerable goods and services that no one could argue implicate the First Amendment … .

Phillips claims, however, that a narrower issue is presented. He argues that he had to use his artistic skills to make an expressive statement, a wedding endorsement in his own voice and of his own creation. As Phillips would see the case, this contention has a significant First Amendment speech component and implicates his deep and sincere religious beliefs. In this context the baker likely found it difficult to find a line where the customers’ rights to goods and services became a demand for him to exercise the right of his own personal expression for their message, a message he could not express in a way consistent with his religious beliefs.

Having set out the issues clearly, however, the Court then chose to sidestep them. Rather, it decided the case by concluding the state agency that had heard the discrimination claim by the two men had evinced hostility to the baker’s religious beliefs in a way that suggested impermissible religious animus separate and apart from the specific dispute about the cake.

In light of that conclusion, the Court sent the dispute back to the Colorado administrative agencies to readjudicate the discrimination claim, leaving for another day the real issues in the case. That day now has come with 303 Creative. (On Tuesday the panel issued an order holding the case in abeyance until the Supreme Court decides 303 Creative.)

Wedding Photography

Before turning to 303 Creative, a short detour to the Second Circuit is in order since that Court just last week heard oral arguments in a case that provides a preview for what’s to come in the Supreme Court. In Carpenter v. James, No. 22-75-cv, a case also brought by the Alliance for Defending Freedom, a Christian photographer argued she could not be required under New York public-accommodations laws to provide wedding-photography services to a same-sex couple. As with the Colorado baker, the New York photographer contends that requiring her to provide such services would be an act of compelled speech and, separately, would violate her religious beliefs.

The panel hearing the cases consisted of an Obama appointee, a Trump appointee, and a Biden appointee: Judge Susan Carney, Judge Joseph Bianco, and Judge Allison Nathan, who is married to a woman. As one might expect, much of the argument—which focused on the free-speech claim—turned on where lines could or could not be drawn in creating or denying First Amendment exceptions to public-accommodations statutes.

On the third-rail issue of denying services to Black customers, the ADF lawyer contended their claim would not require that because, in his view, the government had a sufficiently compelling interest in combatting race discrimination in particular to override a competing First Amendment interest. That answer is unsurprising given the narrative danger of any other approach, but it is an answer that does not necessarily survive much scrutiny. While racial discrimination has a uniquely sinister and destructive history, one can easily see how racial protections could be imperiled by a Supreme Court that finds other forms of insidious discrimination to be constitutionally protected.

As for the issue of the expressive element of wedding services, the panel asked what services would not be expressive so as not to implicate the Free Speech Clause. The ADF lawyer identified catering, a surprising response given that ADF had used a cake for its initial challenge in Masterpiece Cakeshop. The answer prompted a series of questions about why the presentation of food would not include expressive elements, and related queries about other wedding services, including floral arrangements and invitation calligraphy. None of these exchanges yielded clear lines that would confine the consequences of a holding that the New York photography business could refuse its services for gay weddings. That is notable, as we can expect the same exchanges when the Supreme Court hears 303 Creative.

Wedding Websites

At issue in 303 Creative is yet another aspect of weddings: the now-common wedding website. The plaintiff is a Colorado graphic- and website-design company whose owner objects to same-sex marriages for religious reasons and is claiming a First Amendment right to refuse to provide website services for same-sex weddings. ADF represents the company and is advancing the same free-speech claims at issue in Masterpiece Cakeshop and Carpenter.

That the service here does not involve food, as in Masterpiece Cakeshop, may reflect a strategic choice to minimize the chance of the Court again passing on the core issue by concluding the service is not expressive. In Masterpiece the Court flagged the novelty of the contention the First Amendment protects cake-making: “The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech.” By contrast, website design, though a relatively new service, may avoid threshold questions about being expressive given that it involves words and images.

Assuming the Court reaches the core issue it avoided in Masterpiece Cakeshop, it will need to grapple with the profound ramifications of allowing protections for expressive activity to nullify public-accommodation protections, just as the Second Circuit tried grappling with them in the Carpenter arguments. And those ramifications are not limited to weddings or same-sex couples. If designing a website is expressive activity that cannot be compelled in the name of preventing discrimination in commerce, how does that differ from performing music, taking photographs, making videos, creating clothing, designing buildings, decorating rooms, styling hair, arranging flowers, or presenting food?

To be sure, distinctions are possible, and lines can be drawn. But once the door is opened, one can rest assured that many, including some on the Supreme Court, will dedicate themselves to forcing through that door as many acts of discrimination as possible in the name of freedom of expression.

This piece was originally published in the New York Law Journal