Gay Rights v. Free Expression: Latest installment in a long history at the Supreme Court

In the United States, laws prohibiting discrimination against protected classes regulate “public accommodations,” a term of art legally that describes businesses and other facilities open to the public on substantially similar terms. Classic examples (such as from the federal Civil Rights Act of 1964) are trains and buses where anyone who pays the fare can ride, theaters and halls where anyone who buys a ticket can attend, inns and hotels, and taverns and restaurants. Federal law for this purpose defines the protected classes as “race, color, religion, or national origin.”

Prior to the enactment of the Civil Rights Act, there were decades of protests against government-mandated racial segregation, mostly in the southern states, and the courts had been chipping away in different sectors of activity using the Equal Protection Clause of the Fourteenth Amendment that became effective in 1868 after the Civil War: “…nor shall any State… deny to any person within its jurisdiction the equal protection of the laws.” Certainly the most famous case in this vein was Brown v. Board of Education, which in 1954 prohibited racial segregation in government-run schools even if they could claim to be “separate but equal.” The bus boycott in Montgomery, Alabama, famously begun by Rosa Parks in 1955 (although 15 year-old Claudette Colvin was arrested a few months earlier), was actually ended by the federal courts in 1956 with a ruling in Browder v. Gayle (in which Colvin but not Parks was a plaintiff) that racial segregation of government-run buses was unconstitutional under the Equal Protection Clause.


But such court cases applied only to government-run services such as buses and schools, not to private parties. Beginning in the 1930s, protests against racial segregation in private businesses typically took the form of sit-ins where African Americans would present themselves as customers and remain present until they were served, which of course would never happen. Despite isolated successes in the 1950s, notably at a Read’s Drug Store in Baltimore in 1955, where the businesses capitulated to the sit-in and racially integrated themselves, the defining sit-in that attracted memorable notoriety was in 1960 at a Woolworth’s lunch counter in Greensboro, North Carolina, initially by local college students, that inspired copycat efforts first throughout the state and then nationally, eventually involving an estimated 70,000 protesters. President Dwight Eisenhower, although at that time having no legal basis for federal intervention, said that he was “deeply sympathetic” to the sit-in. After many months and hundreds of thousands of dollars in lost business, the store manager of the Woolworth’s asked several of his Black employees to be seated as his guests at the lunch counter, thereby conceding the fight.

On the evening of June 11, 1963, President John F. Kennedy addressed the nation in what he called simply a “civil rights message,” announcing his support for what would become the Civil Rights Act the next year. “It ought to be possible for American consumers of any color to receive equal service in places of public accommodation, such as hotels and restaurants and theaters and retail stores, without being forced to resort to demonstrations in the street…” he said. “The heart of the question is whether all Americans are to be afforded equal rights and equal opportunities, whether we are going to treat our fellow Americans as we want to be treated. If an American, because his skin is dark, cannot eat lunch in a restaurant open to the public, if he cannot send his children to the best public school available, if he cannot vote for the public officials who represent him, if, in short, he cannot enjoy the full and free life which all of us want, then who among us would be content to have the color of his skin changed and stand in his place?”

The morning after Kennedy’s speech, civil rights activist Medgar Evers was shot to death in his own driveway. In November, Kennedy himself was assassinated. Southern senators prevented consideration of the bill by filibuster both before the Kennedy assassination and after Lyndon B. Johnson succeeded to the presidency. Eventually public pressure and Johnson’s invocation of Kennedy’s memory gained enough votes to break the filibuster and pass the bill in July 1964.

Congress did try after the Civil War to outlaw racial discrimination by private parties in the Civil Rights Act of 1875, in which Congress mainly cited the Equal Protection Clause as the basis, but the Supreme Court ruled in the Civil Rights Cases in 1883 that the federal government did not have the power to do that. As a result, when Congress adopted the 1964 law, it cited the Interstate Commerce Clause as the basis instead, and the courts have generally upheld that. It could be fairly argued that the Supreme Court through rulings in the 1880s and 1890s subverted for nearly a hundred years congressional legal protection of racial equality, effectively preserving the practical vestiges of chattel slavery after its formal abolition by the Thirteenth Amendment in 1865.

In the more than a half-century since the Civil Rights Act of 1964, states have stepped in to fill the gaps left by it. The definition of “public accommodation” has been expanded by many states to include, for example, private membership clubs that were specifically excluded. The list of protected classes has been expanded by about half the states to include sexual orientation and gender identity.

While the power of states to expand the list of protected classes has been legally uncontroversial, there has been substantial pushback on the expansion of the meaning of “public accommodation.” Generally, a defining characteristic of a public accommodation is that it makes no greater demand on the provider of the service to one than to another: the operator of a bus or tavern or theater or lunch counter provides exactly the same service regardless of the race or sexual orientation of the customer, and no different burden is imposed in providing that identical service.

On June 30 the Supreme Court ruled 6–3 in 303 Creative v. Elenis that Colorado went too far in treating a web business that designs custom sites for weddings as a public accommodation, requiring that the business provide sites for same-sex weddings despite the religious beliefs of business owner Lorie Smith. (The opinion of the Court and the dissent consumed 70 pages.) Currently, Colorado defines a public accommodation as “any place of business engaged in any sales to the public.” Although the web design business offered its services to the general public for substantially fixed fees, each site would be unique, as Justice Neil Gorsuch explained for the Court (citations consistently omitted):

Recently, [Smith] decided to expand her offerings to include services for couples seeking websites for their weddings. As she envisions it, her websites will provide couples with text, graphic arts, and videos to “celebrate” and “conve[y]” the “details” of their “unique love story.” The websites will discuss how the couple met, explain their backgrounds, families, and future plans, and provide information about their upcoming wedding. All of the text and graphics on these websites will be “original,” “customized,” and “tailored” creations. The websites will be “expressive in nature,” designed “to communicate a particular message.” Viewers will know, too, “that the websites are [Ms. Smith’s] original artwork,” for the name of the company she owns and operates by herself will be displayed on every one.

As he further explained:

[The Court of Appeals for the 10th Circuit] acknowledged that Ms. Smith’s planned wedding websites qualify as “pure speech” protected by the First Amendment. As a result, the court reasoned, Colorado had to satisfy “strict scrutiny” before compelling speech from her that she did not wish to create. Under that standard, the court continued, the State had to show both that forcing Ms. Smith to create speech would serve a compelling governmental interest and that no less restrictive alternative exists to secure that interest. Ultimately, a divided panel concluded that the State had carried these burdens. As the majority saw it, Colorado has a compelling interest in ensuring “equal access to publicly available goods and services,” and no option short of coercing speech from Ms. Smith can satisfy that interest because she plans to offer “unique services” that are, “by definition, unavailable elsewhere.”

Compelled speech has a long and litigious history. The Court cites West Virginia State Board of Education v. Barnette, a case in 1943 at the height of World War II patriotic fervor that held school children cannot be forced to salute the flag contrary to their religious beliefs. The Court cites Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, a 1995 case that held the private organizers of a St. Patrick’s Day parade on the public streets could not be forced to allow pro-LGBT groups to participate. The Court cites Boy Scouts of America v. Dale, a 2000 case that held New Jersey could not force a private organization to allow membership of a gay man.

In other words, the Supreme Court consistently historically limited the applicability of anti-discrimination statutes to true public accommodations where expressive speech was not at issue.

Here, Colorado seeks to put Ms. Smith to a similar choice: If she wishes to speak, she must either speak as the State demands or face sanctions for expressing her own beliefs, sanctions that may include compulsory participation in “remedial… training,” filing periodic compliance reports as officials deem necessary, and paying monetary fines.

Such compelled speech would violate the First Amendment, he wrote for the Court:

Under Colorado’s logic, the government may compel anyone who speaks for pay on a given topic to accept all commissions on that same topic — no matter the underlying message — if the topic somehow implicates a customer’s statutorily protected trait. Taken seriously, that principle would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty. The government could require “an unwilling Muslim movie director to make a film with a Zionist message,” or “an atheist muralist to accept a commission celebrating Evangelical zeal,” so long as they would make films or murals for other members of the public with different messages. Equally, the government could force a male website designer married to another man to design websites for an organization that advocates against same-sex marriage.

In dissent, Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, argues that Colorado sought to regulate conduct rather than speech:

A business open to the public seeks to deny gay and lesbian customers the full and equal enjoyment of its services based on the owner’s religious belief that same-sex marriages are “false.” The business argues, and a majority of the Court agrees, that because the business offers services that are customized and expressive, the Free Speech Clause of the First Amendment shields the business from a generally applicable law that prohibits discrimination in the sale of publicly available goods and services. That is wrong. Profoundly wrong. As I will explain, the law in question targets conduct, not speech, for regulation, and the act of discrimination has never constituted protected expression under the First Amendment.

She invokes much of the history discussed above, including the Civil Rights Act of 1875 that was invalidated by the Supreme Court, and even references the 1998 murder of Matthew Shepard and the 1969 Stonewall Inn riots. She especially cites Runyon v. McCrary, a 1976 case that held private schools have no First Amendment right to refuse admission to students on the basis of race although a central purpose and function of schools is to teach and express ideas. She cites Roberts v. United States Jaycees, a 1984 case that held the local chapter of the Jaycees was a public accommodation that Minnesota could force to admit women because such chapters are “large and basically unselective groups” rather than private clubs, and mere membership did not per se implicate or restrict viewpoint expression.

More relevantly, she argues that Colorado would not restrict speech at all, and it is difficult to see this as logically coherent. Why would a same-sex couple hire a web designer who expressed an opinion on their own wedding site that she disapproved of their marriage? And if the web designer did so, how could anyone reasonably claim that she had not run afoul of Colorado law?

Crucially, the law “does not dictate the content of speech at all, which is only ‘compelled’ if, and to the extent,” the company offers “such speech” to other customers. Colorado does not require the company to “speak [the State’s] preferred message.” Nor does it prohibit the company from speaking the company’s preferred message. The company could, for example, offer only wedding websites with biblical quotations describing marriage as between one man and one woman. (Just as it could offer only t-shirts with such quotations.) The company could also refuse to include the words “Love is Love” if it would not provide those words to any customer. All the company has to do is offer its services without regard to customers’ protected characteristics. Any effect on the company’s speech is therefore “incidental” to the State’s content-neutral regulation of conduct. Once these features of the law are understood, it becomes clear that petitioners’ freedom of speech is not abridged in any meaningful sense, factual or legal. Petitioners remain free to advocate the idea that same-sex marriage betrays God’s laws. Even if Smith believes God is calling her to do so through her for-profit company, the company need not hold out its goods or services to the public at large… All the company may not do is offer wedding websites to the public yet refuse those same websites to gay and lesbian couples.

Ultimately, Sotomayor grounds her dissent in the claim that expressive speech is only incidental to a wedding site on the web, a point vociferously criticized by Gorsuch (emphasis in original):

Instead of addressing the parties’ stipulations about the case actually before us, the dissent spends much of its time adrift on a sea of hypotheticals about photographers, stationers, and others, asking if they too provide expressive services covered by the First Amendment. But those cases are not this case. Doubtless, determining what qualifies as expressive activity protected by the First Amendment can sometimes raise difficult questions. But this case presents no complication of that kind. The parties have stipulated that Ms. Smith seeks to engage in expressive activity. And the Tenth Circuit has recognized her services involve “pure speech.” Nothing the dissent says can alter this — nor can it displace the First Amendment protections that follow.

An important purpose of anti-discrimination laws is to protect those who would choose to offer public accommodations if they were free to do so: the operator of a theater or lunch counter might be afraid that serving persons of any race without discrimination would drive customers to competing businesses that continued to discriminate, and the law prevents that sort of unfair competition thereby protecting the service provider. That concern simply has no application to web designers nor to other artists and writers where the supply is vast and the competition unlimited.

Personally, the more I re-read the dissent, the less sense it makes: at issue are sites on the web that are not cookie-cutter, fill-in-the-blank designs, although if they were then I would agree they constitute public accommodations subject to anti-discrimination laws in the same way as bus and theater seats. While photography is usually artistic expressive speech, there are circumstances where it loses most of that character, such as school photographers who simply line up subjects and mechanically parade them one at a time in front of a camera. Where expressive speech is the core of the service provided, the Court majority promulgates a balancing test of competing rights between public accommodation of a protected class and the right to speak freely, taking into account particular facts and circumstances.