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On June 30, the Supreme Court released its decision in 303 Creative LLC v. Elenis, holding that, under the guise of free speech, businesses could refuse to create wedding websites for same-sex couples. I finished my reading of both the majority and dissenting opinions that evening, and after doing so, I can conclusively say that the majority conveniently ignores legal precedent to encourage bigotry and intolerance over equality and acceptance. I will briefly summarize the facts of the case before delving into the merits of the holding.
Lorie Smith, owner of 303 Creative, believed that same-sex marriages were "false" due to her religion. As a result, Smith refused to create wedding websites for same-sex couples, while being eager to provide the same service for heterosexual couples. The Colorado Anti-Discrimination Act (CADA), seeking to remove discrimination from public accommodations, requires that public-facing businesses must not discriminate on account of race, disability, sex, sexual orientation, national origin, and other protected classes. CADA would have required Smith to provide wedding websites to everyone, regardless of sexual orientation.
Smith, believing that her websites were an act of speech, argued that CADA was unconstitutional since, in her view, it would have compelled her to create speech she was against. The majority opinion, written by Justice Neil Gorsuch, affirms Smith's free speech argument; but while doing so, largely ignores several crucial factors, including precedent, the extent to which Ms. Smith would be compelled to create speech, and the discriminatory ramifications the Court's holding condones.
The Supreme Court has historically rejected claims of First Amendment licenses to discriminate. In Runyon v. McCrary (1973), the Court ruled that, despite private schools' First Amendment guarantee of freedom of speech and association, they could not deny Black children enrollment. As part of its rationale, the Court remarked that requiring the school to enroll Black children was not equivalent to requiring the school teach anti-segregationist lessons, thereby not imposing a significant burden on the school's freedom of speech. A legally consistent Court would apply this rationale to 303 Creative LLC v. Elenis by holding that requiring Smith to provide her wedding website services to same-sex couples was not equivalent to compelling her to spread pro-LGBT messages.
In Roberts v. United States Jaycees (1984), the United States Jaycees, wanting to forbid women from joining their organization, claimed that a Minnesota law barring discrimination on the account of sex was unconstitutional. They argued that the law, as it would require them to extend membership to women, would violate their members' rights of free speech and association. The Supreme Court disagreed. Since the anti-discrimination law didn't seek to suppress the organization's speech, and only sought to prevent discrimination, the United States Jaycees' free speech rights were not infringed upon. The Colorado Anti-Discrimination Act certainly did not seek to curtail 303 Creative's speech; it sought to prevent discrimination. Thus, by Roberts v. United States Jaycees, a legally sound court would hold that 303 Creative's First Amendment rights were not in jeopardy.
It is also worth noting that Smith offers to do business with same-sex couples, but just not provide them with wedding websites. She argues that there are many other custom website designers doing business in the state of Colorado that same-sex couples may hire. Both claims are irrelevant to the case. By refusing to provide wedding websites to same-sex couples while allowing them other services, Smith effectively restricts the goods her customers may purchase on account of sexual orientation. This is discrimination, plain and simple. Moreover, the injustice here is not remedied if same-sex couples can find a "separate but equal" website company to create their wedding website. The injustice is that same-sex couples, solely because of their sexual orientation, cannot access the same goods and services, provided by the same merchant, that heterosexual couples are afforded.
Justice Gorsuch also misstates the extent to which Smith's free speech rights are being curtailed. He claims that CADA compels Smith to dispose of her views, and instead, engage in ideas sanctioned by the state of Colorado. This is untrue. While it is true that under CADA, she would have to create websites containing speech she is against, this burden is merely incidental. CADA does not require Smith to write messages in favor of, or against same-sex marriage. It simply requires her to allow same-sex couples access to the same services that her business extends to opposite-sex couples. Any speech created is solely a result of providing her services to the public and not discriminating against certain classes. That is, CADA only requires that Smith create speech for a same-sex couple if it offers the same speech to opposite-sex couples.
Furthermore, Justice Gorsuch, and the five other justices who signed on to the opinion, as a result of their holding, have indirectly allowed for other egregious forms of discrimination. Under 303 Creative LLC v. Elenis, a website designer could refuse to make wedding websites for interracial couples. Historically, many opposed interracial marriage because they thought that it was against God's will. Furthermore, since Justice Gorsuch didn't focus on the religious motivation for Smith's discrimination, the Supreme Court also permits other discrimination. For example, a company selling 1950s-esque personalized Christmas vintage family photographs could refuse service to Black and interracial families by reasoning that the company only views white families as the subjects of the vintage 1950s setting they want to depict.
These consequences are not acceptable. The Supreme Court has, once again, conveniently ignored decades of legal precedent and the United States' founding principle of equality to allow for a broad license to discriminate. Ignoring key elements of cases such as relevant precedent and logical repercussions of any particular argument is dubious, yet all too common for the Roberts Court's conservative majority. While proclaiming to be ardent constitutional textualists, the conservatives on the Roberts Court seem to ignore existing law and judicial norms whenever doing so serves to advance their own partisan interests. This cannot be tolerated.
Preventing decisions like this is of utmost priority, and to do so, the power of the vote is essential. Make no mistake, if in 2016, just 80,000 more people, in three states, voted for Hillary Clinton, instead of staying home because they weren't "energized" by a particular candidate, this decision would not have happened. In the United States of America, voting is the most effective way to ensure long-lasting change. As Dwight D. Eisenhower said, to protect our rights and liberties, "politics ought to be the part-time profession of every citizen."
References
[1] 303 Creative LLC v. Elenis, 600 U. S. ___ (2023)
[2] Transcript of Oral Argument at 26-27, 303 Creative LLC v. Elenis, 600 U.S. ___ (2023) (No. 21-476)
