Well, it looks like if you run a business, it’s A-okay to discriminate against certain customers based on your religious beliefs…
How do you square that assertion with cited Rehnquist-era precedents? My oversimplified summaries do not do these cases justice, but I struggle to distinguish them from the present case.
Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, Inc., 515 U.S. 557 (1995)
(A private group of veterans organizing a parade may exclude a group of gay/lesbian/bisexuals from marching due to the latter group’s purpose of celebrating gay/lesbian/bisexual Irish-Americans, despite applicable state antidiscrimination/public accommodation laws, because they do not want to convey the idea that the parade is celebrating gay, lesbian, or bisexual Irish-Americans.)
Boy Scouts of America v. Dale, 530 U.S. 640 (2000)
(BSA may exclude membership to an openly gay individual on the basis of his activism, despite applicable state antidiscrimination/public accommodation laws, because they do not want to convey the idea that homosexuality is morally acceptable)
In my mind, I can distinguish the above line of precedents from the Warren-era cases Heart of Atlanta Motel, Katzenbach v. McClung, etc. as the latter do not involve expressive speech.
While I don’t agree with today’s Court that Colorado’s laws operate to eradicate the idea that marriage is or should be strictly heterosexual, it does appear that it would (in the hypothetical case) compel a wedding website designer to express support for same-sex marriages. I agree with the Court (and the 10th Circuit, and both parties) that custom tailored website design services here contemplated are expressive in nature. I see that as similar to writing a song or poem to celebrate a particular wedding.
The logical conclusion is that businesses can refuse to provide made-to-order expressive services for child marriages, polygamous marriages, interfaith marriages, nonreligious marriages, interracial marriages, etc.
~Max
That’s different in my eyes, because it’s the 14th Amendment prohibiting the state from discriminating. Do States even have 1st Amendment rights? They sure didn’t assert them in the '60s. Here we’re dealing with a private person (actually, a private corporate person) doing the discrimination. I don’t think the equal protection clause applies.
ETA: The rationale used in Loving is persuasive, but it doesn’t clearly carry over as well-established law. Loving didn’t balance antidiscrimination against freedom of speech and I think that’s determinative here. ETA2: It’s also worth noting that in Loving, the “service” the party refuses to provide is not readily accessible elsewhere. The state government has a monopoly on marriage licenses, but even an undue burden would be enough to distinguish the cases for me. In the present 303 case, parties stipulated that there are other wedding website designers readily available.
~Max
Definitely. The State argued that it was satisfying its compelling interest to remove discrimination in places of public access. The 10th Circuit held that this was a compelling interest and the Supreme Court upheld that determination. But in order to compel speech (or overcome any other fundamental right) the State needs to prove that its particular law is narrowly tailored to further a compelling interest, and on that ground, the Court … implied … they failed.
I wish Justice Gorsuch had explicitly written as much but unless I missed it, he appears to have omitted that key point. Nevertheless it follows from the opinion’s holding. This isn’t some new exception to the strict scrutiny doctrine.
~Max
I read that, but didn’t find it dispositive. FAIR didn’t involve expressive speech, as I recall the central holding was that association with military recruiters on campus was not expressive speech. The present case involves expressive speech.
The cites I saw in the dissent don’t speak to commercial/noncommercial, at least not for expressive speech. Even the dicta doesn’t speak to why the distinction is relevant. I don’t understand the argument for why commercial/noncommercial is relevant. As the majority points out, most protected speech is paid for. Political speechwriters draw salaries, poets can sell their poems, photographers can sell their pictures, website designers can sell their designs, etc.
~Max
I think expressive speech that celebrates and promotes a specific wedding and love story, and is published to the public under the author’s name, counts as an endorsement of that wedding and the couple’s love. The service 303 Creative wants to provide necessarily involves endorsing a particular marriage and the love of the particular couple being wed. But Ms. Smith does not want to endorse a same-sex marriage.
From the Joint Statement of Stipulated Facts (a list of facts the State of Colorado and Ms. Smith both agreed upon):
- All of Plaintiffs’ website designs are expressive in
nature, as they contain images, words, symbols, and
other modes of expression that Plaintiffs use to
communicate a particular message.[…]
- Each website 303 Creative designs and creates is
an original, customized creation for each client.[…]
- Every aspect of the websites and graphics
Plaintiffs design contributes to the overall messages
that Plaintiffs convey through the websites and
graphics and the efficacy of those messages.[…]
- Plaintiffs’ custom wedding websites will be
expressive in nature, using text, graphics, and in
some cases videos to celebrate and promote the
couple’s wedding and unique love story.[…]
- Viewers of the wedding websites will know that
the websites are Plaintiffs’ original artwork because
all of the wedding websites will say “Designed by
303Creative.com.”
That’s not true. I could envision a hypothetical where 303 Creative would refuse to design a website that celebrates and promotes a child marriage. The parties also stipulated that 303 Creative would be willing to create other non-wedding website designs for gay clients.
- Plaintiffs are willing to work with all people
regardless of classifications such as race, creed,
sexual orientation, and gender.- Plaintiffs do not object to and will gladly create
custom graphics and websites for gay, lesbian, or
bisexual clients or for organizations run by gay,
lesbian, or bisexual persons so long as the custom
graphics and websites do not violate their religious
beliefs, as is true for all customers.- Among other things, Plaintiffs will decline any
request to design, create, or promote content that:
contradicts biblical truth; demeans or disparages
others; promotes sexual immorality; supports the
destruction of unborn children; incites violence; or
promotes any conception of marriage other than
marriage between one man and one woman.
Plaintiff is not planning on going into the business of creating “neutral” marriage websites. Her concept of marriage is exclusively heterosexual. She is explicitly going into business to create designs that promote and celebrate the institution of marriage as she understands it: between a man and a woman.
- Ms. Smith is compelled by her religious beliefs to
use the talents God has given her to promote God’s
design for marriage in a compelling way.- Ms. Smith is compelled by her religious beliefs to
do this by expanding the scope of 303 Creative’s
services to include the design, creation, and
publication of wedding websites.- Consistent with Plaintiffs’ religious beliefs, the
wedding websites that Plaintiffs wish to design,
create, and publish will promote and celebrate the
unique beauty of God’s design for marriage between
one man and one woman.- By creating wedding websites, Ms. Smith and 303
Creative will collaborate with prospective brides and
grooms in order to use their unique stories as source
material to express Ms. Smith’s and 303 Creative’s
message celebrating and promoting God’s design for
marriage as the lifelong union of one man and one
woman.
I agree with the latter sentence, however…
One, de facto is not de jure. Laws are imperfect and will often tolerate de facto injustice. Judges should rule on law, not on fact.
Two, once you change the subject of a speech, the speech is no longer the exact same thing. If I were to say “he is married”, it matters who “he” refers to because some people are married and some people are not. To a bigoted person who does not recognize same-sex marriages, same-sex couples are not married. It is a very different thing for such a person to speak of same-sex couples - the sentence could turn from truth to lie.
~Max
Look, she’s the kind of person who will quote the bible at her clients, and also on the face of her website designs. I’m not just assuming, she wrote so much in her court filings.
I looked at the wedding website she designed. There is zero chance of a same sex couple soliciting her work, except maybe to spite her if the law had compelled her to take the job.
~Max
Likelihood of having same sex clients would be irrelevant if the business was actually operating with a discriminatory sign. The presence of a sign would harm the public and allow the State to sue. Here 303 Creative only has plans to work on wedding website designs. Nothing analogous to a Colored Not Wanted sign has actually been put up.
~Max
It can’t be stressed enough that 303 Creative is the plaintiff, and the State of Colorado (through Director Elenis) was haled into court against their will.
~Max
He could be fired. This decision - and the Fourteenth Amendment - only enjoins the government, not a private party such as an employer.
I could, however, envision an antisemitic test case where a restaurant refuses to address Jews as sirs or ma’ams, as a matter of policy. On belief that they are subhuman or other bs. If that’s not expressive enough maybe have the staff do a spiel but not for Jews. It’d be a federal case, First Amendment versus the Commerce clause (Title II of Civil Rights Act). I think the bigots should win that case, but I’m still trying to think of a good reason to distinguish commercial from noncommercial speech.
~Max
The wedding website is not discriminatory on it’s face. It’s hostile to set sex marriage (there is a bible quote of a man and woman) but it does not announce that the designer would discriminate against gay or lesbian clients.
Ms. Smith, in her filings, said she plans on introducing a clause into client contracts saying she will not work on a same sex marriage website. As I understand it the client would see this clause only after soliciting her for wedding work - which is unlikely.
~Max
Personally I would prefer a constitutional amendment that lists civil rights - I don’t think the Court was legally correct to uphold Title II back with Heart of Atlanta Motel, or the whole line of commerce cases it rests on going back to the Shreveport Railroad Case.
It’s frankly insane that the foundation of so many civil rights is that civil rights legislation is a “necessary and proper” exercise of the power to regulate interstate commerce.
[/Off topic]
~Max
There is zero chance that the State can prohibit wedding materials from expressing the idea that marriage is only between and and woman. There’s room for argument if a business won’t service same sex couples, but (excepting extreme cases such as immediate violence) you can’t outlaw expressions of hostile ideas.
~Max
I think you’re mistaken on this. The case is Atlanta Motel v. U.S., 379 U.S. 241 (1964). It rests on the commerce and necessary & proper clauses, NOT the reconstruction amendments. [/Off topic]
~Max
I’ve read cases where bigots tried to use the takings clause and the free exercise clause. Can you cite a case where they pitted the Civil Rights Act against First Amendment freedom of speech?
~Max
‘Whites only’ doesn’t express an idea, (ETA: it’s not expressive speech like “marriage is only between a man and a woman”) it is purely functional. Like saying we close at 7pm.
And there are, I think, cases on advertisements as a form of commercial speech that has less protection.
~Max
The defendant is Colorado Civil Rights Division Director Aubrey Elonis. The person you read about wasn’t a party to the case, but his name was mentioned in court filings for the plaintiff as evidence.
~Max
I’m not a lawyer but I don’t see it as important enough to vacate the decision. The Japanese internment case is still on the books and there the U.S. Govt straight up lied to the court, about critical evidence, resulting in thousands of innocent people being forced into camps for years.
This guy wasn’t integral to the plaintiff’s case. See also Doreen’s link up thread
~Max
The theory here is that the law credibly threatens plaintiffs liberty to speak freely without due process. Credible threats are a form of harm (assault being the crime to threaten bodily injury), so that’s the theory here.
(I don’t agree the threat was credible, but if she had simply started her business first, it would be)
~Max
The sushi arrangement may or may not be expressive, but it certainly does not express the idea that the chef is promoting or celebrating your marriage. He didn’t even know you were partners, how could it express that fact?
~Max