The Supreme Court recently rendered their decision in 303 Creative LLC v. Elenis. One always has to worry a little when the right to free expression is on the line in a case before the court. Witness Morse v. Frederick, 551 U.S. 393 [2007] where the conservative-dominated court needlessly limited free speech protections. Luckily, in 303 the court chose to protect free expression in the strongest possible languages.
There is one caveat however, the liberal side of the bench dissented from the majority and voted to curtail the right to free expression. Read that again: the liberal justices voted to limit free expression rights. What the Hell happened?
Let us look at what was at stake in 303. This case concerns a web designer who has religious opposition to marriage equality. She wants to include designing web sites for weddings, but has a religious objection to designing web sites for same-sex couples.1 She believed this would put her in conflict with the Colorado Civil Rights Division (CCRD), the agency that enforces the Colorado anti-discrimination statute. You may remember this agency from the Masterpiece Cakeshop matter.
You should recall that Masterpiece Cakeshop Ltd v. Colorado Civil Rights Division, 138 S. Ct. 1719 [2018] involved a baker who also, citing his religious precepts, refused to design custom cakes for same-sex weddings. The CCRD ruled that his refusal violated Colorado law. The CCRD not only fined him, but placed onerous requirements on him which required him to document any future refusals to take custom baking jobs. Of course, the web designer in 303, Lorie Smith, was aware of the Masterpiece case and did not want to run afoul of the CCRD. So she preemptively sued the CCRD2 on the grounds that the CCRD would violate her rights to free expression and religious exercise protected by the First Amendment of the US Constitution.
Compelled Speech
Ms. Smith’s free expression contention takes a few steps to understand. She wants to work with clients to design unique websites for couples about to get married. That is, she is engaged in a creative endeavor. However, she is opposed to same sex couples getting married on religious grounds. Thus, she does not want to create websites for same sex marriages because in doing so she would be promoting something to which she is opposed. Thus, if she enters the business of creating wedding sites, she is afraid that the CCRD will use the power of the state (as it did previously in the Masterpiece matter) to compel her to make custom sites for same sex couples. This constitutes the State of Colorado compelling her to speak favorably about marriage equality, which is something she opposes.
Ms. Smith is correct on this point.
I am sure most of my readers are thinking that a public business should not be able to discriminate against people based on their sexual orientation. This is also correct. So we appear to have two rights in conflict - the right of free expression and protection from compelled speech versus anti-discrimination laws. But this is not really the case, because there is a difference between selling things off of the shelf and creating a bespoke creative work. The former involves selling something in existence to anyone who walks in the door, while the latter involves adding your voice and vision to the work.
Two Hypotheticals
Before we move forward, let’s consider two hypothetical cases. The reason for this is that bad cases make bad law. In 303, I and most people I know will look at Ms. Smith’s business plan and think that it arises from bigotry. But the First Amendment exists to protect unpopular speech. Let us also consider some situations that are more sympathetic.
For the first hypothetical, consider the following. Suppose Sarah is Black and a web designer. When Sarah advertises her services, she states that she does websites for organizations, particularly advocacy organizations. One day, Bob who is white and a Klansman, walks into Sarah’s office and offers to hire her to make a website for his local Klan chapter. Ask yourself, should a Black web designer have the right to refuse to make a website promoting the Ku Klux Klan or some other white supremacist group?3 I hope in your mind you answered “yes” when you read this question.
For the second hypothetical, consider Vikram. Vikram is a second generation American whose family is from India, he has brown skin and is a devout Hindu. As you may know, the swastika is an ancient Hindu symbol that was misappropriated and co-opted by the Nazis. If you go to India you will notice that a lot of temples have swastika designs. Why? Because the design is Hindu and has been for thousands of years. Hindus get to use their ancient symbol regardless of what history’s biggest assholes, the Nazis, did with the symbol. If you say otherwise, you are affirming the Nazi and their theft of the swastika from the Hindus. You don’t want to validate Nazis, do you? When Vikram goes to the bakery to get a cake for a Hindu festival, he wants one decorated with a swastika motif (Hindu, not Nazi). However, the baker he goes to, Rachel, is Jewish and white. To Rachel, the swastika is a symbol of racial hatred, especially against Jews. She refuses to bake a cake with a swastika. Hopefully you agree with me that, despite Vikram asking for a swastika to celebrate his Hinduism, Rachel has a right to refuse to bake this cake.
Let us ask the next question. Have Sarah and Rachel, in refusing to create these items, run afoul of anti-discrimination laws? This puts the question in a different light.4
Creative Work Versus Selling Stuff
Let us consider the following, which is essentially the Masterpiece case. Let us say a baker places cakes out in his shop for sale to the general public. These are not custom cakes, but just what he baked and put out for sale. A gay couple comes in, takes a cake off the shelf, and hands the purchase price to the baker. If the baker refuses to sell them an off-the-shelf cake because they are gay then the baker has engaged in discrimination. This is because the baker is refusing to sell an item available to the general public to a customer because the customer is gay.
However, let us say the gay couple in this example instead seeks to hire the baker to make a custom cake for their wedding. The baker refuses to do so, because he refuses to lend his creative talent to endorse same sex marriage, which he opposes. The baker tells the couple they are free to buy any of the cakes off the shelf, but he will not make a custom cake for them. This is not discrimination.
In this case, the baker will sell to anyone who walks into his store, but what he will not do is participate in the creation of something that promotes something he opposes. He should not be forced by the state to decide between being a baker or promoting something he opposes.
Whether it is cakes, websites, paintings, or any other creative endeavor, the principle remains the same. Let us return to 303. Suppose a gay couple came in to Ms. Smith’s office to design a website for their car repair busniess. Assuming Ms. Smith has nothing against car repair, it would be discrimination to refuse to do business with the couple because they were gay. Now suppose they also wanted a wedding site, and Ms. Smith said that she was willing to design the repair shop site but would not do the wedding site because she opposes same sex marriage. This is not discrimination. She is not refusing business base on her client’s sexual orientation. Rather, she is refusing to lend her voice to endorse something with which she disagrees.
In this case, Ms. Smith may be bigoted, but she is not discriminating based on sexual orientation.
Disparate Impact Discrimination
At this point, if you still disagree with the holding of 303, you may argue that while Ms. Smith is not intentionally discriminating against same sex people, her actions have the same effect as if she was. That is, only same sex couples are going to request wedding sites that celebrate same sex couples. Thus by refusing to design wedding sites for same sex couples, Ms. Smith’s actions have the effect of discriminating against same sex couples.
This is called ‘disparate impact discrimination’. That is, a policy or rule may be neutral on its face and may not be promulgated with the intent to discriminate, but in practice that rule might have a disparate impact on a protected category like race, sex, religion, or sexual orientation.
Consider the following. A job requires an applicant to pass a test of physical strength to qualify. Because men are on average stronger than women, such a test will have a disparate impact on women applicants for the job. Of course if physical strength is necessary for the job the test is permissible. Thus, a physical strength test may be legitimate when hiring firefighters, but not when hiring data entry specialists.
Now let us return to Sarah, the Black web designer refusing to design a site for the Klan. Racial discrimination is prohibited in the United States. When Klansman Bob asks Sarah to design a website for his local Klan chapter, Sarah refuses. She cites her opposition to the Klan and its philosophy of discrimination and history of terrorism. Bob insists Sarah is only refusing his business because he is white. Sarah responds that, no, she is not refusing his business because he is white, she is refusing his business because he wants to promote the Klan.
Bob fancies himself clever at this point, and notes that almost everyone in the Klan or supporting the Klan is white. Thus, if someone is contracting a web design for a Klan website, they are probably white. Thus, while Sarah’s refusal to design a website for the local Klan may be based on her beliefs, may not intentionally discriminate against whites, and is race neutral (she would not design a Klan website for a black person either), but her blanket refusal to design a Klan website has a disparate impact on white people. Thus Sarah is engaging in disparate impact discrimination based on race.
Does anyone really want to side with Klansman Bob on this point?
The same can be said about Rachel. Suppose Vikram is sympathetic to Rachel’s refusal to bake a cake with a swastika. However, Vikram is also insulted that Rachel is equating an ancient symbol of his religion with the Nazis. It’s not like the Nazis would have been friendly to someone with his complexion. Whatever Rachel’s intent, Vikram notes, her blanket refusal to bake a cake with a swastika has a disparate impact on Hindus. Moreover, Vikram notes, most Hindus are Brown, so that by discriminating against Hindus, Rachel is also discriminating against Brown people from South Asian or with South Asian anscestry. Is Sarah engaging in diparate impact discrimintaion based on religion and race?
While Vikram thoughts on the matter are understandable, do we really expect a Jewish baker to bake a cake with a swastika on it?
Luckily, we don’t have to compel Sarah or Rachel to work on these projects. As we noted, disparate impact discrimination occurs when there is no legitimate reason for a rule that may have a disparate impact. Sarah’s legitimate reason for not designing a website for the Klan is that she is opposed to the Klan in specific and anti-black racism in general. That is, Sarah is refusing to create an expressive work that promotes a view she opposes. Likewise, Rachel notes that, while it may be unfair to Hindus, the swastika is a symbol of evil for Jews - it conjures images of the industrial scale murder of Jews by the Nazis. Rachel refuses to make an expressive work with a symbol that she perceives (and justifiably so) as evil.
This is the same thing Ms. Smith of 303 is doing. The only difference is that we are more likely (I hope) to agree with Sarah and Rachel than with Ms. Smith. We like gay rights and don’t like Nazis and Klansmen. But expression in line with popular sentiment is not the sort that needs protection from state overreach.
I am sure there are some holdouts at this point that want to argue that it would be fine for Sarah to refuse because her stance is based on opposing bigotry, while Ms. Smith’s position is rooted in bigotry. (This doesn’t work for Rachel however, so think hard about that.) If you believe this, then you do not believe in free expression and you do not have a problem with compelled speech. Rather, you are in favor of censorship and compulsion as long as that censorship and compulsion lines up with what you believe. (I’ve discussed this attitude before.) This makes you an authoritarian.
Failure of the Liberal Bench
So what happened with the so-called liberal justices? Historically, the liberal side of the Supreme Court bench has been the champions of freedom, while the conservatives have been more willing to ride roughshod over individual rights. See Morse v. Frederick, 551 U.S. 393 [2007] [limiting free speech rights of students] and Dobbs v. Jackson Women’s Health Center, 142 S. Ct. 2228 [2022] [elimination of constitutional right to abortion] for examples. So what did the liberal dissent have to say?
The crux of the liberal dissent is a failure to distinguish between expressive work and buying something off of the shelf. Justice Sotomayor writes:
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. FAIR, 547 U. S., at 62. Colorado does not require the company to
“speak [the State’s] preferred message.” Ante, at 19. 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.5 Brief for Respondents 15. (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. Id., at 15–16. Any effect on the company’s speech is therefore “incidental” to the State’s content-neutral regulation of conduct. FAIR, 547 U. S., at 62; see Hurley, 515 U. S., at 572–573.
Let’s unpack this.
The key to Justice Sotomayor’s thinking here is, “All the company has to do is offer its services without regard to customers’ protected characteristics.” By this logic, Ms. Smith could, if she so chose, include a banner on every website that said “the Bible says a marriage is between one man and one woman”6 or refuse to add the phrase “love is love” to any website. This position is absurd.
Under Justice Sotomayor’s speech regime, you can add whatever you want to a website (or a cake, or wall mural) as long as you add it to every website. On the other hand, if you offer to put whatever one customer offers to put on their website you must offer the same to every other. That is, the more you are acting as an artist the less freedom you have to refuse to express sentiments with which you disagree. In other words, the more your voice shows through in a project the more control the state has to compel what you say.
Justice Sotomayor, that is the essence of compelled speech.
Let us return to Sarah and Klansman Bob. By Justice Sotomayor’s logic, Sarah has to make the website for Klansman Bob. After all, race is a protected category, and Sarah must offer the same services to Bob that she would offer to anyone else. Sarah, as we noted, advertises her services for advocacy group and the Klan is an advocacy group. Moreover it is meaningless to say her policy is neutrally applicable, i.e. that Sarah would refuse to make a pro-Klan website for a person of color since almost no person of color would contract her for such a site Yes, Justice Sotomayor actually makes this argument in her dissent:7
The majority protests that Smith will gladly sell her goods and services to anyone, including same-sex couples. Ante, at 2, 17. She just will not sell websites for same-sex weddings. Apparently, a gay or lesbian couple might buy a wedding website for their straight friends. This logic would be amusing if it were not so embarrassing. I suppose the Heart of Atlanta Motel could have argued that Black people may still rent rooms for their white friends. Smith answers that she will sell other websites for gay or lesbian clients. But then she, like Ollie McClung, who would serve Black people take-out but not table service, discriminates against LGBT people by offering them a limited menu. This is plain to see, for all who do not look the other way.
The only “embarrasment” here is that the dissent fails again to address the distinction between a creative work and selling something off the shelf. Renting a preexisting hotel room is the same as selling a cake off the shelf. The analogous case to 303 would be Sarah, if she operated the hotel, refusing to decorate the room in Klan regalia as opposed to renting it as is.
Most of us rightly think that non-discrimination laws should not compel a Black web designer to make a pro-Klan website, but that is exactly where the rule Justice Sotomayor proposes in her dissent would take us.
Let us also return to Rachel and Vikram. Rachel should not have to bake the cake, and I hope everyone reading this agrees. But again, religion and race are protected characteristics. So under Justice Sotomayor’s proposed scheme, Rachel would be liable for both religious and racial discrimination for refusing to bake a cake with a swastika. I suppose Sarah and Rachel can take solice that being compelled to design offensive creative works is, according to Justice Sotomayor, merely “incidental” to a “content-neutral regulation.”
Why is the liberal side of the Supreme Court bench proposing rules that would compel Black web designers to make pro-Klan websites and Jewish bakers to bake cakes with swastikas?
Are They Still Liberals?
The answer to why the liberal side of Supreme Court bench is no longer defending free expression is simple: they are no longer liberal. Liberalism is about promoting and defending the rights of the individual to think, speak, and act in accord with the dictates of their consciousness. With the 303 decision, this is clearly no longer the case.
I wrote last year about the right of bodily autonomy in the context of abortion. I remain committed to the right of bodily autonomy, as does the so-called liberal side of the bench. But at least equally important is the right to autonomy of the mind. The right to think as you will, to speak your mind as you will, to worship the divine as you will (including refusing to do so entirely). But the so-called liberal side of the bench has turned against mental autonomy. What ever happened to defending the rights of someone to say something even if you disagree with it? I disagree with Lorie Smith on the subject of marriage equality, but I respect her right to believe as she does even if I don’t respect the belief itself. I respect her right to speak her mind even if I disagree with what she has to say. I respect her right not to be forced to endorse something she opposes even if I am in favor of that same thing.
It’s worth noting that yet another presidential election is on the horizon. This means we can expect the usual fear-mongering from the Democrats where they tell me I need to vote for their candidate for president for the sake of the Supreme Court. After 3030, I will keep in mind that their favored judicial candidates are now hostile to free expression. I will vote accordingly.
Digging into the theological merits of her position is beyond the scope of this essay, and to my mind is probably not a discussion worth having.
I will not consider the issue of standing nor the controversy about how it was created in this case.
It is also telling that the dissenting justices do not consider any hypotheticals such as these that put their proposed legal regime in a negative light.
Could she though? Would not adding the same Bible quote to every website she makes constitute disparate impact discrimination against religion under Justice Sotomayor’s own reasoning?
If this statement is factually true, then it applies only to the New Testament. Recall from the Old Testament that Jacob (for one) had two wives, Leah and Rachel.
Section 2(C) of her dissent.