What the Supreme Court did in the gay rights/public accommodation case

The Supreme Court last week said that a website designer may turn away same-sex couples over her belief that marriages are only for unions between a man and a woman. The Court's rationale is that the website designer has a free speech right to reject the State of Colorado's compelled speech that she disagrees with.

The case is 303 Creative LLC v. Elemis, issued on June 30. Colorado law says that no business that serves as a public accommodation, such as plaintiff's website business, may turn away customers because of race, gender, sexual orientation, and other protected classes. So we have a battle between Colorado's policy against discriminating against LGBT customers and the designer's free speech right to avoid compelled speech. In this case, the compelled speech would be her endorsement of same-sex marriages in preparing a celebratory website for the marriage.

The Court rules in favor of the website designer by a 6-3 vote along the usual partisan lines. The justices who were appointed by Republican presidents sided with the designer. The Democratic appointees ruled in favor the same-sex couples who may want to use the designer's website services.

Writing for the majority, Justice Gorsuch notes that the Court has long prohibited the government from forcing people to articulate speech they disagree with, most notably in the pledge of allegiance case from the 1940s, when religious objectors were able to sit down to avoid reciting the pledge. The Court has even allowed people to speak their mind on offensive or socially unacceptable speech. This case is no different, Gorsuch says, because enforcing Colorado's public accommodation law against the website designer would force her to promote a marriage that she does not believe in. Moreover, the majority says, the website designer is engaging in an act of speech in creating a customized personalized website for married couples, which implicates the First Amendment. While the majority recognizes that Colorado has passed a law that prohibits public accommodations (including restaurants, hotels, etc.) from refusing to service the LBGT community, "no public accommodations law is immune from the demands of the Constitution."

Justice Sotomayor writes the three-justice dissent, proving the majority and dissenting justices see this issue very differently, and there is more than one way to analyze a constitutional case. 

Sotomayor opens by stating this is the first time the Court has "grant[ed] a business open to the public a constitutional right to refuse to serve members of a protected class," in this instance a gay couple. She adds that the website designer is engaging in conduct, not speech, so under Supreme Court precedent her expressive rights are diminished. Sotomayor writes that if a business holds itself out as serving the public, that "duty to serve without unjust discrimination is owed to everyone." In support of this principle, she cites cases from the 1960s, when the Supreme Court upheld the federal reasonable accommodation laws against challenges by racist business owners who did not want to service Black customers. One case, from the 1970s, said that "the Constitution places no value on discrimination." A case from the 1980s says that "invidious private discrimination . . . has never been accorded affirmative constitutional protections."