A Selective Preview of the SCOTUS Oral Argument in 303 Creative v Ellenis (Web Designer Claiming Free Speech Right Not to Promote Same-Sex Weddings)

 by Michael C. Dorf

Next week the Supreme Court will hear oral argument in 303 Creative v Ellenis, which poses the question that the Court ducked in the Masterpiece Cakeshop case in 2017: whether the application of a public accommodations law to a business owner who provides expressive goods or services violates the business owner's right to free speech where the goods or services convey a message of celebration of or support for same-sex marriage and the business owner opposes same-sex marriage? In Masterpiece Cakeshop the Court ducked the issue by deciding the case on the ground that members of the Colorado Civil Rights Commission expressed religious bias (a dubious interpretation of the record, in my view). Although 303 Creative also comes from Colorado, and although the plaintiff's certiorari petition sought review on issues of both religious liberty and free speech, the Court took the case to consider only the free speech issue. It's possible that the Court might avoid the issue again, this time on standing or ripeness grounds, but more likely we will get a ruling on the issue the Court ducked in Masterpiece Cakeshop.

Needless to say, with this reactionary Court, I'm not optimistic. The U.S. Court of Appeals for the Tenth Circuit ruled against the web designer plaintiff. I doubt that SCOTUS granted review simply to pat the Tenth Circuit on the back for a job well done. So while I hope Colorado wins this case, I expect Colorado to lose. Even so, it matters how Colorado loses almost as much as whether the state wins or loses. As I explained in a Verdict column after the oral argument but before the SCOTUS judgment in Masterpiece Cakeshop, a robust free speech right to resist public accommodations laws could fatally undermine anti-discrimination law.

In the balance of today's essay, I'll elaborate on a distinction I offered in that column. I'll also make some further observations about 303 Creative. And I'll write next week's Verdict column on whatever happens during the oral argument.

In that 2017 Verdict column, I noted how anyone could in principle object to anti-discrimination law or, for that matter, nearly any other law, on the ground that complying will in some circumstances carry with it a tacit message that the object of the law does not espouse. I wrote:

A cake without an articulate message on it—something like “God blesses this union of two men”—does not constitute the “speech” of the person who baked the cake, because if it does, then hairdressers, cooks, waiters, and just about everybody else would have a potential right to opt out of public accommodations laws.

To be sure, decorating a cake could be inherently communicative even without words. I suppose that a baker asked to bake a cake with an image of two grooms or two brides has a more substantial claim that she is being asked to endorse same-sex marriage than is a bartender asked to provide drinks at the wedding. So if the Court were to follow my suggestion and distinguish between the provision of goods and services that carry articulate messages and those that do not, it would need to draw some fine lines. Still, that would be better than a holding that any time one engages in an activity that one regards as expressive, one has a prima facie right against complying with a law that requires some kind of tacit expression one disapproves. The latter view would blow up anti-discrimination law and potentially law itself (because people can hold views inconsistent with the tacit messages of complying with virtually any law).

One reason I have for wanting the Court to limit the universe of regulated actors who can make free speech objections to anti-discrimination (and other) laws is that I lack confidence that this Court will say the application of such laws satisfies strict scrutiny. In Hobby Lobby v. Burwell, for example, Justice Alito's majority opinion dismissed the specter of religious exemptions from laws forbidding race discrimination and sexual orientation discrimination (both raised in Justice Ginsburg's dissent) on the ground that government has a compelling interest in combating race discrimination. The majority's silence about sexual orientation discrimination in that case suggests that Justice Alito and one or more of the Justices who joined his Hobby Lobby opinion think that the government lacks a compelling interest in combating discrimination based on sexual orientation.

Such a view cannot be justified, even if the Court does not regard sexual orientation as a "suspect classification" in its own right, because the interests that the Court has deemed compelling have no necessary connection to the kinds of discrimination that trigger strict scrutiny. But I'm not confident that the current Court wouldn't pretend that there is such a connection to reject the government's compelling interest.

Let's suppose that the Court finds, as the Tenth Circuit did, that the application of Colorado's public accommodations law to a web designer infringes her free speech. Even I would concede that this will be true in some circumstances. We can imagine all sorts of offensive material that the potential client of a web designer might seek. Although the rejection of business from neo-Nazis or Klansmen would not run afoul of conventional anti-discrimination laws, some jurisdictions have broader requirements for serving all comers or against discrimination on the basis of politics. At least in those jurisdictions, we can imagine a clash between the legal obligation and a very sympathetic free speech claim.

What about narrow tailoring in the actual case? The Tenth Circuit found that Colorado's law was not narrowly tailored to advancing its interest in protecting LGBTQ+ customers from dignitary harm but that it was narrowly tailored to promoting "equal access to publicly available goods and services." To my mind, that slices the seitan pretty thin.

Suppose that 303 Creative sets up shop in a storefront in Denver next door to an equally good or better web design shop that welcomes business promoting same-sex weddings. If 303 Creative rejects the business of a same-sex couple, the principal--indeed the only--injury the couple suffer is to their dignity. They need only go down one door to get the same or better services as a straight couple. It's true that when 303 Creative denies them service it does not treat them equally with straight customers, but the reason we care about that is not because they will be denied equal goods or services; it's because the discrimination is a dignitary harm. So while I agree with the Tenth Circuit's bottom line, I'm not persuaded by the distinction between dignity and equality.

That's a minor point, however. The main point is that I think the Tenth Circuit got it right. The law survives strict scrutiny. Or at least it should.

Finally, I'll add a further thought about the classist bias of this whole line of inquiry. If you own an expressive business, you can raise objections based on free speech. But if you are merely employed by an expressive business, you're out of luck. If your boss at the print shop says "print the white supremacist customer's posters with the swastikas" and you refuse, your boss can fire you without offending the First Amendment, because the print shop is not a state actor to which the First Amendment applies.

Now one might say that employees seal their fate when they accept a job with a boss who might not allow them to opt out of expressing views they do not hold. But note that the arguments advanced for 303 Creative do not put owners to any such choice. If owners were treated the same as workers, then the Court would say that 303 Creative didn't have to go into the web design business in Colorado, but having done so, she sealed her fate and won't be heard to complain about having to comply with anti-discrimination law. I highly doubt the Court will say that.

So "free" speech in this context is really a misnomer. It's speech for business owners, not for workers.