Unanswered Questions in the Web Designer Case
During the oral argument in 303 Creative v. Elenis, Justice Jackson posed a hypothetical example for the plaintiffs' lawyer: would a shopping mall Santa who wishes to create only nostalgic images have a free speech right to refuse to take pictures with Black children, notwithstanding a public accommodations law? Later in the argument, Justice Alito countered with a hypothetical Black mall Santa who wished to avoid taking pictures with a child dressed in a Klan robe. The dueling examples underscored that even though plaintiff Lorie Smith objects to the application of Colorado's anti-discrimination law to require her to provide her wedding website design services to same-sex couples, the principle for which she argued would provide a free speech exception to all public accommodations laws, including those forbidding race discrimination.
In her dissent from today's ruling for the plaintiffs in 303 Creative, Justice Sotomayor made just that point. She wrote:
A website designer could equally refuse to create a wedding website for an interracial couple, for example. How quickly we forget that opposition to interracial marriage was often because “‘Almighty God . . . did not intend for the races to mix.’ ” Loving v. Virginia (1967).
How did Justice Gorsuch, who wrote for the majority, respond? So far as I can tell, he didn't.
In one respect, that's good news. There was a possibility that the Court might say that the government has a compelling interest in combating race discrimination but not discrimination based on sexual orientation. Justice Gorsuch didn't say that. Indeed, he said nearly the opposite. He wrote:
This Court has recognized that governments in this country have a “compelling interest” in eliminating discrimination in places of public accommodation.
In support of that proposition, Justice Gorsuch cited cases involving discrimination based on sex, sexual orientation, and race. So the Court did not say that race is different. States have a compelling interest in battling various forms of discrimination, including based on sexual orientation.
Yet, curiously, Justice Gorsuch never considers the implications of that compelling interest, at least not expressly. He writes: "When a state public accommodations law and the Constitution collide, there can be no question which must prevail."
Really? If a state law violates the federal Constitution, the Supremacy Clause (which Justice Gorsuch cites for the benefit of any dullards reading his opinion) prefers the latter. But if a state law merely infringes a constitutional right--one might say, if the state law merely collides with the constitutional right--invalidation does not follow automatically. The Court's free speech precedents say that the next step is to apply strict scrutiny, which in turn has two prongs. The first prong asks whether the state asserts a compelling interest. And hey! Didn't the Court just say that states have a compelling interest in anti-discrimination law?
So the state should win if it can pass the second step of strict scrutiny: a determination whether the law is narrowly tailored to promote the compelling interest. As Justice Gorsuch recounts in the preliminary portion of the opinion, the Tenth Circuit found that the second prong of the test was satisfied. Further, Justice Sotomayor in her dissent says that "a law that prohibits only [invidiously discriminatory] acts by businesses open to the public is narrowly tailored to achieve that compelling interest." So the issue was right there for the majority to decide. And what does Justice Gorsuch say for the majority about narrow tailoring?
Nada. Zip. Zilch. The closest Justice Gorsuch comes to addressing this seemingly crucial question is his rejection of the Tenth Circuit's conclusion that the uniqueness of the plaintiffs' services sufficed to uphold the law. But he does not expressly consider narrow tailoring as such.
That's not the only missing piece in the majority opinion. Justice Gorsuch writes that "the First Amendment extends to all persons engaged in expressive conduct, including those who seek profit (such as speechwriters, artists, and website designers)." In an apparent effort to reassure readers that the holding won't completely eviscerate anti-discrimination law, he adds, quoting Masterpiece Cakeshop v. Colorado, that "there are no doubt innumerable goods and services that no one could argue implicate the First Amendment."
Thus, the right asserted successfully by Lorie Smith and her web design business extends to speechwriters, artists, website designers, and all others engaged in "expressive" conduct as part of their business but not to purveyors of goods and services that don't implicate the First Amendment--presumably what we might call "non-expressive" conduct.
I don't want to suggest that the line between expressive and non-expressive conduct is impossible to draw. After all, to some extent it's necessary for free speech doctrine to operate--although perhaps to a lesser extent than might be assumed: generally, the threshold inquiry in a free speech case is whether a law targets expression, not whether some particular act is expressive. However, I acknowledge that we need to have some idea of what counts as expression to discern whether a law's target is expressive.
Going forward, there will likely be a whole lot of borderline cases. We can assume that the Court as currently constructed will think that bakers engage in expressive conduct. I'm dubious about that assumption, at least with respect to a cake itself, as opposed to decorations or writing on the cake, but at least we know where the Court will likely fall. It will probably also say that photographers are engaged in expressive conduct. What about caterers? Bartenders? Surely Sam Malone (yes, I'm dating myself there) was engaged in an expressive business. Talkative chauffeurs? And what about goods like poop-themed dog toys? Surely, some of those are expressive too.
The majority opinion addresses none of these examples or any like them, nor does it even begin to articulate a standard, much less a rule, for whether goods or services are expressive. Why not? Because, as Justice Gorsuch writes: "The parties have stipulated that Ms. Smith seeks to engage in expressive activity." (Emphasis in original).
To my mind, that's a completely inadequate excuse. Yes, federal courts, including the Supreme Court, decide only the cases before them, but that's in principle. In fact, this Court decides what it wants to decide. Earlier this week, it decided Moore v. Harper despite a very plausible argument that the case was moot. And 303 Creative itself was barely a real case. Smith has never designed a wedding website for anyone, straight or gay. She sued officers of the state of Colorado because she was worried that if she started running her business she would be obligated to serve same-sex couples seeking wedding websites. There was thus a very plausible argument that the case was not ripe.
Given that the Court reached out to decide an issue that wasn't obviously in need of resolution, it surely might have also provided the lower courts, business owners, and state and local authorities charged with enforcing public accommodations laws some guidance about who can and who cannot raise free speech objections to such laws. Its failure to do so invites a whole lot of litigation, at least some of which might have been avoided.