The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Prof. McConnell is one of the top First Amendment law scholars in the country, and I was delighted that he passed along this item:
Much of the commentary on today's argument in 303 Creative starts from the premise that the case pits free speech (or maybe religious freedom) against LGBTQ rights. The headline in The Economist reads: "A new Supreme Court case may dampen protections for LGBT people." Anyone listening carefully to the argument will discover that this framing is off the mark. Both sides in the argument were peppered with hypotheticals—some of them bizarre—about other possible scenarios if the Colorado law that has been interpreted to require a web designer to use her talents to celebrate a same-sex wedding is upheld. Or struck down. The hypotheticals involved all manner of speech on one side or the other of questions related to discrimination of one sort or another—religious discrimination, political belief discrimination, pro-LGBT advocacy, and any other messages you can imagine that involve one group favored over another.
One thing is clear from the argument: 303 Creative is not about whether protections for LGBT people will be dampened. The decision will apply across the board. The question is whether civil rights protections properly include the suppression of speech that disagrees with legal norms, or compels speech that celebrates those norms. Alternatively: do artists (including web designers) have the freedom to depict what subjects they wish, and how—even if they take money for doing it, and even if their perspective is hurtful (to some people)?
One of the most telling exchanges during the argument involved a hypothetical from Justice Barrett, who asked the Deputy Solicitor General Brian Fletcher (whom I consider a friend: full disclosure), supporting the Colorado law, what would happen if the shoe were on the other foot—i.e., what if a gay web designer declined to create a custom website for a Christian organization that advocates for traditional marriage? Could the state compel such a person to design such a website?
Remarkably, Brian responded that the two cases should come out differently. That is, Colorado can compel a Christian to design a custom website celebrating a same-sex marriage, but cannot compel a gay person to design a custom website advocating for traditional marriage. His reasoning for this answer reveals the fundamental flaws in the government's position.
According to the Deputy Solicitor General, declining to design a website for a same-sex marriage is inherently a form of "status discrimination," which the government can treat as a form of "conduct" (not speech) and therefore compel or suppress as it sees fit. But declining to design a website promoting traditional marriage is discrimination based on the message (not status) and is therefore protected speech.
There are several problems with this argument. First, it embraces a blatant form of viewpoint discrimination. Whether an expressive activity is "conduct" that discriminates based on "status," or instead is "speech" on the basis of "message," and thus protected, cannot depend on which side of the issue you are on. It is hard to imagine a regime more antithetical to the principle that the government must not favor or disfavor speech based on its viewpoint.
Second, as Justices Barrett and Gorsuch noted, declining to design a website promoting traditional marriage can easily be deemed "status discrimination," too. Built into Justice Barrett's hypothetical was the fact that the organization promoting traditional marriage was doing so based on its Christian beliefs about marriage. Religious beliefs are no less central to the status of "religion" than beliefs about marriage are to the status of being gay. So refusing to design the Christian website discriminates not only based on the message, but also based on the religious beliefs of the person seeking to express it. In other words, the message (celebrating traditional marriage) is inextricably intertwined with the religious beliefs of the customer requesting it, just as the government claims a message celebrating a same-sex marriage is inextricably intertwined with the status of the individuals requesting it.
Justice Alito illustrated this problem with a related hypothetical: What if a Jewish website designer declines to design a website celebrating a marriage between a Jew and a gentile based on the belief that intermarriage is an existential threat to the future of Judaism? The lawyer for the State of Colorado said Colorado can compel the Jewish designer to produce the site. This may get credit for candor. But it also illustrates the troubling consequences of the government's position.
I am moved to add my own personal favorite hypothetical. What if a Jewish florist is asked to design the floral display of white lilies on Easter Sunday morning at a Christian church? Ordinarily, flowers are just flowers. But the lilies in church on Easter morning are a symbol of the new life in Christ. I cannot believe that a free nation would compel a Jewish florist to construct a symbol of Christ's resurrection—on pain of losing the right to be a florist. The government was forced to concede that public accommodation laws do not always trump free speech and free exercise rights. But where is the stopping point—other than which beliefs are in favor with the government at a particular point in time?
Just last Monday, Vladimir Putin signed a law that blocks Russians from promoting same-sex relationships "or portraying them as normal" in advertising and media, backed by fines up to $6400 for individuals or $80,000 for organizations. We would never do that. But the reason is not the content of the messages being forbidden, but our commitment to the principle that people are entitled to express their own views free of government coercion.
Third, the government's position is not limited to web designers. It would apply to any speech the government deems "status discrimination." Thus, speechwriters, singers, painters, photographer all can be compelled to create speech and art celebrating same-sex weddings (but can't be compelled to create speech and art promoting traditional marriage). The government tried to resist this conclusion on the ground that artists might not be deemed "public accommodations." True! And important! Never before have expressive services like art and web design been deemed to be public accommodations. It is essential to artistic freedom that artists have the right to choose their own subject and their own perspective—even if other people find their work shocking. (Remember Mapplethorpe?) The fundamental problem in this case is that the Colorado courts interpreted the state law of public accommodation, which is about basic non-expressive services like electricity and hotel rooms, as including the right to compel an artist or web designer to use their creative talent to express something they do not believe. When state courts make this mistake, the First Amendment comes into play as a corrective.
No, the issue debated in 303 Creative is not whether protections for LGBTQ people will be curtailed. It is much smaller, and much larger, than that. Smaller: because all actual protections against discrimination in public accommodations will remain in place. No one has the right to compel other people to use their expressive talents to celebrate their status; civil rights laws have never required this for any protected class and the Colorado law should not have been interpreted to do so. And larger: because the case is really about artistic freedom and the right of people engaged in expressive professions to determine their subjects and perspective. If the State of Colorado can require this web designer to create a website celebrating a message contrary to her sincere beliefs, there will be no end of it.