"Free Speech, Same-Sex Marriage, and Anti-Discrimination Laws"

A podcast conversation on 303 Creative between Joshua Matz and me, hosted by Jeffrey Rosen.

From the National Constitution Center:

On Monday, December 5, the Supreme Court heard oral arguments in the 303 Creative v. Elenis case. The petitioner, Lorie Smith, is an artist and website designer in Colorado, who says creating wedding websites for same-sex couples against her personal beliefs would violate her First Amendment rights of freedom of speech and religions, because is would require her to create messages inconsistent with her religious beliefs, and bar her from posting those beliefs on her website. A Colorado public accommodations law states that businesses open to the public can't discriminate on the basis of sexual orientation or state an intent to do so. Smith brought a lawsuit challenging the law. Colorado counters that the law does not require or bar any speech, and exempting Smith from the law would "upend antidiscrimination law—and other laws too." Eugene Volokh of UCLA Law and Joshua Matz of Kaplan Hecker & Fink join host Jeffrey Rosen to recap the arguments and discuss the issues at stake.

Please subscribe to We the People and Live at the National Constitution Center on Apple Podcasts, Stitcher, or your favorite podcast app.

This episode was produced by Melody Rowell and engineered by the National Constitution Center's A/V team. Research was provided by Kelsang Dolma, Sam Desai and Lana Ulrich.

Participants

Joshua Matz is a partner at Kaplan Hecker & Fink LLP and an adjunct professor at Georgetown University. His practice includes complex commercial disputes, constitutional and civil rights law, and Supreme Court and appellate litigation. With Larry Tribe, Matz is the co-author of Uncertain Justice: The Roberts Court and the Constitution and To End a Presidency: The Power of Impeachment.

Eugene Volokh is the Gary T. Schwartz Distinguished Professor of Law at UCLA Law School. He is the author of the textbooks The First Amendment and Related Statutes and Academic Legal Writing, as well as over 90 law review articles. He is the founder and coauthor of The Volokh Conspiracy, a leading legal blog.

Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.

Comments

[BravoCharlieDelta]

What's the difference between designing a gay wedding website and designing a gay wedding cake?

[Cheerio]

Well, the line between speech and conduct can be tricky -- but notably, it always used to be the left who argued for a broader definition of speech (e.g., in strip club cases, Scalia argued *unsuccessfully* that it was 'conduct' rather than speech...).

I think that was debatable at the time...but if stare decisis matters, we should now all have to stick with that very sweeping standard...

[David Nieporent]

Well, Scalia mostly lost the battle but won the war; whether conduct or speech, the regulations were almost always upheld.

[y81]

The chattering classes don't believe in enforcing morality, but they do believe in protecting property values, which are diminished by having a strip club nearby,

[Brett Bellmore]

It's harder to make the cake gluten free.

[Doug Heffernan]

The volokh guy seems to think that cake baking can't be anything like speech or any sort of creative work.

But at the same time he thinks photography and portrait painting are clearly creative enough to be something like speech. Maybe not house painting though.

I'd say that all of that stuff is creative. Wedding cakes are expensive not because of the mixing of the ingredients and time spent baking, but because of all of the elaborate decorating work, which more often than not is custom work.

Listening to this episode, I have no idea how the volokh guy was drawing these lines. But he definitely was drawing them. And I guess he wants courts to do this line drawing too. Good luck to everyone trying to do that.

Maybe line drawing is a creative work too, and the justices could object to drawing lines about gay stuff on religious grounds.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

I was under the impression that it is not cake baking itself, nor even basic stars and swoops decorating, but messages in the decoration "Happy Gay Wedding" or such.

[David Nieporent]

"Happy Gay Wedding" would obviously be speech. But, for instance, in the Masterpiece Cakeshop case, the baker did not object to anything specific about the cake's design or words; he objected to making a cake for a gay wedding. He refused the potential customers from the outset; they never got to discussing what the cake might look like.

(Also — and this is irrelevant to the legal issues — I keep seeing people talking about the scenario you describe, but wedding cakes generally do not have writing on them at all. People seem to be picturing a sheet cake (which would) rather than a wedding cake.)

[David Nieporent]

I think you're making a category error here. Cake baking, like many other endeavors, can certainly be creative. But "creativity" is the test for copyrightability, not the test for whether something is speech. Whether it expresses an idea is.

[Doug Heffernan]

Sure, but there probably also is a gradient scale as to what counts as an idea and what amounts to its expression. All of this can be blunt or subtle. More lines to draw.

The chinese holding blank sheets of paper to protest covid lockdowns were probably expressing some kind of idea.

And whether there is an idea expressed or not may be somewhat subjective, dependent not just on the expresser of what may possibly be an idea, but also upon any number of recipients and their interpretation. Lots of speech can be conveyed without saying or printing a word. Just ask my passive-aggressive wife.

Most of the hypotheticals and other thought experiments involve a proposed transaction between a sole proprietor (or owner) of a business and an individual potential customer. How about the case where the owner of a website design company (or bakery) couldn't care less about any of this, and just wants as much business as possible. But an employee refuses to do some work that might be considered expressive of an idea by such employee? Would there be any problem with the owner of the business firing the employee for refusing to do the work?

[Josh R]

Wrong? I don't know. Permitted by the Constitution? Most certainly because even assuming it is speech, it's required for the job.

[Doug Heffernan]

Most of the population is more likely to be an employee rather than an employer (or self-employed). Such employees can only dream of having the flexibility to exercise their conscious (or what Volokh calls the individual freedom of mind) against governmental power. The more immediate and proximate source of power with ultimate leverage over them is that of their employer. It is the employer's way or the highway, and all of that is perfectly constitutional.

So, it seems that the benefits of constitutional protections in these sorts of domains are mostly for owners. Volokh says "surely, requiring some to write a poem, or requiring someone to paint a painting, or requiring someone to write a press release, or requiring someone to write text on a wedding website, is even more an interference with individual freedom of mind"

But for most people, there will always be an employer intermediary that is doing the "requiring". Volokh says that the choice of giving up one's career or business is no real choice at all, but that is the choice that all employees must make because there is no constitutional protection from private power.

[Brett Bellmore]

OTOH, there are a multitude of private business owners, while there is only one government. So, if a private business owner decides to impose a particular requirement, you can move to a different employer. Not frictionless, of course, but the possibility tends to restrain the employers.

Well, the non-woke ones, anyway. The woke ones seem to prefer losing money to compromise. And not so much the monopolists, because then you might need to change careers, too. But, the woke and the monopolists have a large overlap, don't they?

But if it's the government imposing the requirement, changing employers gets you nothing. If it's the federal government, even moving to a different state is futile. (Which is part of the reason the left prefers to handle things at the highest level of government possible: It makes evasion harder.)

So, while having your employer impose requirements on you that are unrelated to getting the job done sucks, it doesn't suck nearly as much as having the government do it.

[David Nieporent]

I already tried to explain the difference to you between words and batter. If it hasn't sunk in by now, it probably never will.

[Cheerio]

I realize "whataboutism" can be overdone, but it has a role. So in that vein, it's notable that we now have restaurants refusing service to traditionalist Christians: https://www.cbsnews.com/news/metzger-restaurant-cancels-reservation-for-christian-family-foundation/

Note -- the restaurant wasn't being asked to 'customize' anything for an event or message they disagreed with. This is just plain old-fashioned bigotry and discrimination (albeit against different groups now).

[Krychek_2]

One problem with whataboutism is that frequently it's not even an apples to apples comparison. The restaurant did not kick them out because they were Christians; the restaurant kicked them out because they were anti-abortion activists. I believe it already is illegal in most if not all jurisdictions to discriminate against Christians because of their religious beliefs, but "anti-abortion activist" and "Christian" are not synonymous. If they'd gotten kicked out for being pro-abortion activists, that would have been legal too.

[y81]

What if it was a gay rights organization? "Gay rights activist" and "gay" are not synonymous, but I'm guessing the State of Colorado wouldn't be quite so pedantic.

[Krychek_2]

No, that's still not the point. The issue isn't that they were activists; it's the *specific political question* and position they were advocating. Suppose there were a gay organization that advocated for legalizing prostitution, and the restaurant (quite legally) refused to serve them. The fact that the members of the group are all gay would not be the point; the point is that that specific group exists for the specific purpose of advocating a position the restaurant isn't interested in being connected to. As of now, viewpoint discrimination remains legal. You can have this restaurant over here that refuses to serve Democrats and that other restaurant over there that refuses to serve Republicans.

We can have a conversation about whether viewpoint discrimination should be illegal, but as of now, it isn't.

[y81]

No, suppose what I supposed. This restaurant is happy to serve the Alliance Defending Freedom and the NAACP, but they refuse to serve any organization that advocates for gay rights. You are saying there is no problem, legally, in Colorado?
Note that Prof. Volokh and his comrades assured us that Elayne Photographers and others in similar fields would have no legal problem refusing to provide services to gay weddings, and they were wrong.

[Krychek_2]

I think it would be legal to serve the NAACP and the Alliance Defending Freedom but not a group that advocates for gay rights, unless you're in a jurisdiction that specifically protects viewpoints. I gather from one of the comments below there are some such jurisdictions.

Again, whether it should be is a separate question.

It's a bit of a fine hair to split, but the difference between advocating a viewpoint and having a gay wedding is that a gay marriage is more closely tied to homosexuality itself. It goes to the heart of actually being gay.

[Josh R]

I think Colorado would permit a restaurant to not serve an organization because they advocate for gay rights.

[y81]

Well, maybe someday we'll find out if you are better lawyer (in the sense of correctly predicting legal outcomes) than Prof. Volokh.

[Brett Bellmore]

Well, yeah, but "groups my allies like enough to include in the law" vs "groups my allies dislike, and so omitted from the law" isn't relevantly apples to oranges.

[Krychek_2]

But who the legislature likes and dislikes is a quintessential political question. You want anti-abortion activists to be legally protected, take it up with your state rep.

[The Margrave of Azilia]

Back in 2018, Prof. Volokh listed some laws against political discrimination in places of public accommodation. So I guess it’s a question of which jurisdiction’s laws you prefer. If you think sexual orientation should be a protected class but politics shouldn’t, you’ll need to make that case.

https://reason.com/volokh/2021/10/18/bans-on-political-discrimination-in-places-of-public-accommodation-and-housing/

One interesting example:

"Harford, Howard, and Prince George's Counties (Md.) ban discrimination in public accommodations and housing based on "political opinion," defined (with immaterial variation among the ordinances) as "the opinions of persons relating to government, or the conduct of government; or related to political parties authorized to participate in primary elections in the State.""

[Brett Bellmore]

And as a political question, we're free to find the choices offensive.

Now, if your position is really just, "We're in power, sucks to be you!", that IS a coherent position. But I take you to be making more of a normative case for the way things are.

[Krychek_2]

I think "we're in power, sucks to be you" is probably the originalist position, in which the legislature can largely do as it pleases absent explicit language in the Constitution to the contrary, and that's yet one more reason why I'm not an originalist.

My position is twofold. "That's the way it is" explains why, legally at least, it's not an apples to apples comparison and therefore yet another example of whataboutism typically grasps at straws to find something, anything, that kinda sorta looks on point even if the connection doesn't withstand analysis.

But as far as what policy should be, I would be fine with making viewpoint discrimination illegal and telling the restaurant they can't ban the anti-abortion group.

[Brett Bellmore]

"I think “we’re in power, sucks to be you” is probably the originalist position"

The originalist position is that state governments CAN go all "sucks to be you" where constitutional rights don't stop them. It's not that they ought to, just that they can.

It's not the originalists here justifying "sucks to be you". It's YOU justifying it.

[Krychek_2]

No, I’ve said that’s the law, not that I agree with it. And under an originalist interpretation it’s just fine that that’s the law.

[Brett Bellmore]

No, under an originalist interpretation it's constitutionally permissible that its the law, not "just fine". Originalism, sort of like libertarianism, is about what you are permitted to do, not what you ought to do.

I guess it's like the distinction between consequentialist and deontological theories. Under the sort of utilitarianism popular on the left, the distinction between "may" and "ought" tends to collapse, because they're all about ends, not means.

But under more deontological theories like originalism or libertarianism, which are about means, not ends, the distinction between "may" and "ought" is profoundly important, and to say that somebody is allowed to do something is in no way an endorsement of them doing it.

[mikeybates]

So if a baker said that he will make a cake for a gay guy who is marrying a woman, but not one marrying a man, the courts will accept that he is not discriminating on the basis of sexual orientation?

[Dr. Ed 2]

"were anti-abortion activists"

As opposed to anti-sodomy activists?
I don't think you can separate the protected belief and political belief -- and Christian theology is "love the sinner, hate the sin."

[Josh R]

I think it would be legal in Colorado to kick out anti-sodomy activists.

[Krychek_2]

Dr. Ed, not all Christians believe homosexuality to be a sin. Many Christians support gay marriage.

[Ed Grinberg]

Let a private business owner discriminate. Against anyone he wants to.

[Rev. Arthur L. Kirkland]

" traditionalist Christians "

That's a cute euphemism for obsolete, gay-bashing, right-wing bigots, who no longer want to be known as bigots (at least not in public) because better Americans have won the culture war and are shaping our national progress against the preferences and efforts of Republicans and conservatives.

[Roger S]

So the Christian-bashing left-wing bigots have won. Congratulations.

[The Margrave of Azilia]

I requested the AI to write a rebuttal to your remark:

"It is unfair and unhelpful to paint any group of people with such a broad and negative brush. While there may be some individuals who fit this description, it is not fair to label all traditionalist Christians as such. Furthermore, it is important to recognize that everyone has the right to their own beliefs and opinions, and it is not productive to attack or belittle someone simply because they may hold different views. Instead, we should strive to engage in respectful dialogue and understanding."

[Rev. Arthur L. Kirkland]

This context involved bigots. A commenter tried to obscure that point. Not all traditionalist Christians are bigots. But plenty are, and their bigotry should not be whitewashed. They are deplorable bigots.

[Cheerio]

The only bigots in this case were with the restaurant. True bigotry isn’t about having a different belief, it’s about trying to *impose* it on others. Only the restaurant was trying to do that. The customers were happy to live-and-let-live, as part of a pluralistic society.

Fortunately, Congress recently rejected the “progressive or bigot” paradigm in passing the Respect for Marriage Act. That bill *explicitly* acknowledged that good (i.e., non-bigoted) people can legitimately hold either traditional OR progressive views on sexuality, gender, and marriage — so long as NEITHER side imposes their view on the other.

Pluralism or bust!

[ReaderY]

The controversies concern a few borderline cases where it could be debated whether the activity is speech or not. There seem to be agreed parameters by a large majority of and perhaps all the justices. If it’s speech, it’s protected, if it’s not speech, it isn’t.

The Justices on the left argue the activity isn’t really speech. Some on the right argue it isn’t really a public accommodation.

While there is lot of fuss about which way to classify the borderline activities, the outcome won’t affect the overwhelming majority of activities, whose status is clearer.

In general, the media’s portrayal of this case as involving a conflict between public accommodation laws and free speech just isn’t so. It’s pretty much agreed that free speech trumps public accommodation laws. There is no conflict, that outcome isn’t going to be revisited. Whether wedding web site design is or isn’t classified as speech won’t affect that in the least.

It’s something of a tempest in a teapot.

[Josh R]

Matz argued that even speech is usually trumped by public accommodation laws because the speech is usually the customer's not the provider's. I'm guessing Sotomayor and Jackson agree with him (I don't).

[scattergood]

To be a bit pedantic, here is Title II, Section 42 USC 2000a(b), which defines Public Accommodation:

42 U.S.C. §2000a(b) Each of the following establishments is a place of public accommodation within this title if its operations affect commerce, or if discrimination or segregation by it is supported by State action: (1) any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence; (2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment; or any gasoline station; (3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment; and (4) any establishment (A)(i) which is physically located within the premises of any establishment otherwise covered by this subsection, or (ii) within the premises of which is physically located any such covered establishment and (B) which holds itself out as serving patrons of any such covered establishment.
https://www.justice.gov/crt/title-ii-civil-rights-act-public-accommodations

Exactly how is a website designer, or a wedding cake designer an inn, hotel, motel that provides lodging, or a restaurant, cafeteria, etc. meant for the on-site consumption of food, or a location for the exhibition of entertainment, or an establishment that holds itself out as serving patrons thereof?

Definitions matter, and the Federal government has NOT defined Public Accommodation as any business serving any product or service to the public.

[Josh R]

This case has been brought under Colorado state law which defines a public accommodation to be:

any place of business engaged in any sales to the public and any place offering services, facilities, privileges, advantages, or accommodations to the public, including but not limited to any business offering wholesale or retail sales to the public.

[scattergood]

Thanks for the clarification. That is a very broad definition that basically says if you are in any business, the state can control your actions.