The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In short, I think Justice Kagan asked the most damaging hypothetical for Colorado's argument that the website designer has no free speech right to refuse to create custom websites for same-sex weddings because, the state asserts, the public accommodations law targets discriminatory conduct, and only incidentally burdens speech. What if the designer placed the words, "God blesses this union," on the websites she sold to opposite-sex couples but not to same-sex couples, Kagan asked? That would violate Colorado's law, but in context, would have dramatic implications for the designer's own speech. Colorado had no good answer to this question. And although Brian Fletcher, the U.S. Deputy Solicitor General, gamely defended Colorado's position, he conceded that if the state applied its law in that way, it would constitute a direct regulation of speech (not an "incidental" one). The designer's case would then fall squarely within the domain of Hurley, which held that enforcement of the state public accommodations law to a parade violated the First Amendment because it compelled speech. The implication of that concession is that public accommodations laws are subject to rigorous First Amendment scrutiny where they are applied to an activity that is inherently or historically expressive, like a parade or custom website design. And Colorado, the SG's office, and the appeals court all conceded that such designs are "inherently expressive" or "pure speech."
Fletcher also asserted that discrimination against same-sex marriage and status-based anti-gay discrimination cannot be distinguished. This idea has some support in snippets of Supreme Court opinions. But, I argue, it would have unsettling implications if it could be applied to compel speech that opposes same-sex marriage. Such expression could easily be relabelled as "status-based discrimination" based on sexual orientation, which in some contexts violates state or federal law
Finally, I note that several of the justices (including Kavanaugh, Gorsuch, and Barrett) seemed unprepared to hold that even expressive providers could refuse to serve same-sex weddings in all cases. Some website services, like the sale of plug-and-play websites and other pre-made templates, do not have the same implications for the expression of the designer. But the web designer here is proposing to sell custom designs. That's the service or good that should get free speech protection.
I close the op-ed with this thought:
Since Obergefell v. Hodges, the 2015 Supreme Court decision declaring a fundamental constitutional right of gay couples to marry, there have been hundreds of thousands of same-sex weddings in the United States. Only a tiny portion have encountered wedding service providers who decline to take photographs, arrange flowers, or bake cakes because of objections to same-sex marriages.
The nation's tradition of pluralism under the First Amendment can accommodate the few expressive providers who object to same-sex marriages without impairing the very real need to protect gay people in the public marketplace.