Lorie Smith is a web designer who was considering expanding her business to include designing websites for weddings, but Ms. Smith didn’t want to make her services available to same-sex couples because she has religious objections to same-sex marriages and therefore didn’t want to endorse or celebrate them.
However, the Colorado Anti-Discrimination Act (CADA) disallows venders of goods and services discriminating among individuals or groups based on “disability, race, creed, color, sex, sexual orientation, gender identity, gender expression, marital status, national origin, or ancestry….” Ms. Smith wanted to know if she could nevertheless exclude same-sex couples from the service she would provide.
Chief Justice Roberts wrote the Court’s 6-3 majority opinion in 303 Creative v. Elenis (2023) allowing Ms. Smith to discriminate against same-sex couples. Since the issue concerned compelled speech (would Ms. Smith be compelled to engage in speech that belied her own beliefs?), Roberts considered some precedents on this matter. But, as Justice Sotomayor points out, they weren’t relevant.
Roberts invoked the decision in West Virginia Bd. of Ed. v. Barnette (1943) that allowed a Jehovah’s Witness school girl to refrain from reciting the Pledge of Allegiance to the flag, as required by law of all children at the time. The Witnesses consider all such avowals of allegiance to anyone but God to be blasphemous. The Court ruled that forced speech in this case was unconstitutional. However, this isn’t like Ms. Smith’s situation. The girl in Barnette was required to attend school. No law requires Smith to design websites for weddings.
Another case cited by the Court majority is Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995). Some veterans wanted to exclude expressions of solidarity with gays from their St. Patrick’s Day Parade in Boston. The Court found that the whole point of the veteran group’s parade was to express their manner of celebrating St. Patrick’s Day. The Court ruled that a non-commercial expressive group can be selective in the expressions that it includes. Gays veterans were welcome to be in the parade, but not with expressions of gay pride.
This case isn’t relevant because the veterans weren’t selling a good or service, which is all that CADA concerns. The same difference exists between Ms. Smith’s case and the third precedent emphasized by the Court, Boy Scouts of America v. Dale (2000). Like the parade, the Boy Scouts are considered an expressive organization, transmitting values non-commercially to the younger generation. They are therefore free to exclude openly gay individuals if they want to convey the value of strict heterosexuality.
Lacking an applicable precedent, the Court claims that if Ms. Smith is compelled by the state to create speech at variance with her beliefs, then (quoting the lone dissenter in the appeals court that heard this case), the state could require “an unwilling Muslim movie director to make a film with a Zionist message,” or “an atheist muralist to accept a commission celebrating Evangelical zeal” if they were commercial enterprises creating other messages for different customers.
Justice Sotomayor rejected this view in her dissent, claiming that Steven Spielberg wouldn’t be required to make any film that he didn’t want to make. She’s correct, but didn’t justify her view adequately. I’ll try to do better.
Legally protected classes are all classes of people, not classes of ideas. Movie directors and muralists, like everyone else except the government (which must exercise viewpoint neutrality in certain circumstances), are free to discriminate in their commercial and other work against ideas they disfavor. We couldn’t possibly have a free press or artistic freedom if people couldn’t decide for themselves which ideas to endorse, which to ignore, and which to oppose. So, why can’t Ms. Smith choose to oppose or ignore same-sex marriage?
She certainly can do so, and has done so as a generalist website designer who has expressed many ideas, including for members of the LGBTQ community. She had avoided making websites for weddings because websites for weddings by their nature celebrate and endorse the wedding. So, Smith can’t avoid endorsing same-sex marriage if she serves same-sex couples. But refusal to serve such couples constitutes discrimination against people in a protected class.
If a muralist advertised his business as making religious murals, and would do so for many groups, but not for Evangelical zealots, he should be liable for illegal discrimination just as Smith should be for excluding same-sex couples. It’s the specialization that makes the discrimination unlawful because it transforms the choice to avoid expressing some ideas into discrimination against a protected class of people. If the muralist is a generalist, his refusal to make any particular mural, for Evangelicals or others, would be legal as reflecting his particular interests. He would be discriminating among ideas, not people, just like Steven Spielberg.
In sum, Sotomayor’s dissent is incomplete, but not incorrect.
(Readers are invited to reply to this post at wenz.peter@uis.edu)
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