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The Narrow Way ;), Parts 4-6


When Masterpiece Cakeshop came down, the Savvy take was to take Anthony Kennedy as his word that this would be a very narrow opinion confined to a specific set of facts. I think this was incredibly naive even had Kennedy remained the median vote on the Court, but it’s certainly moot now, as the Court has once again negated the application of Colorado civil rights law, in a case with essentially no facts at all:

On Friday, the Supreme Court dealt a devastating blow to LGBTQ+ nondiscrimination laws, carving out a First Amendment exception any time a law “compels” a business to “express” a message about sexual orientation with which it disagrees. In the words of Justice Sonia Sotomayor’s dissent, the opinion “is, quite literally, a notice that reads: ‘Some services may be denied to same-sex couples.’ ”

The case, 303 Creative v. Elenis, was manufactured by the Alliance Defending Freedom, a Christian law firm that opposes LGBTQ+ equality in all walks of life. 303 Creative is a for-profit Colorado business owned and operated by Lorie Smith, who opposes same-sex marriage. No same-sex couple has ever tried to hire Lorie Smith to create a website for their wedding. Represented by ADF, however, she filed a preemptive lawsuit demanding a First Amendment right to turn away any same-sex couples who request a wedding website. So the case is built entirely on hypotheticals, and there is no real record to speak

Justice Neil Gorsuch’s 6–3 opinion for the court got around this problem by insisting that Smith faces a “credible threat of enforcement” because Colorado acknowledges that it will enforce its civil rights law. He went on to declare that “Colorado seeks to compel speech Ms. Smith does not wish to provide,” speech that would be “celebrating marriages”—those of same-sex couples—of which she does not approve. (The state insists that it would not compel Smith to actually design a wedding website but merely to sell a preexisting template to all customers; Gorsuch simply dismissed this claim, while simultaneously criticizing the state for its ostensible eagerness to punish Smith and other anti-gay business owners.) He applied various precedents limiting the state’s ability to “compel” expression, including Boy Scouts v. Dale (which gave the Boy Scouts a right to exclude gay people) and West Virginia v. Barnette (which gave Jehovah’s Witness schoolchildren a right to opt out of the pledge of allegiance).

The difference between those decisions and 303 Creative, of course, is that this case involves a commercial enterprise, not private individuals or expressive associations. Thus, as Sotomayor wrote in dissent, Friday marks “the first time in its history” that the court has granted “a business open to the public a constitutional right to refuse to serve members of a protected class.” Never before has the court held that the government cannot compel commercial enterprises to serve all customers equally on constitutional grounds. This issue was litigated during the civil rights movement of the 1960s, and the Supreme Court unanimously found no First Amendment right to discriminate in public accommodations. (The court also declined to do so in 2018’s Masterpiece Cakeshop, but as the dissent pointed out, the court’s personnel has changed dramatically since then, with two new Trump-appointed justices having fill the seats previously held by Anthony Kennedy and Ruth Bader Ginsburg.)

I recommend Melissa Gira Grant for further reading on how phony this case was.

Justice Sotomayor puts this decision in broader context:

The decision is also incompatible with the general conceptual framework of civil rights law:

Given the fundamental incoherence of Gorsuch’s opinion, exactly how far the Court will push this is unknowable — but this is not in any way a narrow or minimalist opinion, and all signs point to things getting worse rather than better.

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