This week, the Supreme Court ruled for the first time that businesses generally open to the public can nonetheless discriminate against LGBTQ customers.
At issue in the 303 Creative LLC v. Elenis case was an evangelical Christian website designer from Colorado who did not wish to offer the same services to a same-sex wedding couple that she would offer to a heterosexual couple. The court ruled that, as an artist, the designer would be engaging in speech protected by the First Amendment by selling her customized services and thus could not be compelled to serve those whose wedding plans contradict her beliefs about marriage. Indeed, she could not be required to take down a message saying that she won’t serve gay couples.
Until this week, under long-standing state public accommodations laws, if a business wanted all the benefits that came from being generally open to the public, then it had to serve all customers equally. Since 1964, this principle has applied to a motel in the heart of Atlanta, Ollie’s barbecue joint in Birmingham, Ala., and social clubs and private schools that advertised to the general public. As Justice Sonia Sotomayor noted about the historic case involving Ollie’s, it would not do for the owner to have said, “I’ll serve Blacks but only on a takeout window, not inside my restaurant because that sends a message that I endorse integration.”
By twisting free speech into a license to discriminate, the court has now carved out an exception from public accommodations law for businesses that recast their services in ways that highlight their expressive features. But the court offers no workable principle to cabin that exception in any meaningful way.
One major problem with the court’s premise is that no reasonable observer would attribute to the website designer the message that she endorses gay marriage merely because, as required by a state antidiscrimination law, she designs a website for a couple regardless of their sexual orientation. The designer isn’t speaking for the couple — she just creates a medium for their message. And Colorado’s law doesn’t prevent her from making that clear to everyone.
Writing for the majority, Justice Neil Gorsuch relied on a prior case in which the court ruled that the organizers of the Boston St. Patrick’s Day parade could not be compelled to include a float bearing a banner for the Irish-American Gay, Lesbian and Bisexual Group of Boston. But the unanimous opinion in that case stressed that while parade organizers could exclude the banner, they could not exclude marchers simply because they were gay or lesbian. So that case does not remotely support this decision’s radical misuse of free speech doctrine.
The court left conspicuously unanswered the sensible questions justices asked at oral argument last December: What if a website designer refused wedding business from an interracial couple because of moral objections to such marriages? Or interfaith marriages? Only Sotomayor’s dissenting opinion even mentioned the 1967 Supreme Court decision striking down bans on interracial marriage, adding: “How quickly we forget that opposition to interracial marriage” often reflected religious beliefs akin to those of the web designer in this case. What if a photographer doesn’t want business from a person with disabilities? What if a photo store doesn’t want its “Scenes with Santa” to include photos of a white Santa holding a Black child?
These questions show that there is no way to cabin the decision and limit it to LGBTQ customers or to limit the demeaning message the court’s decision itself sends to any particular category of individuals. As the dissent powerfully shows, the court’s decision demeans our nation’s aspirations to equality and inclusion and thereby diminishes us all.
During oral argument, Justice Samuel Alito tried to distinguish between “honorable” religious objection to same-sex marriage, worthy of respect in his view, from opposition to interracial marriage, which he rejected as indecent even if religiously motivated. His voice was absent from this ruling, and the majority opinion by Gorsuch avoided basing the decision on judgments about which religious messages are honorable and which are prejudiced. Every law student learns that government has no authority to decide whose religious beliefs depart indecently from the norm.
Of course, discrimination against interracial and interfaith marriage is indecent. But who is any justice to tell us that discrimination against same-sex couples is different, not really a matter of prejudice but honorable when religiously inspired?
Recently, the Boston Red Sox released a pitcher who had posted homophobic tweets about gay people being bound for hell unless they repented. The fact that the player was sincere in his religious beliefs did not keep the Red Sox from seeing the harm that his speech caused. But the Supreme Court does not see, or care about, the harm its decision portends.
The hostility of a majority of justices to the 2015 Supreme Court case protecting same-sex marriage is so open that, until they can follow Justice Clarence Thomas’s call to overrule that decision, they are determined to strip same-sex couples of civil rights protections that other lawfully married couples enjoy.
For many years, the court stopped short of overruling Roe v. Wade, until it did in 2022. For many years, the court stopped short of declaring affirmative action unconstitutional, until it did this week. The same-sex marriage equality decision stands for now, but it should be added to the list of endangered precedents.
As Sotomayor rightly concludes, “It is a sad day in American Constitutional law” when the highest court in the land closes its term with a decision that affronts the basic dignity of us all, for “the promise of freedom is empty” if government “is powerless to assure that a dollar in the hands of [one person] will purchase the same thing as a dollar in the hands of a[nother].”
Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus at Harvard University. Jeffrey B. Abramson is professor of government and law emeritus at University of Texas at Austin and a former Middlesex County assistant district attorney.