The new, mysterious constitutional right to discriminate

The Supreme Court just announced a new, vague category of businesses that have a constitutional right to discriminate against anyone for any reason they like. I’d like to explain to you what the law is now. I can’t do that, because it can’t be done.

303 Creative v. Elenis concerned Lorie Smith, who owns a graphic design firm. She wants to expand her business to include custom-designed wedding websites, but she opposes same-sex marriage on religious grounds. So she won’t design sites for same-sex weddings and wants to say that on her own promotional website.

But the Colorado Anti-Discrimination Act (CADA) bans businesses that are open to the public from discriminating against gay people or announcing their intent to do so. She sued the state, seeking a preemptive ruling that this law couldn’t be applied against her.

Supreme Court Justice Neil Gorsuch, writing for the majority, agreed: First Amendment free speech means that law may not “compel an individual to create speech she does not believe.”

He relied on a 1943 case holding that schoolchildren could not be compelled to say the Pledge of Allegiance, in which the court said that “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” 

The analogy is strained. The children could not possibly avoid the compulsion to say the pledge, but no one is required by law to operate a business that is open to the public. Now, however, some of those businesses can discriminate against potential customers or clients. Which ones? It depends on how expressive they are. How can courts decide that? Where is the line? 

Faced with what he called a “sea of hypotheticals about photographers, sta­tioners, and others,” Gorsuch conceded that “determining what qualifies as expressive activity protected by the First Amendment can sometimes raise difficult ques­tions.”

But, he wrote, no one disputes — indeed, the parties stipulated — that “Ms. Smith seeks to engage in expressive activity.” But everything humans do expresses something. In an earlier case, Masterpiece Cakeshop v. Colorado, Gorsuch joined an opinion by Justice Clarence Thomas saying that food preparation (selling a wedding cake) was sufficiently expressive that the seller had a right to discriminate.

Justice Sonia Sotomayor wrote in her dissent that “A website designer could equally refuse to create a wedding website for an interracial couple. … A stationer could refuse to sell a birth announcement for a disabled couple because she opposes their having a child. A large retail store could reserve its family portrait services for ‘traditional’ families. And so on.”

Gorsuch doesn’t respond. It will take years of litigation to find out what “expressive” means. The fact that the parties stipulated that one business is expressive does not entail that “expressiveness” is a workable test for courts. What if the parties had stipulated that some websites are blessed by angels? 

Gorsuch’s decision also repeatedly cites a strange, silly statement in the poorly reasoned decision of the Tenth Circuit, which Smith was appealing from. That court, after acknowledging that there is a risk of excising some ideas from the public dialogue, said that “Eliminating such ideas is CADA’s very purpose.” Gorsuch calls this a “finding,” even though courts of appeals are not permitted to find facts (that is the trial court’s job) and this one wasn’t found by the trial court or stipulated by the parties.

He then accuses Sotomayor’s dissent of “approving a government’s effort” to accomplish that purpose. A law is invalid if it seeks to accomplish an impermissible end. His claim implies that all antidiscrimination laws are unconstitutional in all their applications. He doesn’t mean that, of course. More mystery. 

Gorsuch has developed a habit of misattributing purposes to statutes and then complaining that the purposes either were bad ones or were being pursued in a discriminatory way. His own concurrence in Masterpiece presented a convoluted misinterpretation of Colorado’s simple requirement that one treat all customers alike, in order to claim that people whom the law didn’t even mention were thereby treated unfairly.

Now he claims that “Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.” This is just false. Colorado wasn’t trying to force anyone to do anything. Smith sued the state, aggrieved by what she thought it might do sometime in the future.

On the one hand, the decision might be interpreted narrowly, to apply only to businesses that take specific commissions for unique artwork. On the other hand, the free speech theories floated in Masterpiece, to which Gorsuch was sympathetic, were so broad that they would protect absolutely any discrimination, or for that matter any other conduct, that a court wanted to protect.

Gorsuch’s casual way with inconvenient facts, and vague statements of the law, suggests that we can’t be confident of what just happened. The court, however, is supposed to tell us what the law is, not just hand opaquely reasoned victories to every conservative Christian who walks in the door. 

Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed” (St. Martin’s Press). Follow him on Twitter @AndrewKoppelman.