It's debatable: Does public-accommodation law violate First Amendment?

In this week's "It's Debatable" segment, Rick Rosen and Charles Moster debate on 303 Creative LLC v. Elenis and whether a state public-accommodation law employed to compel an artist to speak or stay silent violates the First Amendment. Rosen is the Glenn D. West Endowed Research Professor of Law at the Texas Tech University School of Law and a retired U.S. Army colonel. Moster is founder of the Moster Law Firm based in Lubbock with seven offices including Austin, Dallas, and Houston. 

Rosen 1:

The Supreme Court will again hear a challenge to Colorado’s Anti-Discrimination Act (“CADA”) prohibiting discrimination based upon sexual orientation. In 2018, the Court addressed the statute in Masterpiece Cakeshop v. Colorado Civil Rights Commission, where a baker refused to make a cake celebrating same-sex marriage based on his religious beliefs. The Court ruled against the Commission on procedural, not substantive, grounds. 303 Creative involves a web-designer who wants to create websites celebrating marriage, but because of her religious beliefs, she refuses to make websites for same-sex marriage, thereby contravening CADA. 303 Creative sued the state claiming (in part) that CADA violates the Free Speech Clause.

303 Creative’s owner, Lorie Smith, is a graphic artist who creates custom websites reflecting her personal artwork. Rather than passively hosting customer-generated content on her online platform, Smith actively creates each website and retains final editorial control over its contents. Smith is also a Christian who declines requests to create content inconsistent with her religious beliefs. Smith wants to design wedding websites; however, because she believes marriage is only between one man and one woman, she will not make websites for same-sex marriage. CADA, however, prohibits statements on Smith’s website explaining the basis for her refusal to design same-sex marriage websites and requires she design such websites.

Smith’s websites constitute speech: they are the medium through which she communicates her ideas. The government may not violate her freedom to express ideas by requiring her to display speech with which she disagrees or to forbid content she wants to include. The First Amendment exists to ensure the state does not use the machinery of government to compel uniformity of opinion. Indeed, the Supreme Court has consistently ruled that the government cannot compel speech, most notably in Hurley v. Irish-American Gay, Lesbian & Bisexual Group, in which the Court unanimously held that a Massachusetts public accommodation law could not be used to alter the expressive content of a privately organized St. Patrick’s Day Parade by requiring the inclusion of a gay, lesbian, and bisexual group. Otherwise, as the dissenting judge in the lower court noted, “the State could wield CADA as a sword, forcing an unwilling Muslim movie director to make a film with a Zionist message or requiring an atheist muralist to accept a commission celebrating Evangelical zeal…. [CADA] does so here, making Ms. Smith’s artistic talents the vehicle for a message anathema to her beliefs.”

Moster 1:

The 303 Creative Case sets up a “false flag” which erroneously suggests that a Colorado Public Accommodation statute is depriving the owners of a website the first amendment right to deny design services to same-sex couples based on their religious beliefs.  This argument is not only incorrect from a constitutional law standpoint but accomplishes precisely the opposite result – the denial of civil rights and liberties to protected groups.

The Colorado Anti-Discrimination Act (CADA) is a public accommodation law which prohibits businesses from denying services based on a person’s protected class.  In the case before the Supreme Court, Lorie Smith, the owner of a website design company, has made clear her refusal to extend services to same-sex customers predicated upon her religious beliefs and thus challenges the constitutionality of CADA.  As discussed, Smith and 303 Creative are dead wrong and unfortunately many legal scholars, including my debate partner, have taken the bait.

For starters, as pointed out in numerous briefs, any judicial consideration of the case at this juncture is premature as Ms. Smith has not alleged a single instance where she has denied design services to a same-sex customer.  Her challenge to CADA is entirely hypothetical which should be summarily dismissed based on what lawyers refer to as a lack of “ripeness”.  What this means is that a legitimate dispute has not been presented to any court, let alone the highest tribunal in the land – the Supreme Court.  This controversy is entirely manufactured and caters to the most dangerous propensity of our judicial system which has been roundly criticized by conservatives – the inclination to bypass the democratic process by engaging in the creation of “judge-made” law.  This consideration of this case is dangerous and exemplifies the current political nature of the Supreme Court which has lost credibility across the board.

Moreover, as pointed out by numerous states attorneys general and in a recent brief filed by the Wisconsin DOJ, the challenges to CADA concocted by Ms. Smith fly in the face of the long and accepted tradition of public accommodation laws which safeguard protected groups from racial discrimination within the context of commercial services.  Wisconsin correctly states that if businesses open to the public can exempt themselves from anti-discrimination laws based on personal objections to serving all customers “many Americans would face exclusion from a host of everyday businesses, or at the very least, face the ever-present threat that any business could refuse to serve them when they walk in the door, simply because of their race, religion, sex, or sexual orientation.”

Tragically, the 303 Creative Case if upheld by the Supreme Court, would achieve such a discriminatory result.  It is a classic “false flag” which appears to buttress our fundamental belief in the sanctity of civil liberties but accomplishes precisely the opposite.

Rosen 2:

First, this case is ripe for judicial review. True, Lori Smith never denied her services for a same-sex marriage because, fearing a CADA prosecution, she refuses to create any marriage websites. The lawsuit is a pre-enforcement challenge to CADA. Such actions are justiciable if the issues are purely legal in nature and a plaintiff faces an imminent risk of prosecution. As the lower court stated, Smith’s “potential liability is inherent in the manner [she] intends to operate—excluding customers celebrating same-sex marriage.” Indeed, Colorado aggressively prosecutes CADA cases as exemplified by its continuing crusade against the Masterpiece Cakeshop. Smith should not be forced to choose between refraining from engaging in speech on the one hand and engaging in speech and risking a costly CADA prosecution on the other.

Second, Smith generally creates websites without regard to the sexual orientation of those seeking her services. She believes, however, that marriage is between one man and one woman and does not want to express views contrary to that belief. Colorado argues that Smith’s personal messages represented by her art constitute a “public accommodation,” and it wants to dictate what Smith may or may not say regardless of her personal beliefs. The First Amendment flatly prohibits such compelled speech.

Third, Charles argues that the lawsuit bypasses the democratic process. In one respect he is correct. The nation does not need a Free Speech Clause to defend popular speech; the guarantee of free speech is needed only to protect speech with which the majority of people disagree or even detest. A free society, as described by Adlai Stevenson, is one in which it is safe to be unpopular. I do not personally subscribe to Smith’s beliefs, but to paraphrase Voltaire: While I may not agree with Smith’s views, I will unswervingly defend her right to express them. Or as Justice Robert Jackson eloquently declared: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” The very purpose of the First Amendment is “to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.”

Moster 2:

Lorie Smith and her company have demonstrated absolutely no evidence to establish a “a credible threat of enforcement” and consequently, the case is not “ripe” for review by the Supreme Court.   Those courts which have considered whether business owners have standing to bring pre-enforcement challenges to antidiscrimination laws mandate that the state must take significant action.  In a recent 2021 case out of Virginia, the court found no credible threat of enforcement in a lawsuit brought by a photographer who refused to photograph same-sex weddings based on his religious views. No one had approached the photographer to work at a same-sex wedding which is analogous to the facts in 303 Creative.  See, Updegrove v. Herring (E.D. Va.).

Critically, Rick fails to address my primary concern that this case would result in the deprivation of civil rights and liberties to all protected classes based on race, religion, and sexual orientation.  The constitutionality of public accommodation laws such as CADA are the lifeblood of antidiscrimination statutes which prohibit businesses from illegally denying services.  As the Wisconsin DOJ asserted in its legal brief, the invalidation of CADA would allow businesses to exclude services to anyone based on First Amendment considerations.  Such an exception would blast open the doors to widespread abuse.

The proponents of 303 Creative fail to recognize the distinction between the commission of discriminatory “acts” (prohibited by public accommodation laws) and the constitutionally protected speech under the First Amendment.  The U.S. Supreme Court has long acknowledged this critical line of constitutional demarcation.  As set forth in Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations (1973), antidiscrimination laws appropriately apply to prohibit commercial actors from discriminating in commercial transactions, even though those commercial actors remain free to express their view on such laws in public discourse.

Rick informs that Ms. Smith “believes, however, that marriage is between one man and one woman and does not want to express views contrary to that belief”.  Ms. Smith if free to espouse her opinion with abandon notwithstanding the recent Supreme Court decision in Obergefell v. Hodges (2015) that same-sex marriages are legally protected in the U.S.  What she cannot do is deny commercial goods or services to a constitutionally protected class which she is seeking to achieve via the bogus First Amendment challenge in 303 Creative.  It is that obvious to me.

It is not difficult to predict the exclusionary result which would arise in the event the Supreme Court rules in favor of 303 Creative.  Let’s say a massive company like Hobby Lobby which has advertised itself as a “Christian Company” decides to deny services to any customer of a different religious belief based on the identical rationale espoused by 303 Creative and Ms. Smith.  Certainly, such overt and reprehensible discrimination would be opposed.  However, the chances of Hobby Lobby getting another Supreme Court “feather in its cap” would be greatly enhanced.  This is certainly not far-fetched, as comedian, Bill Maher, recently pointed out on his blog:

“Hobby Lobby took out a full-page ad saying that only Christians should be involved in running the country. If you’re not Christian, and you’re shopping at Hobby Lobby, you’re paying for your own persecution. And if you are Christian and are shopping there, apparently cheap yarn means more to you than the lives of your friends.  Do better. Shop at Michael’s, Jo-Anne’s, or the internet.”

Michael’s has higher prices, but I may be shopping there sooner than later.

This article originally appeared on Lubbock Avalanche-Journal: It's debatable: Does public-accommodation law violate First Amendment?