James W. Pfister: Creativity, discrimination and commerce

The last case of the Supreme Court term this year was provocative: It would allow a graphic designer, Ms. Smith, in a business open to the public, to discriminate against a gay couple regarding their marriage if she had a sincerely held belief that same-sex marriages are morally wrong. Her First Amendment rights would give her the right to refuse them service in contradiction of the state’s public accommodation law which forbids such discrimination. The case is 303 Creative LLC v. Elenis, June 30, 2023. It reversed the Court of Appeals for the 10th Circuit.

My thesis is that no rights are absolute, including the Free Speech Clause of the First Amendment. Fundamental rights can be limited if the strict scrutiny test is satisfied: a compelling governmental interest plus means which are necessary for the achievement of that interest. Here, the compelling interest was the equality of customers in a discrimination-free marketplace. The necessary means was the public accommodations statute (the Colorado Anti-Discrimination Act, or CADA), which would prohibit that discrimination.

The designer’s position was that she did not discriminate against same-sex couples per se, only if they asked her to produce something that violated her conscience, such as creating a website that celebrated their marriage. If they asked for a nature scene, for instance, she would accommodate them.

Justice Neil Gorsuch wrote the majority opinion in this 6-3 case. Justice Sonia Sotomayor wrote a dissent, joined by Justices Elena Kagan and Ketanji Brown Jackson. This was the conservatives versus the liberals.

Gorsuch posed the issue for the majority: “…in this particular case Colorado does not seek to ensure the sale of good or services on equal terms. It seeks to use its law to compel an individual to create speech she does not believe. The question we face is whether that course violates the Free Speech Clause of the First Amendment.” They held that it did.

At the heart of the opinion were precedents which held that government cannot make people speak content against their belief. One such precedent was West Virginia Bd. of Ed. v. Barnette (1943). During World War II the Board required school children to salute the flag and recite the Pledge of Allegiance. Jehovah’s Witness children found this compulsion to violate their religion. Justice Robert H. Jackson famously wrote: “If there is one fixed star…no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” Gorsuch found this “impermissible coercion” to be Ms. Smith’s situation. It was “an impermissible abridgment of the First Amendment’s right to speak freely.” The First Amendment protects “unattractive” speech. He concluded: “…tolerance, not coercion, is our Nation’s answer … where all persons are free to think and speak as they wish, not as government demands.” The Constitution’s First Amendment prevailed under the Supremacy Clause.

Sotomayor objected to the use of the Barnette precedent: “[a] content-neutral equal-access policy is ‘a far cry’ from a mandate to ‘endorse’ a pledge chosen by the Government.” Also, the commercial setting made a difference. She criticized Gorsuch’s choice of precedents as not dealing with commerce, as does 303 Creative LLC. When a business holds itself out as open to the public, the public accommodation laws apply. These laws would be nullified if a business could except out a “protected group.” She stated that “any burden on the company’s expression is incidental to the State’s content-neutral regulation of commercial conduct.” She wrote that “[t]he opinion of the Court is, quite literally, a notice that reads: ‘Some services may be denied to same-sex couples’.”

This unequal, hurtful and disrespectful conduct in a marketplace open to the public is an evil a state would have a compelling interest to prohibit, I believe, even if it incidentally compels a business person to act contrary to her conscience. Compliance to the law affects a person’s acts, not the person’s identity or internally driven speech. The strict scrutiny test applies. A commercial marketplace free from discrimination against protected groups is a compelling interest; the public accommodation law is necessary for this end, allowing a limitation on the First Amendment right. The Court decided otherwise, however. Litigation on what constitutes a business’s expressive right should be robust. Discrimination and cruelty will rise.

James W. Pfister, J.D. University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the Political Science Department at Eastern Michigan University. He lives at Devils Lake and can be reached at jpfister@emich.edu.

This article originally appeared on The Daily Telegram: James Pfister: Creativity, discrimination and commerce