Supreme Court Might Allow Vendors to Discriminate Against Customers
Imagine you’re getting married. You’ve worked with a bunch of commercial vendors to plan the perfect ceremony: florist, baker, photographer, one of those wedding website companies, and of course the custom dressmaker and tailor.
The big day finally arrives, the vendors are on site, but just as guests start arriving something odd happens. The florist looks over the wedding program and comes over to you, saying, “You cannot use this officiant. His religious beliefs are heretical. You need to find someone else.” Then the photographer approaches you and explains, “It looks like you plan to have men and women mixed together in the wedding party. That is not appropriate. You have to change it.”
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The website designer is next, grabbing your arm and saying, “I just read the vows you plan to exchange and there are sentiments I object to. Here is a list of edits you need to make.” The dressmaker, tailor, and baker are all waiting their turn. When you ask the vendors whether they have lost their minds, they look at you with solemn expressions and respond, “You may think this is your ceremony, but you are using our flowers, our photographic services, our website design, our custom clothes. That means this wedding is promoting our message. We are the speakers here.”
This is not some dystopian nightmare. It is the constitutional argument some wedding vendors are making when they claim a First Amendment right to turn away customers based on their sexual orientation or gender identity, or indeed, their race, sex or religion.
The conservative majority of the Supreme Court may be poised to embrace that argument in 303 Creative v. Elenis, one of the cases this term that threatens to be a blockbuster.
If the court buys what these vendors are selling, the result would not be limited to the wedding business. These commercial bakers, photographers, and website vendors claim that they are special because the goods and services they sell involve creative or artistic skill. The First Amendment gives people broad protection from being punished or targeted for their speech, and these businesses claim they are being punished for refusing to create messages they disagree with.
But public accommodation laws—statutes that prohibit businesses from discriminating against customers based on race, religion, sex, or sexual orientation—do not punish speech. These laws don’t care whether you sell websites and wedding photography services or half-caf lattes and HVAC repair. They say the same thing to every business, “Whatever goods or services you sell, you cannot refuse to do business with customers because they are Jewish, or Latino, or gay.”
So why do these vendors think they get to play by different rules? This gets back to the dystopian wedding scenario.
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The Supreme Court has repeatedly told businesses that discrimination in commerce is not protected by the First Amendment. Law firms cannot refuse to promote women, and private schools cannot refuse to admit Black students in defiance of antidiscrimination laws—because discriminatory conduct in the marketplace “has never been accorded affirmative constitutional protections.”
At the same time, the court has made it clear that private expressive events are different. Thus, when litigants used a state public accommodation law to compel the inclusion of their group in the Boston St. Patrick’s Day Parade—a huge spectacle, but a private expressive event—the court unanimously held that the government cannot regulate the message of a private speaker who stands on the street corner to announce his message. The parade organizer was protected because he was acting as a private speaker.
Wedding vendors are trying to argue that they are just like street-corner speakers. When these businesses sell their goods and services, they claim that the creative or artistic skill they put into their work means they are the “speakers” in this situation and have a right to control “their message.”
So, the website designer tells you to rewrite your vows, or the photographer demands that men and women must not mix at your ceremony, because using their goods and services turns your wedding ceremony into their expression.
This is not how the world works.
When businesses sell goods and services involving creative and artistic skill, customers are not paying for the privilege of promoting the business owner’s ideological agenda. They are paying for goods and services tailored to their own needs, using the skills the business owner has decided to monetize by selling them in the public marketplace.
The difference is fundamental.
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An artist who paints on her own time and sells her work in a gallery cannot be told by the government what to paint, but if an artist sets up a portraits-for-hire store in the commercial marketplace and offers to paint the likeness of paying customers for a fee, she cannot selectively refuse to do business with Asian women, Latino men, or anyone else who is protected from discrimination.
Artists enjoy many constitutional rights, but they cannot set up a no-Jews-allowed store or a no-gays-allowed bakery in the public marketplace.
People pay wedding vendors to help craft their perfect day. You hire the baker because he makes beautiful and delicious cakes or the website designer because she puts out a good product. Hiring a vendor does not turn the owner of that business into the “speaker” at your ceremony.
If the Supreme Court says otherwise, there is going to be a lot more discrimination in the public marketplace and it will not just be gay couples getting turned away.
Tobias Barrington Wolff is the Jefferson Barnes Fordham Professor of Law, University of Pennsylvania Law School. He was lead appellate counsel on behalf of the lesbian plaintiff in Elane Photography v. Willock, a case in which the New Mexico Supreme Court rejected a “right to discriminate” argument by a commercial wedding photographer.
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