Supreme Court of the United States: While deliberating over the instant case wherein a Colorado based graphic designer intending to expand her services to include creation of wedding websites, but only for marriages that align to her personal beliefs vis-à-vis the institution of marriage, came before the SCOTUS seeking clarification of her rights; the Court with a ratio of 6:3 held that First Amendment of the US Constitution prohibits Colorado from forcing the website designer to create expressive designs speaking messages with which the designer disagrees. Relying on a plethora of SCOTUS precedents, the Court stated that First Amendment protects an individual's right to speak their mind regardless of whether the government considers his speech sensible and well intentioned or deeply misguided.
3 Judges in the current 9-Judge composition of the SCOTUS, vehemently disagreed with the majority decision that a particular kind of business, though open to the public, has a constitutional right to refuse to serve members of a protected class. Sonia Sotomayor, J.*, along with Elena Kagan and Ketanji Brown Jackson, JJ., were the dissenting Judges.
Mincing no words, the dissenting Judges termed the majority decision to be profoundly wrong. It was stated that Colorado Anti-Discrimination Act targets conduct, not speech, for regulation, and the act of discrimination has never constituted protected expression under the First Amendment. US Constitution contains no right to refuse service to a disfavoured group.
Noting that the Court, for the first time in its history, grants a business open to the public, a constitutional right to refuse to serve members of a protected class, Sotomayor, J., pointed out that around the USA, there has been a backlash to the movement for liberty and equality for gender and sexual minorities. New forms of inclusion have been met with reactionary exclusion. “This is heartbreaking. Sadly, it is also familiar. When the civil rights and women's rights movements sought equality in public life, some public establishments refused. Some even claimed, based on sincere religious beliefs, constitutional rights to discriminate. The brave Justices who once sat on this Court decisively rejected those claims”.
The dissenting Judges pointed out that a public accommodations law does not force anyone to start a business, or to hold out the business's goods or services to the public at large. Furthermore, these laws also do not compel any business to sell any particular good or service. But if a business chooses to profit from the public market, which is established and maintained by the State, the State may require the business to abide by a legal norm of non-discrimination. In particular, the State may ensure that groups historically marked for second-class status are not denied goods or services on equal terms. “The concept of a public accommodation thus embodies a simple, but powerful, social contract: A business that chooses to sell to the public assumes a duty to serve the public without unjust discrimination (…) The legal duty of a business open to the public to serve the public without unjust discrimination is deeply rooted in our history”.
The dissenting Judges also pointed out that over the years, public accommodations laws have expanded to recognize more forms of unjust discrimination, such as discrimination based on race, sex, and disability. “What began with common inns, carriers, and smiths has grown to include restaurants, bars, movie theatres, sports arenas, retail stores, salons, gyms, hospitals, funeral homes, and transportation networks”. The dissenting Judges also pointed out that the wave of inclusivity in public accommodations laws operates on the Common Law principle that “the duty to serve without unjust discrimination is owed to everyone, and it extends to any business that holds itself out as ready to serve the public”.
The Judges stated that LGBTQ+ people, no less than anyone else, deserve that dignity and freedom. In the past, a social system of discrimination created an environment in which LGBTQ+ people were unsafe. The dissenting Judges also highlighted that LGBTQ+ community had to go through a long and bloody struggle to reach where they are now at this point in America. One of the important changes and victories came in when public accommodation laws added sexual orientation and gender identity under protected categories.
It was noted that time and again, businesses and other commercial entities have claimed constitutional rights to discriminate; but the Court has courageously stood up to those claims. Until this instant case. “This Court, however, grants the business a broad exemption from state law and allows the business to post a notice that says: Wedding websites will be refused to gays and lesbians. The Court's decision, which conflates denial of service and protected expression, is a grave error”.
The Dissenting Judges pointed out that the petitioner believes same-sex marriages are “false,” because “‘God's true story of marriage'” is a story of a “union between one man and one woman.'” Same-sex marriage, according to her, “violates God's will” and “harms society and children”. The dissenting Judges also pointed out that 303 Creative has never sold wedding websites and the petitioner who is sole member-owner of the LLC, believes, however, that “God is calling her ‘to explain His true story about marriage.' It was pointed out that the petitioner has never sold a wedding website to any customer. Colorado, therefore, has never had to enforce its anti-discrimination laws against the company.
The Judges also pointed out the petitioner's “astounding” claim of a categorical exemption from a public accommodations law simply because the company sells expressive services. “The sweeping nature of this claim should have led this Court to reject it”. The Judges stated that First Amendment does not entitle petitioners to a special exemption from a state law that simply requires them to serve all members of the public on equal terms. Such a law does not directly regulate petitioners' speech at all, and petitioners may not escape the law by claiming an expressive interest in discrimination. The First Amendment likewise does not exempt petitioners from the law's prohibition on posting a notice that they will deny goods or services based on sexual orientation.
It was pointed out that majority completely ignores the categorical nature of the exemption claimed by petitioners. Petitioners maintain, as they have throughout this litigation, that they will refuse to create any wedding website for a same-sex couple. Indeed, petitioners here concede that if a same-sex couple came across an opposite-sex wedding website created by the company and requested an identical website, with only the names and date of the wedding changed, petitioners would refuse. Which is plain and simple status-based discrimination. “The majority protests that petitioner will gladly sell her goods and services to anyone, including same-sex couples. She just will not sell websites for same-sex weddings. Apparently, a gay or lesbian couple might buy a wedding website for their straight friends. This logic would be amusing if it were not so embarrassing”.
Terming 30-06-2023 a sad day for American constitutional law and for LGBTQ+ people, the dissenting Judges scathingly remarked that the majority has issued a new license to discriminate in a case brought by a company that seeks to deny same-sex couples the full and equal enjoyment of its services, the immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status. In this way, the decision itself inflicts a kind of stigmatic harm, on top of any harm caused by denials of service. “The opinion of the Court is, quite literally, a notice that reads: “Some services may be denied to same-sex couples.””
The Judges implored to imagine a scenario wherein a same-sex couple browses the public market with their child. The market could be online or in a shopping mall. Some stores sell products that are customized and expressive. The family sees a notice announcing that services will be refused for same-sex weddings- “It says to the child of the same- sex couple that their parents' relationship is not on equal footing. And it reminds LGBT people of a painful feeling that they know all too well”.
“This case cannot be understood outside of the context in which it arises. In that context, the outcome is even more distressing. The LGBT rights movement has made historic strides, and I am proud of the role this Court recently played in that history. Today, however, we are taking steps backward.”
The dissenting Judges also cautioned that the majority decision will not only affect the LGBTQ+ community, but even interracial couples in future. “The decision threatens to balkanize the market and to allow the exclusion of other groups from many services. A website designer could equally refuse to create a wedding website for an interracial couple, for example. How quickly we forget that opposition to interracial marriage was often because “‘Almighty God (. . .) did not intend for the races to mix.'”
[303 Creative LL.C v. Elenis, 2023 SCC OnLine US SC 51, decided on 30-06-2023]
*Dissenting opinion was delivered by Justice Sonia Sotomayor