A Paucity Of Limits, By Stipulation: 303 Creative v Elenis

Both Em Carpenter and David Thornton (twice) have touched on facets of the 303 Creative v. Elenis case just handed down by the Supreme Court. Please take a few moments and read their columns. I’ll not belabor their fine work here, though as you’ll see I am more pessimistic about the case than David.

Once you’ve done that, the factual background can be treated lightly: Lorie Smith lives in Colorado. She is an evangelical Christian whose religious belief structure rejects same-sex marriages. She is a web designer. Her services are offered to the general public and are therefore a “public accommodation.” She considered expanding her business to include wedding websites. But the Colorado Anti-Discrimination Act contains a prohibition against discrimination in public accommodations like her business based on sexual orientation. She fears that she would be compelled by Colorado’s law to create and publish websites that endorse same-sex marriages, contrary to her sincerely-held religious beliefs.

She brought a declaratory relief action against Colorado to clarify her rights, as was her ability and right under a Federal law dating back to 1948. She did not seek to invalidate the entire Colorado Anti-Discrimination Act; this was an “as-applied” challenge, a request for an exception to the law that would apply to her specifically, leaving the law generally applicable otherwise.

Smith and the State of Colorado stipulated to certain facts. They stipulated that Smith would provide services to LGBTQ-community clients for websites that didn’t involve weddings. They also stipulated that Ms. Smith’s services would be “unique services” that would be “unavailable elsewhere,” in part because Smith’s original and readily-identifiable artwork, “customized and tailored” for the individual wedding, would be used on the websites she proposed to design. So we are not discussing something fungible, like a physical product.¹

Colorado lost the case because of these stipulations.

The majority holding focused on the fact that a website is inherently speech, inherently an expressive activity. Compelling speech with which an individual disagrees is the same thing as censoring their speech: a violation of the First Amendment. That isn’t a particularly new or controversial concept. E.g., West Virginia v. Barnette, 319 U.S. 624 (1943). No one in 303 Creative argued against this idea, nor should they have.

After reciting the facts and procedural background, the majority then invokes Barnette, and then effectively its reasoning stops there. Bear in mind, it’s a Neil Gorsuch opinion, so it takes just under 6,800 more words after invoking Barnette to reach that stop. Everyone, including Justice Sonia Sotomayor writing in dissent, agrees that compelled speech is bad and presumptively unconstitutional. As a result, I’m not prepared to say that the particular result here is wrong, although it’s with kind of a heavy heart because the precise ruling punches down. Still, respecting rights means respecting them when others use their rights in ways you dislike, and I respect the right to not be compelled to speak contrary to one’s own conscience.

After all, Colorado stipulated with Smith that any wedding website Smith might create would constitute her speech. There was no agreement that on a wedding website, the speakers are the couple getting married, who have sponsored and paid for the site and who hold the ultimate authority, as between vendor and customer, over what does or does not go on it. Lorie Smith would not agree to that.

My gripe with the case is that the ruling lacks any limits or contours. Even back when the Masterpiece Cakeshop case was pending, what I was looking for was the boundary between free speech and antidiscrimination law. It’s possible to have both, after all, but if there are no limits, one will eventually eclipse the other.

The majority opinion does not take seriously the dissent’s notion that there ought be some sort of brake on the scope of the exception to enforcement to laws generally that the opinion writes into the law. Under the guise of judicial modesty, Justice Gorsuch writes for the majority, “Well, that sounds kind of difficult, and we don’t have to figure that out today, after all, we have stipulations:”

Instead of addressing the parties’ stipulations about the case actually before us, the dissent spends much of its time adrift on a sea of hypotheticals about photographers, stationers, and others, asking if they too provide expressive services covered by the First Amendment…. But those cases are not this case. Doubtless, determining what qualifies as expressive activity protected  by the First Amendment can sometimes raise difficult questions. But this case presents no complication of that kind. The parties have stipulated that Ms. Smith seeks to engage in expressive activity. And the Tenth Circuit has recognized her services involve “pure speech.” … Nothing the dissent says can alter this—nor can it displace the First Amendment protections that follow.

So left for another day is the question “How much of an expressive component must a commercial activity have to gain the benefit of the 303 Creative exception-to-enforcement rule?” Consider, for example, another hypothetical posed by Elie Mystal:

…a diner owner can absolutely tell me “I don’t like n******” when serving me lunch, but he still has to serve me lunch. He doesn’t have a free-speech objection to providing me a service that I am willing to pay for, no matter how deeply he hates me. He can be a jerk about it. He can name his business “Raisins in Potato Salad”; he can dedicate all of the sandwiches on his menu to Confederate generals and serve me on a plate emblazoned with a swastika. But he has to serve me.

I disagree with Mystal. I think the Racist Diner is not offering equal services to its black and white customers. Granted, I, too, would be quite uncomfortable there, but I’d be both qualitatively and quantitatively less uncomfortable than Mystal. Were he and I dining together, I’d object to the diner’s messages in sympathy with him — but those messages aren’t aimed at me, they’re aimed at him. Naming a cheeseburger after Nathan Bedford Forrest would possibly elicit even the same words from both he and I, but Nathan Bedford Forrest didn’t actually murder my ancestors and people who looked like them (for trying to vote), and that’s a difference between Elie Mystal and myself that no amount of good intentions or sympathy on my part is going to change. His experience at the Racist Diner would be fundamentally different than mine.

303 Creative, LLC isn’t The Racist Diner, of course. We have stipulations that prove this! It’s stipulated that Lorie Smith will happily design a website for gay customers who don’t ask her to say “gay weddings are cool,” and even Mystal agrees that the state shouldn’t be compelling Ms. Smith to say “gay weddings are cool.” But what if she puts up a sign-of-the-fish symbol and a bunch of crosses and an explicitly Christian slogan?  These aren’t hate symbols like what’s at The Racist Diner. But they do convey something about the business: the owner is the sort of Christian who wears her Christianity on her sleeve. To me, that means she’s likely a socially conservative evangelical.

By implication, there’s a signal that certain kinds of customers are not going to be as welcome as others, certain kinds of things of which socially conservative evangelicals disapprove, that a potential customer might hesitate to request and she might hesitate to accept. That those impliedly-less-welcome customers aren’t exclusively gay people looking to get married would be helpful to the fact that gay people are offered unequal service as a practical matter: they are among the people thus discouraged.

So such a thing, even as innocuous as a sign-of-the-fish symbol, does discourage people in a suspect class from seeking the purportedly open-to-the-public business far more than it does straight people. And while straight people can certainly want to express their support of same-sex marriages, straight people are pretty unlikely to want to get married to same-sex partners themselves. This has a disproportionate impact and therefore, under existing law, is discriminatory. Justice Sotomayor makes this plain enough in her dissent:

The majority protests that Smith will gladly sell her goods and services to anyone, including same-sex couples. Ante, at 2, 17. 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.¹² I suppose the Heart of Atlanta Motel could have argued that Black people may still rent rooms for their white friends. Smith answers that she will sell other websites for gay or lesbian clients. But then she, like Ollie McClung, who would serve Black people take-out but not table service, discriminates against LGBT people by offering them a limited menu.¹³ This is plain to see, for all who do not look the other way.

And for all of the majority’s invocation of the nobility and majesty of the First Amendment’s guarantees of freedom of conscience, the Constitution also directly authorizes anti-discrimination statutes, at least at the Federal level. Article XIV, Section 5. Although it’s quiet about this base for the argument, Colorado did that it has a compelling interest in preventing discrimination, in part because this Constitutional provision appears to mandate anti-discrimination legislation. That’s a shoot-the-moon sort of play, but not necessarily a bad gamble.

After all, we know that speech may be abridged Constitutionally, if the abridgment is in furtherance of a compelling state interest and the abridgment is narrowly-tailored to realize that interest. (Again, this is well-worn legal territory, going back to United States v. Carolene Products Company, 304 U.S. 144, 152 & fn. 4 (1938).) So since combatting discrimination in economic activities is a compelling interest, Colorado argues, we must ask what a narrowly tailored restriction on Smith’s rights looks like. Since Smith’s speech is unique and not fungible, it’s not enough to say that there are other web designers available who are willing to do same-sex marriage websites. That stipulation means Smith’s services have to be equally available at some level, Colorado argued. What she can do is publish an appropriate disclaimer of her clients’ message, so as to separate her own speech from her clients’ speech. No dice from the majority on that point, though, because Colorado stipulated that any website to be designed later was Smith’s speech, and not her clients’.

This is why I say Colorado lost the case at the stipulations. If the ONLY speakers on a wedding website are the couple getting married, Smith is not speaking for herself at all. Her free speech isn’t implicated to begin with. If her artistic abilities are unique and offered to the public, she has to offer an equal experience to all. Colorado tried to shoot that moon. They didn’t get past Barnette and failed. That’s what happened here. Frankly, if there were some notion that Colorado had fallen short of some reasonable boundary, I could live with this result a lot easier.

No one mentioned a case from nine years ago. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014) saw the owners of a privately-held, for-profit corporation resist enforcement of a portion of the PPACA mandating that the company provide health coverage to its employees that included contraception. They invoked their own sincerely-held religious beliefs, which they had woven into their corporation’s governing documents, and won an exception to that portion of the law as a result. The majority opinion in Hobby Lobby went out of its way to insist…

We do not hold, as the principal dissent alleges, that for-profit corporations and other commercial enterprises can “opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.”

The majority further assured us that anti-discrimination laws were not affected by the then-new majority bloc’s interpretation and application of statutory religious freedom guarantees:

The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. … Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.

Yet here we are after 303 Creative, and we now know that contrary to the Hobby Lobby majority opinion, invocation of an individual’s religious belief can and does trump anti-discrimination law. Just as some of us predicted after reading the briefing in the Hobby Lobby case.²

Though 303 Creative appears, on its face, to be limited only to business activity that inherently involves communication, such a purported limit looks weak indeed after Hobby Lobby. Most religious activity is protected by the speech and association clauses of the First Amendment, not the religion clauses. Moreover, there is likely no business activity that does not, or cannot, have some degree of expressive communication infused into it.³ So if one intentionally injects religious beliefs into one’s business (for instance, Hobby Lobby’s owners call their for-profit business of selling glitter and colored construction paper their “Christian ministry,”⁴) it turns out there are ways to avoid the application of the law, and 303 Creative gives those exception-seekers another path to that destination.

Nine years ago, Justice Ruth Bader Ginsburg warned us that we were on a path towards the law becoming generally avoidable by invocation of subjective religious beliefs. Today, if you want to avoid some law on such a claim, you will need to go to court and litigate it. But we see no limits on your ability to do so successfully beyond the transaction cost and delay inherent in court proceedings. If you are a Christian, though, legal advocacy groups like the one that represented Ms. Smith will help you at no charge, ameliorating these transaction costs. (There don’t seem to be any organizations willing to help out non-Christians with similar claims, at least not ones that are successful at this level.) But ultimately, as Lorie Smith demonstrates, a majority of the unelected mandarins who sit at One Constitution Street NE will find a way to rule in your favor. Maybe it’s going to be the Religious Freedom Restoration Act. Maybe it’s going to be the First Amendment. Maybe next time it’s going to be the Equal Protections Clause, who knows? But they always seem to find something… and it always seems to be Christians, and no other kind of plaintiff, who benefit from their intellectual labors.

I don’t claim that we now live in a Gilead-like Christian theocracy imposed by the Supreme Court. Such a society would see more sweeping and overt advantages given to members of the favored religious group at the expense of other kinds of people. But nine years after Hobby Lobby, the law is still made to privilege religion, and indeed a specific religion, to an unhealthy degree. We ought treat religious belief neutrally and as a purely personal matter. Instead, we empower its practicioners to avoid the law.

I’m not suggesting that the law should not make reasonable allowances for people who have sincere religious beliefs to hold and practice those beliefs — consistent with the law being fair and equal for everyone. But I am calling out that the gate Hobby Lobby opened remains so: our highest court continues to articulate no limit on how people who just happen to always be Christians (and mostly socially conservative evangelical Christians at that), can find ways to avoid having to obey laws that they find inconvenient.

1. The opinion has a meander about whether, for instance, wedding invitations are effectively fungible for purposes of the law (they are not).
2. That was a really fun nerdy law-bloggy project.
3. Maybe this can even be done inadvertently., Ask the manufacturers of Bud Light.
4. I continue to believe, as I wrote nine years ago, that a corporation is incapable of holding a religious belief, and that it is legally distinct from its owners. But practically, that argument is now lost.