The dissenting opinion in The U.S. Supreme Court case 303 Creative LLC V. Elenis authored by Justice S. Sotomayor and joined by Justices E. Kagan and K.B. Jackson, expresses exceptionally strong opposition to the Court’s ruling. According to Justice Sotomayor it is a historical decision, but in a negative sense. In the case the Court held that the Free Speech Clause of the First Amendment to the U.S. Constitution grants a wedding-website designer who does not believe in same-sex marriages, an exemption from the Colorado Anti-Discrimination Act (CADA). CADA prohibits public accommodations refusing service, among other grounds, on the basis of sexual orientation. In addition, the Court held that the business is permitted to convey to customers a message stating that it will not provide products and services if they are to be used for same-sex marriages.
According to Sotomayor this decision is the first in the history of the Supreme Court to grant a business offering public accommodations the constitutional right to decline to serve people of a protected class. The opinion of the Court and the dissenting opinion such as their reasonings focus on totally different points. Therefore, it is interesting to observe why Sotomayor views the decision as “a grave error” and why she rejects the view that the First Amendment entitles the business owner to deny their services from same-sex couples.
As is typical in the United States common law system where the reasoning proceeds by analogy, Sotomayor looks for precedents from earlier Supreme Court decisions that govern the case at bar. Sotomayor is of the view that the resolving principle in this case can be found from a Supreme Court case called Rumsfeld v. Forum for Academic and Institutional Rights, Inc., (FAIR). The case concerned whether colleges and universities were required to assist military recruitment under the Solomon Amendment and whether this obligation violated their First Amendment right to expressive association. The Supreme Court unanimously held that the Solomon Amendment regulated conduct, not speech, and therefore did not infringe the schools’ constitutional rights. According to Justice Sotomayor’s reasoning, as applied to 303 Creative, “speech is compelled only if, and to the extent that, the business offers the same speech to other customers”. Because the wedding-website business sells its services to the public, it may not refuse to serve same-sex couples.
Secondly, Sotomayor holds that the case should be evaluated under the “O’Brien standard” which was set forth in United States v. O’Brien rather than strict First Amendment scrutiny. According to Sotomayor, the O’Brien standard applies because the purpose of the law (CADA) is not to suppress speech, but to eliminate discrimination and ensure equal access to the market. Moreover, this objective constitutes a substantial government interest which without applying CADA would be achieved less effectively. Thus, Sotomayor states, the application of CADA is consistent with the Constitution.
We can observe here that at the core of the dissenting opinion’s reasoning is a view that is contrary to the Court’s view: that CADA only regulates conduct, not the content of speech. Sotomayor frames an interesting, concrete example explaining why CADA does not restrict speech: the wedding-website company can sell any products and convey any message they wish, even limiting offerings to sites with “biblical quotations” about marriage. However, it cannot refuse service based on sexual orientation. What she observes here is that the company can lawfully reach its desired customer base by simply making the business unwelcoming to gays and lesbians.
Sotomayor rejects the argument of the majority that the company “serves everyone” but simply does not sell its wedding-websites to gays and lesbians. In her view, the company refuses to serve same-sex couples because of their status, even though the service was otherwise identical in content. This in her view constitutes plain status-based discrimination. Sotomayor also criticizes the business owner’s argument about agreeing to sell other types of websites than wedding websites to same-sex couples. Sotomayor likens this to a “limited menu” approach, the principle of offering status-based limited services, which the Court previously rejected as discriminatory in Katzenbach v. McClung.
Sotomayor admits that CADA would indeed require the company to “create and sell speech” in case the company creates and sells such speech to the public (which in practice can be seen as compelled speech). In justifying why the Free Speech Clause of the First Amendment does not exempt a business from CADA’s regulation Sotomayor refers to a principle confirmed in case FAIR: “a neutral regulation of conduct imposes an incidental burden on speech”. Here one could observe that the dissenting opinion simultaneously explains why CADA does not restrict free speech, yet ultimately acknowledges that it does, at times, limit free speech – and that this must simply be accepted.
In 303 Creative both the majority and dissenting opinions are of the view that the opposing side relies on cases that should be distinguished as inapplicable. Sotomayor convincingly explains why the decisions relied upon by the majority do not apply: in its reasoning the majority leans on Hurley and Dale, but those cases involved private, nonprofit expressive associations, where the burden on speech was direct. 303 Creative, by contrast, is a commercial, publicly accessible business, to which public accommodations laws have traditionally and constitutionally applied. Furthermore, she emphasizes the fundamental purpose of anti-discrimination legislation: “to ensure the full and equal enjoyment of places of public accommodation without unjust discrimination”. Justice Sotomayor reminds that discrimination has never been protected by the First Amendment before and in this case the reason to exclude arises under the Free Speech Clause. The decision inevitably prompts the question of whether free speech can now be invoked to justify discrimination against any protected group in public accommodations.
Team 303