Supreme Court Justice Neil Gorsuch shredded Justice Sonia Sotomayor’s dissent in the Court’s ruling to strike down a Colorado law that would have punished a Christian graphic designer who declined to design a website for a same-sex wedding that violated her religious beliefs.
In a 6-3 decision in the case of 303 Creative LLC v. Elenis, the high court cited the First Amendment in ruling that Lorie Smith could not be forced by state civil rights law to design websites that run counter to her sincerely-held religious beliefs. Justice Neil Gorsuch wrote for the majority, which included Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett, saying “no public accommodations law is immune from the demands of the Constitution.”
“It is difficult to read the dissent and conclude we are looking at the same case,” Gorsuch said. “Much of it focuses on the evolution of public accommodations laws, post, at 7–13, and the strides gay Americans have made towards securing equal justice under law, post, at 14–17. And, no doubt, there is much to applaud here. But none of this answers the question we face today: Can a State force someone who provides her own expressive services to abandon her conscience and speak its preferred message instead?”
“When the dissent finally gets around to that question—more than halfway into its opinion—it reimagines the facts of this case from top to bottom,” he said. “The dissent claims that Colorado wishes to regulate Ms. Smith’s ‘conduct,’ not her speech. Post, at 24–29. Forget Colorado’s stipulation that Ms. Smith’s activities are ‘expressive,’ App. to Pet. for Cert. 181a, and the Tenth Circuit’s conclusion that the State seeks to compel ‘pure speech,’ 6 F. 4th, at 1176. The dissent chides us for deciding a pre-enforcement challenge. Post, at 23. But it ignores the Tenth Circuit’s finding that Ms. Smith faces a credible threat of sanctions unless she conforms her views to the State’s. 6 F. 4th, at 1172–1175. The dissent suggests (over and over again) that any burden on speech here is ‘incidental.’ Post, at 24, 26–30, 32–33. All despite the Tenth Circuit’s finding that Colorado intends to force Ms. Smith to convey a message she does not believe with the ‘very purpose’ of ‘[e]liminating . . . ideas’ that differ from its own.”
Gorsuch continued:
Nor does the dissent’s reimagination end there. It claims that, “for the first time in its history,” the Court “grants a business open to the public” a “right to refuse to serve members of a protected class.” Post, at 1; see also id., at 26, n. 10, 35. Never mind that we do no such thing and Colorado itself has stipulated Ms. Smith will (as CADA requires) “work with all people regardless of . . . sexual orientation.” App. to Pet. for Cert. 184a. Never mind, too, that it is the dissent that would have this Court do something truly novel by allowing a government to coerce an individual to speak contrary to her beliefs on a significant issue of personal conviction, all in order to eliminate ideas that differ from its own.
There is still more. The dissent asserts that we “sweep under the rug petitioners’ challenge to CADA’s Communication Clause.” Post, at 26. This despite the fact the parties and the Tenth Circuit recognized that Ms. Smith’s Communication Clause challenge hinges on her Accommodation Clause challenge. (So much so that Colorado devoted less than two pages at the tail end of its brief to the Communication Clause and the Tenth Circuit afforded it just three paragraphs in its free-speech analysis. See Brief for Respondents 44–45; 6 F. 4th, at 1182–1183.) The dissent even suggests that our decision today is akin to endorsing a “separate but equal” regime that would allow law firms to refuse women admission into partnership, restaurants to deny service to Black Americans, or businesses seeking employees to post something like a “White Applicants Only” sign. Post, at 1, 16–21, 26, 28–29, 32, and n. 13, 37. Pure fiction all.
In some places, the dissent gets so turned around about the facts that it opens fire on its own position. For instance: While stressing that a Colorado company cannot refuse “the full and equal enjoyment of [its] services” based on a customer’s protected status, post, at 27, the dissent assures us that a company selling creative services “to the public” does have a right “to decide what messages to include or not to include,” post, at 28. But if that is true, what are we even debating?
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. Post, at 27–29, 31–32, 37. 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.” See supra, at 6, 9. Nothing the dissent says can alter this—nor can it displace the First Amendment protections that follow.
The dissent’s treatment of precedent parallels its handling of the facts. Take its remarkable suggestion that a government forcing an individual to create speech on weighty issues with which she disagrees—all, as the Tenth Circuit found, with the goal of “[e]liminating” views it does not share, 6 F. 4th, at 1178—only “incidental[ly]” burdens First Amendment liberties. Post, at 26–35. Far from embracing a notion like that, our cases have rejected it time after time—including in the context of public accommodations laws. See Parts II–IV, supra; FAIR, 547 U. S., at 61– 64 (no government may affect a “speaker’s own message” by “forc[ing]” her to “accommodate” views she does not hold); Hurley, 515 U. S., at 563, 566 (using a public accommodations law to compel parade organizers to include speech they did not believe was no mere “‘incidental’” infringement on First Amendment rights); Dale, 530 U. S., at 659 (employing a public accommodations law to require the Boy Scouts to alter their admissions policies had more than “an incidental effect on protected speech”).
Smith said she was willing to work with anyone regardless of their sexual orientation, but objected to being forced to build wedding websites for same-sex couples because same-sex marriage goes against her deeply held beliefs.
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“There are some messages I can’t create no matter who requests them,” Smith said in December.
Smith said she delayed expanding her business to start designing wedding websites because she was worried her beliefs would bump up against a Colorado public accommodations law. Colorado argued that Smith simply wanted to discriminate against same-sex couples and said the public accommodations law governs the conduct, not the speech of a person running a Colorado business.
Mairead Elordi contributed to this report.
