One of the headliners of last year’s Supreme Court term was 303 Creative LLC v. Elenis. The case involved the application of a Colorado antidiscrimination law to a graphic design business owned and operated by Lorie Smith. Ms. Smith had decided to expand her portfolio of services to include “customized,” “tailored,” “original,” and “expressive” websites for couples planning weddings. However, because she believes that “marriage should be reserved to unions between one man and one woman,” and because she was concerned that Colorado’s law—which prohibits “public accommodations” from discriminating on various grounds—would be used to “force her to convey messages inconsistent with [that] belief,” Ms. Smith filed a federal lawsuit to “clarify her rights.” Her case and the publicity it received present an opportunity to think more carefully about such public-accommodations laws and their scope, purpose, and limits.

303 Creative

That 303 Creative was so closely watched and widely remarked on has as much to do with contemporary Court watchers’ “culture war” narratives, scripts, and obsessions as with the novelty, difficulty, or importance of the precise legal question that was asked and answered. A six-justice majority ruled, in an opinion authored by Justice Neil Gorsuch, that it would violate the First Amendment for Colorado to “compel speech Ms. Smith does not wish to provide” or to “create speech she does not believe.” Recognizing—indeed, emphasizing—that “law[s] forbidding businesses from engaging in discrimination when they sell goods and services to the public . . . have done much to secure the civil rights of all Americans” and also that American governments have a “compelling interest” in “eliminating discrimination in places of public accommodation,” the majority reaffirmed that “public accommodations statutes can sweep too broadly when deployed to compel speech” and insisted that “when a state public accommodations law and the Constitution collide, there can be no question which must prevail.”

This was the generally expected result. Contrary to the overheated and extravagant rhetoric in Justice Sonia Sotomayor’s dissent and in much of the press coverage, 303 Creative broke no new ground and coheres comfortably with relevant precedents and noncontroversial judicial doctrines. It is not a case about marriage or about sexual-orientation discrimination; it is a case about compelled speech, that is, about the government telling a person what she must say (if she wants to be permitted to operate a business).

It is well established, for starters, that the freedom of speech guarded by the First Amendment includes the right not to speak. Eighty years ago, in West Virginia Board of Education v. Barnette, while the Second World War was raging, the Court rejected a state’s requirement that schoolchildren salute and pledge allegiance to the national flag. Also, although there are longstanding disputes about the precise First Amendment status of commercial advertising, no one denies that commercial businesses’ expression enjoys at least some constitutional protection and speech does not lose constitutional protection just because it is sold for profit. After all, among the most important and influential free-speech cases in American history is New York Times v. Sullivan.

Moreover, courts have often held that valid and valuable nondiscrimination laws’ applications are constrained by the Constitution. For example, in Hurley v. G.L.I.B., a unanimous Supreme Court determined that Massachusetts’s public-accommodations law—an antidiscrimination rule like the Colorado law involved in 303 Creative—could not be used to force the organizers of a Boston parade to include an LGBT group the organizers wanted to exclude, because compelled inclusion would “alter the expressive content of their parade.” “All speech,” Justice David Souter emphasized, “inherently involves choices of what to say and what to leave unsaid” and an “important manifestation of the principle of free speech is that one who chooses to speak may also decide ‘what not to say.’”

It is true, of course, that not all conduct is protected speech—burning a flag is one thing, burning your neighbor’s house is another—and, so, it is true that not all conduct regulations implicate the First Amendment. But, in this case, both the state of Colorado and the lower courts agreed that Smith’s decision was expressive. Nothing in the Court’s ruling or Justice Gorsuch’s opinion authorizes discriminatory denials of service not involving compelled speech. Contrary to the dissenters’ charge, the narrow and focused decision does not “grant a business open to the public a constitutional right to refuse to serve members of a protected class.” Both the dissent and much of the critical commentary ignored the parties’ stipulated facts concerning this matter. The 303 Creative ruling does not, of course, answer all imaginable tricky questions about the lines between discriminatory conduct and protected expression or between “selling things” and “saying things.” But it did not need to.

Going forward, new disputes will probably require courts to decide whether, say, customized floral arrangements or bespoke cakes for weddings “count” as protected speech. Five years ago, Masterpiece Cakeshop presented the latter question, but the Court was able to resolve the case on the discrete ground that regulators had violated the Free Exercise Clause rights of a baker, Jack Phillips, by failing to consider his religious objections in a “neutral” matter. As it happens, just a few days ago, the state of Colorado’s Supreme Court announced it would hear yet another case involving a complaint—this time for refusing to create a cake celebrating a gender transition—against Phillips.

It also remains to be seen under what circumstances, if any, a government’s interests in “eliminating discrimination in places of public accommodation” and “vindicate[ing] the deprivation of personal dignity that … accompanies denials of equal access” might justify burdening First Amendment rights. In 2021, in Fulton v. City of Philadelphia, the entire Court agreed—although for differing reasons—that the city’s interests in enforcing its antidiscrimination laws did not justify requiring Catholic Social Services to certify, contrary to its religious commitments, same-sex couples as foster parents.

These are interesting questions, to be sure. Still, it should be emphasized, again, that controversies involving weddings and First Amendment rights appear far more frequently in partisan commentary and fundraising emails than they do in real-world courts. But even if its concrete impact on marriages and markets is minimal, 303 Creative is an occasion to think about the history, purposes, justifications, and reach of antidiscrimination laws in general and public-accommodations rules in particular.

Equality, Liberty, and Antidiscrimination Law

Antidiscrimination rules are, of course, pervasive in American law. Our national Constitution, for example, does not permit one state to discriminate against out-of-state commerce, as we were reminded last year in a Supreme Court case about California’s ban on in-state sales of pork raised in inhumane ways. While there are raging arguments about the meaning of the First Amendment’s Free Exercise Clause, most agree that it does not permit actual discrimination against religion-as-such. The Fourteenth Amendment prohibits states from denying “equal protection of the laws,” a prohibition that gives—as Chief Justice John Roberts observed recently, in his Students for Fair Admissions opinion—“to the humblest, the poorest, the most despised of the race the same rights and the same protection before the law as it gives to the most powerful, the most wealthy, or the most haughty.” Other constitutional amendments disallow limiting adults’ right to vote on the basis of race, sex, or age. Landmark federal statutes such as the Civil Rights Act, the Voting Rights Act, the Fair Housing Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act include antidiscrimination provisions and requirements, as do their counterparts and analogs in states, counties, and cities.

That these and many, many similar and consonant laws, rules, and conditions exist in the United States is not surprising. After all, our foundational commitment to “equal justice under law” is recorded in the stones of the Supreme Court itself. As the late Kenneth Karst once wrote, a “society devoted to the idea of equal citizenship will repudiate those inequalities that . . . ‘belie the principle that people are of equal ultimate worth.’” The United States is such a society and, so, aspires to act accordingly.

At the same time, it is (no pun intended) equally unsurprising that nontrivial disagreements persist, among people of good will, about the meaning and implications of “the idea of equal citizenship” and the authority of governments to pursue, promote, and enforce it. The Declaration of Independence confidently proclaims to be “self-evident” both that all human persons are “created equal” and that we are “endowed by [our] Creator” with “unalienable rights,” including “Liberty.” Abraham Lincoln recalled at Gettysburg that the United States was both “conceived in Liberty” and “dedicated to the proposition that all men are created equal.” That our policy disagreements and legal controversies will sometimes reveal tension, even conflict, between antidiscrimination laws’ egalitarian aims, on the one hand, and government-restraining rights and liberties, on the other, is as certain as it is unavoidable.

The expansion and enforcement of public-accommodations laws, in particular, is a context for such conflict, in part because these laws do more than regulate the activities and decisions of governments and public officials. They also, very much by design, reach into spheres of life that can reasonably be regarded as social, commercial, personal, or even private. It is one thing to say that we should not permit our governments—after all, they are our governments—to discriminate, along invidious or irrelevant lines, when operating elections, staffing juries, filling jobs, dispersing benefits, and rewarding contracts. It might be another thing, though, to say that governments should supervise decisions about club membership, personal services, property access, and intimate friendships.

Still, public-accommodations laws have deep roots—as Justice David Souter put it, in Hurley, a “deep history”—in our legal practices and traditions. Even if their requirements and reach have expanded, it would be a mistake to regard them simply as innovations in the service of contemporary identity politics or progressive regulatory aims. “At common law,” Justice Souter reported, “innkeepers, smiths, and others who ‘made profession of a public employment,’ were prohibited from refusing, without good reason, to serve a customer.” A public-accommodations provision was a key feature of the Civil Rights Act of 1875, although that provision was invalidated, as beyond the power of Congress to enact, in the 1883 Civil Rights Cases. Nearly eight decades later, a similar guarantee contained in the 1964 Civil Rights Act was upheld, on a different theory, in the Heart of Atlanta Motel case.

Today, rules prohibiting discrimination in places of public accommodation are ubiquitous, across the country and at every level of government. It is safe to say, though, that their reach and coverage have expanded: The forbidden bases for discrimination have multiplied far beyond race and ethnicity and the category of “public accommodations” has grown to include far more than inns and restaurants and to now cover, as Justice Gorsuch observed in his 303 Creative opinion, “virtually every place of business engaged in any sales to the public.” In many jurisdictions, these laws cover a lot more than businesses that sell things; they apply to benevolent associations’ membership, church-hall rentals, and parades’ float-rosters. In addition, the litany of prohibited decision-making criteria has lengthened.

This is not the place for a detailed history of public-accommodations laws (a task which has been ably undertaken by Law & Liberty contributor, Prof. Adam MacLeod). It is worth emphasizing, though, that, over time, the aims and justifications of these rules have also evolved and expanded. At first, these laws’ focus and concern seemed to have been monopoly power, or the obligations that were thought to accompany a publicly conferred license, or business operations that occupied a kind of choke-point in the marketplace. When the availability of a room at the inn could make the difference between life and death, or cold and warmth, the right of the innkeeper to arbitrarily choose his clientele was expected, reasonably, to give way. Later, the Heart of Atlanta Court built on, and above, these earlier foundations, and emphasized that these laws, in addition to ensuring Black citizens’ access to interstate commerce and ability to travel freely throughout the country, “vindicate the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.”

Given the pervasive, persistent, and systemic nature of racial prejudice and discrimination, and the demeaning, insistent efforts of so many to resist the equality guarantees of the Civil War amendments, the Heart of Atlanta justices’ invocation of “personal dignity,” as well as market access, was welcome and warranted. In cases like Masterpiece Cakeshop and 303 Creative, though, the public-accommodations-enforcement project seems less about combatting monopoly, ensuring meaningful access to the commercial sphere, or vindicating equal-citizenship rights than about marginalizing, punishing, and re-educating those with at-present disfavored views on a few currently controversial questions.

Justice John Paul Stevens, dissenting in Boy Scouts v. Dale, a case where the Court concluded that it would violate the First Amendment to use a public-accommodations law to require the Scouts to take on a “gay rights activist” as a scoutmaster, did not focus on Mr. Dale’s ability to access volunteer opportunities. Instead, he warned of the “atavistic opinions,” “nourished by sectarian doctrine,” that the Scouts’ policy was thought to reflect. He was confident that such opinions, which cause “serious and tangible harm,” could and should be changed through assiduous application of the state’s public-accommodation regulation. The assertedly reformative, rehabilitative effects of vigorous enforcement have also been invoked by Jack Phillips’s current opponents, who have as a stated aim “correct[ing] the errors of his thinking.”

This way of thinking about the ends of and warrant for public-accommodations laws is both deformed and dangerous. It is a dramatic overreach, and an unwelcome departure, for these laws to be used not to facilitate equal access to commerce and civil society but to punitively re-educate those with traditional, or now-disfavored, views about controversial questions.

Part of the explanation for this misguided shift in justification is confusion about “discrimination.” Put aside, for now, the fact that, in these recent cases, the businesses in question insisted that they do not, in fact, “discriminate” against persons on prohibited grounds, including sexual orientation; instead, both the baker in Masterpiece and the graphic designer in 303 Creative objected not to serving people, but to coerced expression. More generally, the confusion results from the assumptions that all “discrimination” is wrong and that all wrongs, as such, are within the power of our governments to prohibit.

The word “discrimination” is rhetorically powerful; we hear it, automatically, as identifying wrongful conduct. Today, often, to identify a decision as “discrimination” is to condemn it, as such, as wrong and to mark it as prohibitable. Except, it is not true that “discrimination” is always or necessarily wrong. “Discrimination,” after all, is just another word for decision-making, for choosing and acting in accordance with or with reference to particular criteria. We “discriminate”—that is, we draw lines, identify limits, and make judgments—all the time. We “discriminate” when we decide what we will, and will not, affirm. Whatever the merits of the underlying arguments, it is not wrong for the Democratic Socialists of America to “discriminate” against members of the Libertarian Party, or for a Methodist Women’s Auxiliary to “discriminate” against Baptists or, for that matter, against men.

Nor is it the case that governments always or necessarily should or may regulate or discourage it even when it is. In our legal order, it is not the case that governments may or should prevent, correct, or even discourage every instance of wrongful discrimination. Some wrongs and bad conduct are beyond the authorized reach of government policy; some are too difficult or costly to identify, let alone regulate; others are, put simply, none of the government’s business. Overenthusiastic or insufficiently deliberate campaigns against “discrimination,” in the name of “equality,” can conflict with or even undermine the commitment of constitutional, limited governments to the freedoms of the private and civil-society spheres.

The appropriate crafting and enforcement of public-accommodations laws requires careful attention to a variety of factors and variables: Who is the decision maker? Who are the affected parties? What is the criterion for decision? How will the decision and others like it affect our ability to respect and vindicate other goods? How costly would it be to regulate or try to prohibit such decisions? Does the decision in question “belie the principle that people are of equal ultimate worth”? And, is the decision one that a limited state in a free society has the authority to supervise?

Correcting the Errors of Our Thinking

Justice Sotomayor asserted in her 303 Creative dissent that, because the “public market” is “established and maintained by the state,” the state is therefore entitled to enforce, as a term of the “social contract,” a “legal norm of nondiscrimination” on “any business that holds itself out as ready to serve the public.” This is, to put it mildly, a striking understanding of the origins of markets, the presumptive liberty to engage in trade, and the leverage that governments may exercise through what seems like a “social contract” of adhesion. As Prof. Philip Hamburger might put it, on this view, “submission” to the increasingly exacting demands of public-accommodations regulations is “purchased” simply by the public maintenance of a contract-enforcement and property-rights regime. Given our First Amendment, as Justice Gorsuch explained, it is not permissible to condition access to the laws’ protections on a waiver of freedom of speech or on the compelled recitation of a state-mandated proposition.

The implications of Justice Sotomayor’s position are sweeping: After all, we all enjoy the benefits of paved (if often pot-holed) roads, clean air, and the United States Navy; it should not follow that, by accepting, as citizens, these benefits we are therefore obligated to accept, in social, private, and other non-state spheres of life, regulations aimed at “correcting the errors of our thinking.”

Justice Sotomayor closed her dissent with the (unfounded) charge that the “unattractive lesson” of the majority’s enforcement of the First Amendment is “what’s mine is mine, and what’s yours is yours.” The unsettling premise of her position, though, is that “it’s all the state’s.” She insisted, quite rightly, that an aim of public-accommodations laws is to ensure that there are no “social castes” in the “public market,” but she wrongly believes that aim authorizes the setting of ideological conformity as the price of admission to public life.