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The Supreme Court Is About to Ask the Wrong Question About the First Amendment

cigaretteman

HR King
May 29, 2001
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By David Cole
Mr. Cole is the national legal director of the A.C.L.U.
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Can an artist be compelled to create a website for an event she does not condone? That’s the question the Supreme Court has said it will take up on Monday, when it hears oral arguments in 303 Creative v. Elenis. The answer would seem to be obviously “no.”
But that’s the wrong question. The right question is whether someone who chooses to open a business to the public should have the right to turn away gay customers simply because the service she would provide them is “expressive” or “artistic.” Should an architecture firm that believes Black families don’t deserve fancy homes be permitted to turn away Black clients because its work is “expressive”? Can a florist shop whose owner objects to Christianity refuse to serve Christians? The answer to these questions would seem to be, just as obviously, “no.”
So why is the first question the wrong one in this dispute? The case before the court was brought by 303 Creative, a business that says it wants to offer wedding website design services to the public but doesn’t want to serve gay couples. Under Colorado’s public accommodations law, businesses that choose to serve the public at large cannot turn people away because of their race, sex, religion, sexual orientation or other protected characteristics. 303 Creative claims that because its service is expressive and its owner objects to same-sex marriage, it can’t be required to obey Colorado’s law. Not to afford it an exemption, the company argues, compels it to speak against its will and violates its free speech rights.
If this sounds familiar, that’s because five years ago the Supreme Court considered a similar case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which a bakery asserted a free-expression right to turn away a gay couple that asked it to make a cake to celebrate their wedding. The court resolved that dispute on other grounds, so it did not answer the question. Masterpiece Cakeshop’s lawyers are back before the court, making the same argument with a new client. (303 Creative has actually never made a wedding website for anyone, but it claims that it can’t even get started without a legal ruling that it can turn away gay couples.)
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The A.C.L.U. has been this nation’s leading defender of free speech for more than a century. We firmly believe that states cannot compel artists or anyone else to express messages with which they disagree.
But we filed an amicus brief supporting Colorado in 303 Creative, and we defended the same law five years ago on behalf of the gay couple denied service by Masterpiece Cakeshop. We did so because Colorado’s law does not do what 303 Creative claims it does. Public accommodations laws, which have been on the books since the 19th century, ensure that everyone has equal access to the public marketplace without regard to attributes historically marking them for second-class status. Those laws don’t trigger serious First Amendment concerns because they treat all businesses equally, whether they take corporate headshots or serve burgers and fries. The purpose of these laws is not to dictate the content of anyone’s speech, but to make sure that nobody is denied goods or services in commercial markets for discriminatory reasons.
Two features of the law make clear that Colorado’s law does not coerce artists to express a message with which they disagree.
First, no artist has to open a business to the public in the first place. Most writers, painters and other artists never do; they pick their subjects and leave it at that. The photographer Annie Leibovitz, for example, does not offer to take photographs of anyone who offers to pay her fee but chooses her subjects. She is perfectly free to photograph only white people or only Buddhists.
But if Ms. Leibovitz were to open a portrait photography business that offered to take portraits on a first-come, first-served basis to the public at large, as many corporate photography studios do, she could not turn away subjects just because they were Black or Christian. Her photographic work would be just as expressive. But the choice to benefit from the public marketplace comes with the legal obligation to equally serve members of the public. And requiring businesses that offer expressive services in the public marketplace to follow the same rules as all other businesses does not violate the First Amendment.

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Second, even businesses open to the public are free to define the content of what they sell. A Christmas store can sell only Christmas items without running afoul of public accommodations laws. It need not stock Hanukkah candles or Kwanzaa cards. But it cannot put a sign on its doors saying, “We don’t serve Jews” or “No Blacks allowed.”
303 Creative argues that it is not turning away same-sex couples because they are gay, but because it objects to the message that making a wedding website for them would convey. The company has, however, asked the court to declare its right to refuse to make any website for a same-sex couple’s wedding, even if its content is identical to one it would design for a straight couple. According to this line of argument, the company could refuse a gay couple even a site that merely announced the time and location of the wedding and recommended places to stay.
Colorado’s law doesn’t dictate the content of what a business sells. 303 Creative is free to post on all the websites it designs, “The Bible condemns gay marriage.” And by the same token, it could refuse to design a site that says, “The Bible blesses gay marriage,” if it would not design that website for anyone. In that case, the decision would not be discrimination based on the customer’s identity, but a permissible decision to define the product it sells.
303 Creative has plenty of freedom to speak or not speak as it wishes. It need not serve the public and it need not design wedding websites featuring content it would not sell to anyone. But the First Amendment does not give it an exemption from laws requiring equal treatment of customers simply because its service is “expressive.”
Otherwise, interior decorators, landscape architects, tattoo parlors, sign painters and beauty salons, among countless other businesses whose services contain some expressive element, would all be free to hang out signs refusing to serve Muslims, women, the disabled, African Americans or any other group. The First Amendment protects the right to have and express bigoted views, but it doesn’t give businesses a license to discriminate.

 
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1. This is an excellent example of how far the ACLU has come (or, perhaps "gone" is the better verb) relative to its original core mission.
2. To be clear, I don't think the Court should have taken this case to begin with. From my perspective, the only thing "Creative" about 303 Creative is that it's a created-for-litigation plaintiff, and the fact that the case has proceeded based on a stipulation rather than a case involving an actual advertisement or an actual enforcement action underscores that this is a case that is essentially seeking an advisory opinion. While I am much more inclined to view the justices on both sides as deciding the merits of cases in good faith based on their adoption of two competing and valid legal/interpretive traditions rather than simply "politics", the case is an excellent example of what I think is a fair criticism of the current court -- its much more aggressive selection of cases for review based on issues of interest to the justices.
3. But now that we're here, the accommodations law is what it is, and it's generally a valid exercise of government power. But -- as all of the lawyers at oral argument have recognized today -- there really isn't a lot of case law or history about how such laws fare when they come up against another federal constitutional right such as free speech or free exercise. So, I disagree completely with the author's premise that somehow the question shouldn't be addressed because of the tautology that public accommodations laws are generally legitimate exercises of government power.
4. As to the merits, if you recognize that there is speech or religious exercise going here (and I'm personally a little skeptical that there really is, particularly in the context of this created-for-litigation plaintiff), it becomes a lot harder IMO to somehow say that the "right" (whether free speech or free exercise) is somehow subject to the power. Almost always - at least in the absence of a compelling interest - it works the other way, and rights trump powers.
 
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4. As to the merits, if you recognize that there is speech or religious exercise going here (and I'm personally a little skeptical that there really is, particularly in the context of this created-for-litigation plaintiff), it becomes a lot harder IMO to somehow say that the "right" (whether free speech or free exercise) is somehow subject to the power. Almost always - at least in the absence of a compelling interest - it works the other way, and rights trump powers.
Why? As long as it’s a neutral law of general applicability, why does it matter?

No one is targeting speech or religious exercise.
 
Why? As long as it’s a neutral law of general applicability, why does it matter?

No one is targeting speech or religious exercise.
Neutral laws of general applicability can infringe upon constitutional rights. You don't need to "target" anything - constitutional enforcement, rightly, is not subject to enforcement only in cases of specific intent. (Note, the same can be said of prohibitions on discriminatory practices, and rightfully so, just as putatively "neutral" laws regulating medical facilities can be and have been challenged for their effect on abortion access). Again, as a general principle, rights always trump powers, and that is a good thing for all of us.
 
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Neutral laws of general applicability can infringe upon constitutional rights. You don't need to "target" anything - constitutional enforcement, rightly, is not subject to enforcement only in cases of specific intent. (Note, the same can be said of prohibitions on discriminatory practices). Again, as a general principle, rights always trump powers, and that is a good thing for all of us.
The Free Exercise Clause requires such targeting to trigger strict scrutiny. Religious exercise can literally be anything.
 
The Free Exercise Clause requires such targeting to trigger strict scrutiny. Religious exercise can literally be anything.
I'm not so sure about that in the context of a case basically seeking a DJ that the application of the law to this business would regulate speech, and thus, I think what you're really arguing is that it's not speech, which I think is a perfectly valid, and perhaps persuasive in this case, argument.
 
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