Restrictions May Apply: A Q&A with Kenji Yoshino on how the Supreme Court has limited antidiscrimination law

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On June 30, in 303 Creative v. Elenis, the US Supreme Court ruled that the First Amendment allows the owner of a Colorado design firm to refuse to create wedding websites for same-sex couples. Colorado’s public accommodations law prohibits businesses from denying goods and services to customers based on their race, creed, disability, or sexual orientation, but the design firm’s owner, Lorie Smith, had filed suit to challenge its application to her business.

Kenji Yoshino
Kenji Yoshino

Compliance with the public accommodations law, Smith claimed, would violate her rights under the First Amendment’s Free Exercise Clause, which protects religious freedom, since it was her religious belief that marriage can only be between a man and a woman. Smith also alleged a violation of the First Amendment’s Free Speech Clause, since designing custom websites is “expressive in nature” and the Colorado law would require her to express a message—celebrating same-sex marriage—with which she didn’t agree.

Five years earlier, in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Court ruled on free-exercise grounds in favor of a baker who refused to create a wedding cake for a same-sex couple based on his religious beliefs. The baker had also raised a free-speech objection, but the majority declined to address it. Conversely, when it added 303 Creative to its docket, the Court said it would review only Smith’s free-speech claim. In its 6-3 decision, authored by Justice Neil Gorsuch, the Court upheld that claim. 

In an article commissioned by the Harvard Law Review, Kenji Yoshino, Chief Justice Earl Warren Professor of Constitutional Law, outlines why he thinks the decision “makes civil rights laws vulnerable in new, distinctive, and alarming ways.” Titled “Rights of First Refusal,” the article was published on November 13. We reached out to Yoshino—who is faculty director of the Law School’s Meltzer Center for Diversity, Inclusion, and Belonging—to discuss the case.

The vast majority of states have public accommodations statutes. Explain why you think courts should generally uphold these laws even when faced with a claim that they violate a constitutional right. 

I would rely on Justice Sotomayor’s dissent, which clearly articulated why public accommodations laws are so important. She pointed out that public accommodations laws are an implicit contract between a business and the public. The state helps the business access a public market. In return, the business has to be open to all comers and can’t pick and choose customers. 

Justice Sotomayor noted, in particular, that two interests were secured by public accommodations laws. One was the interest in access to the good, and the other was “equal dignity in the common market.” The first interest can be satisfied by having another store down the street that will serve you. The second interest, however, can’t be satisfied by the availability of another vendor because the dignitary harm occurs at the moment that service is refused. For that reason, there isn’t a less restrictive alternative to requiring businesses to serve all comers if they hold themselves open to the public.

Why do you think the Court declined to even consider the free-exercise claim in this case and went down the free-speech path instead? 

This is a good question, because we can’t understand what happened in 303 Creative without understanding the backdrop of the free-exercise jurisprudence against which it was litigated. 

In 1990, SCOTUS decided a landmark case called Employment Division v. Smith, which held that a generally applicable law that was enacted without discriminatory intent could in most cases not be successfully challenged on free-exercise grounds, because otherwise everyone would become a law unto themselves. 

Since then, conservative advocates and some justices on the Supreme Court have sought to overturn Smith. The Court has considered two cases in the last five years that explicitly asked them to overrule Smith: Masterpiece Cakeshop and Fulton v. City of Philadelphia. In both cases, the Court ruled in favor of the religious objectors, but stopped short of jettisoning Smith. It decided those cases on narrow grounds, slotting them into exceptions that existed even in Smith. 

By the time Fulton was decided, some conservative justices expressed significant frustration about the logjam they encountered in Masterpiece and Fulton. I regard the shift away from free exercise to free speech as an attempt to secure similar exemptions for people of faith, but this time bypassing the Smith debate.

As I’ve said elsewhere in my writing, constitutional litigation is like squeezing a balloon: when the Court squeezes off one part of doctrine, the contents are not squeezed out but rather over to a collateral area of doctrine. This is exactly what we’re seeing here, where the Court reacted to the limitation on free-exercise exemptions by opening up a new avenue of free-speech exemptions.

How would you summarize your concerns about why the ruling makes civil rights laws “vulnerable”?

I have two major concerns. 

First, there is no firewall that protects racial minorities—or any group. In the free-exercise context, we have well-established precedents that state that there is no religious right to discriminate against racial minorities. The free-speech context contains no such limitation. To the contrary, the Court has repeatedly told us that the great boast of our First Amendment jurisprudence is that it protects the freedom to express even “the thought that we hate.” This commitment means that exemptions cannot be limited to any civil-rights category but would apply across the board.

Second, the free-speech right can be asserted by anybody. A garden-variety bigot can assert such an exemption even without any religious basis for the viewpoint. Under this logic, if a web designer did not want to create websites for interracial couples because they objected to interracial marriage on secular grounds, they would be able to flout civil rights laws to do so. 

The decision hinges on a determination that the activity at issue in the case—website design—was “expressive.” Why won’t this limit the reach of the ruling?

The requirement of expression could potentially form a constraint, but we don’t know that it will. The Court gave us no guidance on this point in 303 Creative, because it relied on stipulated facts in the case that said that the conduct was expressive. For that reason, the Court didn’t need to say anything about what its standards for expression would be in future cases. 

Some thoughtful commentators have tried to fill the gap by arguing for a potential limiting principle. Professor Dale Carpenter of SMU Dedman School of Law, for instance, has argued that the activity would need to be both customized and expressive. This would mean that activity that was customized but not expressive—like the Whopper at Burger King—would not be protected. It would also mean that goods that were expressive but not customized—like mass produced T-shirts with slogans—would not be protected. 

However, even if the Court takes Carpenter’s approach, that still leaves an enormous number goods that could be touched by the decision. As Justice Sotomayor pointed out in her dissent, it could mean that the stationer, the writer of epitaphs, and the family photographer will all come before the Court to determine whether their activity is sufficiently expressive, and the Court will be in the unenviable position of wading into a semiotic quagmire.

The majority opinion expressly cites the value of public accommodations statutes, suggesting that this ruling is carving out a limited exception to such laws. Do you think they didn’t sufficiently consider the potential for it to apply more widely?

All I would say is that the Court did have an occasion to think about the slippery-slope concerns in the Masterpiece Cakeshop case. While that case was decided on free-exercise grounds, Justice Thomas wrote a concurrence saying that the baker in that case should also have prevailed on free-speech grounds. In determining that baking a wedding case was expressive, Justice Thomas, joined by Justice Gorsuch, adduced evidence that the baker considered himself to be an artist and that the logo for his bakery was a paint palate with a paintbrush and baker’s whisk. So, at a minimum, the Court seemed to be aware of the cultural analysis it would have to conduct to define the boundaries of the free-speech exemption. Those two Justices, at least, seemed perfectly happy to engage in that enterprise.

In another landmark decision in July, the Supreme Court held that race-based affirmative action programs used in college admissions were unconstitutional. Almost immediately, efforts began—through media advocacy and litigation—to extend the ruling to diversity initiatives by businesses and law firms. Have there been similar efforts to broaden the reach of 303 Creative

Yes. We have already seen a Texas judge cite the 303 Creative decision to argue that she should be allowed to refuse to officiate same-sex weddings, as well as a Michigan hair stylist who used a free-speech justification to refuse service to anyone who “identifies as anything other than a man/woman.”

Indeed, the affirmative action decision and 303 Creative decision aren’t just operating in parallel, but are also intersecting with each other. One lawsuit seeks to extend the affirmative action decision into the realm of contracting, arguing that a fund that provides grants to Black women entrepreneurs is discriminating on the basis of race in violation of a federal law known as section 1981. The defendants in that case, Fearless Fund, are using 303 Creative to argue that the grant program is expressive conduct protected by the First Amendment.

Posted November 13, 2023