Today, Eugène and I filed a amicus brief before the Supreme Court in support of the petitioners 303 Creative LLC v. Elenis, arguing that wedding web designers cannot be required by a state’s public accommodations law to create web designs for same-sex couples. The Tenth Circuit erred in concluding otherwise, undermining a freedom essential to the LGBT rights movement itself.
Here is the summary of the argument:
This case is about protecting the constitutional right to free speech while allowing the government to generally provide equal access to commercial goods and services.
“Our society has recognized that homosexuals and same-sex couples cannot be treated as social pariahs or as inferior in dignity and worth,” this Court wrote in Masterpiece Cakeshop, Ltd. vs. Colorado CR Comm’n, 138 S.Ct. 1719, 1727 (2018), another case involving Colorado’s ongoing efforts to eliminate the discrimination it once fostered (see Romer v. Evans, 517 US 620 (1996) (invalidating state constitutional amendment denying civil rights protections to homosexuals)). “For this reason,” this Court continued, “the laws and the Constitution can, and in some cases must, protect them in the exercise of their civil rights. The exercise of their liberty on terms equal to those of other must be given great weight and respect by the courts.” Masterpiece pastry, 138 S.Ct. to 1727.
At the same time, First Amendment freedom not to speak must include freedom not to create speech and freedom to choose what speech to engage in or create based on religious, political, or sexual orientation content. of speech. . A freelance writer cannot be punished for refusing to write press releases for the Church of Scientology, even if he is willing to work for other religious groups. A musician cannot be punished for refusing to play at Republican-themed events, even if they will play at other political events, and even if the jurisdiction prohibits discrimination based on political affiliation in public places . See Eugene Volokh, Prohibition of political discrimination in places of public lodging and accommodation, 15 NYU JL & Freedom 490 (2021). Similarly, a wedding photographer or singer should not be punished for refusing to take photos celebrating a same-sex marriage, or for refusing to sing at such a wedding.
Indeed, this Court has generally recognized that the First Amendment protects the right of individuals to speak or refrain from speaking, even when the government invokes a compelling interest in prohibiting discrimination. In Hurley v. Boston Irish-American gay, lesbian and bisexual group515 US 557 (1995), for example, this Court held that a state public housing law could not constitutionally require the organizers of a St. Patrick’s Day parade to let a gay, lesbian and Irish bisexual parading behind a banner simply proclaiming their presence.
Of course, the First Amendment protects refusals to speak, but does not extend to refusals to do things that are not a form of speech. Limousine drivers, hoteliers and caterers should not be entitled to exempt themselves from the anti-discrimination law in their professional activities under the freedom of expression clause, because in these cases the law does not not compel to speak or create expression protected by the First Amendment. Likewise, although the First Amendment protects refusals to participate as a co-creator in another’s speech – say, as an actor, musical accompanist, or singer – again, the limousine driver, hotelier or the caterer would not be considered a co-creator. of the discourse involved in marriage. This Court rejected “the view that a seemingly unlimited variety of conduct can be termed ‘speech’ whenever the person engaging in the conduct intends to express an idea in that way”. United States vs. O’Brien, 391 U.S. 367, 376 (1968). There must also be limits set on the variety of conduct compulsions that qualify as “speech compulsions,” and on the degree and quality of involvement that qualify as forced “participation” in a ceremony.
Fortunately, the present case does not call on this Court to define such limits precisely, since there is no serious question that this is a forced speech. The Tenth Circuit has acknowledged that Smith’s “creation of wedding websites” — through his sole proprietorship, 303 Creative — “is pure talk.” Animals. 20a. He specifically acknowledged that the accommodation clause of the Colorado Anti-Discrimination Act (“CADA”) “requires [Smith] to create speech “performing marriages that her conscience tells her she cannot perform and understood that such compulsion “necessarily functions as a content-based restriction”. Pet. 22a-23a. The lower court held even recognized that Smith is willing to work with, and design websites for LGBT clients in almost any other circumstance. Animal 6a.
Yet the Tenth Circuit did not follow this Court’s example of protecting speech in Hurley and other decisions. Animals. 19a–34a. If Smith sells graphic designs celebrating the marriages of certain couples, according to the Tenth Circuit, Colorado may require that she create and sell similar graphic designs celebrating the marriages of all couples. Animals. 27a–28a. Essentially, even if comparable web design services are widely available, the lower court held that the harm of being denied access to one person’s creative designs is enough to allow the government to compel that person to speak in a way that violates his conscience. See pet. 26a–32a. This can’t be right.
Because it is easy to appreciate how this case involves rights of expression – as even the Tenth Circuit did – it presents this Court with an excellent opportunity to affirm the fundamental position of Hurley, Wooley v. Maynard430 US 705 (1977), and Miami Herald ad. Co. c. Tornillo, 418 U.S. 241 (1974): First Amendment protections for “individual freedom of thought” mean that the government cannot require people to create and spread speech with which they disagree and cannot force them to change their message because they have decided to speak. Wooley, 430 US to 714.
In Masterpiece pastry, this Court expressly recognized “the authority of a state and its governmental entities to protect the rights and dignity of homosexual persons who are or wish to be married but who are discriminated against when seeking goods or services “. 138 S.Ct. at 1723. This case allows this Court to add that, despite their importance, state laws prohibiting discrimination in these public places are subject to First Amendment limits on governmental power. And it gives this Court the opportunity to reject the corrosive version of the strict scrutiny applied by the Tenth Circuit, which defers to the state’s choice of means in all cases involving personalized expressive products on the market. commercial
And we offer this concluding thought:
The First Amendment has historically protected the rights of Americans to organize politically and to champion unpopular causes. This protection has been particularly critical for the LGBT rights movement. See Dale Charpentier, Born into Dissent: Free Speech and Gay Rights, 72 SMU L. Rev. 375 (2019); Carpenter, Expressive association, 85 Min. L.Rev. at 1525-33. With such secure freedom of expression, “[m]Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have shown extraordinary vision, tenacity and courage, often battling considerable odds in the legislative and judicial arenas, not to mention their daily lives.” Bostock vs. Clayton Cty., 140 S.Ct. 1731, 1837 (2020) (Kavanaugh, J., dissenting).
Ilya Shapiro (formerly of the Cato Institute), the American Unity Fund (AUF), and the Hamilton Lincoln Law Institute (HLLI) have joined us as amicus. Devan Patel of the AUF and Theodore Frank, Anna St. John and Adam Schulman of HLLI contributed as counsel. I would like to thank my research assistant Joshua Diaz (SMU Law ’23) for his invaluable help on the dissertation.