Introduction

Over the past decade, conservative Supreme Court justices have repeatedly held that those who oppose marriage rights for same-sex couples are decent, fair-minded people who are not prejudiced against lesbians, gay men, and bisexuals.1 According to these justices, the sincere and reasonable beliefs of those who oppose marriage equality can be distinguished, in constitutionally relevant ways, from the views of bigots who oppose integration and racial equality.2

The distinctions that conservative justices have made between the views of those who oppose marriage equality and those who oppose racial equality are crucial to understanding the meaning, scope, and impact of the Court’s decision in 303 Creative LLC v. Elenis.3 Professor Kenji Yoshino, in his incisive and thoughtful commentary, understandably worries that 303 Creative makes it possible for any defendant in any anti-discrimination case involving the sale of a good or service with sufficient expressive content to claim a free speech exemption “against any person on the basis of any classification, including race.”4 He adds that “[t]his…makes the free speech exemption [granted in 303 Creative] potentially far more damaging to civil rights” than an exemption granted under the Free Exercise Clause.5 Professor Yoshino explains that because “free speech exemptions cannot be limited to any particular civil rights context, web designers would also be protected if they refused to create websites for interracial couples.”6

Professor Yoshino sensibly sounds the alarm about how 303 Creative “corrodes the promise of civil rights laws in potentially dramatic and devastating ways.”7 However, in this Response I argue that there is reasons to believe that the Court’s conservative justices will find ways to distinguish exemptions sought by business owners based on views that the justices understand to be sincere and reasonable (such as those of owners who refuse to provide wedding-related goods and services to same-sex couples) from exemptions sought by business owners based on bigoted and prejudiced views (such as those of owners who refuse to provide goods and services to black customers or interracial couples).

I offer three sources of support for this claim. The first, discussed in Part I, is the ways in which conservative justices have, over the past decade, repeatedly emphasized the constitutional relevance of the differences between the views of opponents of equal marriage rights for LGBTQ people and the views of racial bigots. The second, discussed in Part II, are the ways in which the 303 Creative Court understood that the particular ideological views of the business owner who challenged the Colorado anti-discrimination law at issue in the case were sincere and unbiased. This understanding was crucial to its conclusion that by refusing to provide wedding-related web design services to same-sex couples, the business owner did not engage in status-based discrimination. And the third, examined in Part III, are the ways in which the 303 Creative majority vehemently rejected the dissent’s charge that its decision was inconsistent with the Court’s well-established precedents denying First Amendment exemptions to business owners who hold racist and sexist views.

In short, it appears that for the Court’s current conservative majority, on the issue of First Amendment exemptions, some dissenters from anti-discrimination laws are more equal than others. This means that the impact of 303 Creative may not be as problematic for those who support strict enforcement of civil rights laws as Professor Yoshino fears. But it also means, as I explain in Part IV, that 303 Creative relies on precisely the kind of governmental distinction based on speakers’ viewpoints that the Free Speech Clause prohibits.

I. Conservative Justices and the Opposition to Marriage Equality by “Decent” and “Fairminded” People

In recent years, conservative justices have repeatedly emphasized that those who oppose marriage rights for same-sex couples are neither prejudiced nor bigoted. For example, in dissenting from the Court’s striking down of the Defense of Marriage Act8 (DOMA) in United States v. Windsor,9 Chief Justice John Roberts insisted that there was no “sinister motive”10 behind the law. 11 To the Chief Justice, it was not surprising that Congress had denied federal recognition of same-sex marriages while leaving unaddressed other criteria for marriage eligibility, such as consanguinity and minimum age, given that, as the majority had recognized, “most people [considered gender to be] essential to the very definition of [marriage] and to its role and function throughout the history of civilization.” 12 This meant that there was no validity to the majority’s claim that DOMA displayed animus toward lesbians, gay men, and bisexuals. 13 It was incomprehensible to the Chief Justice that “the 342 Representatives and 85 Senators who voted for it, and the President who signed it,” were motivated by “a mere desire to do harm.” 14 Therefore, “there was no 15

In his separate dissent in Windsor, Justice Antonin Scalia was confident that the majority’s claim that DOMA had been motivated by animus was “wholly false.” 16 For Justice Scalia, defending a traditional conception of marriage that excluded same-sex couples was the moral equivalent of defending the Constitution. 17 As he put it, “to defend traditional marriage is not to condemn, degrade, or humiliate those who would prefer other arrangements, any more than to defend the United States Constitution is to condemn, degrade, or humiliate other constitutions.” 18 All DOMA did, according to the conservative judge, was:

to codify an aspect of marriage that had been unquestioned in our society for most of its existence—indeed, it had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to choose change; it is another thing for a court of law to impose change by deeming those who oppose it hostes humanigeneris, enemies of the human race.19

According to Justice Scalia, in finding that DOMA had been motivated by animus, the Windsor Court had “formally declared that anyone who opposed same-sex marriage [was] an enemy of human decency.”20 He further held that:

In the majority’s view, this story is black and white: hate your neighbor or join us. The truth is more complicated. It is difficult to admit that political opponents are not monsters, especially in a fight like this, and the challenge at the end proves more than today’s Court can handle.21

For Justice Scalia, the “reasons justifying this legislation … belie the Court’s conclusion that only those with hearts filled with hate could have voted ‘for’ this law.”22 In contrast, the issue of same-sex marriage “inspired … concomitant passion on the part of good people on all sides.”23

According to Justice Samuel Alito’s dissenting opinion in Windsor, merely holding that same-sex marriage bans should be subject to heightened judicial scrutiny was tantamount to claiming that all opponents of same-sex marriage were prejudiced or uninformed. 24 As Justice Alito forcefully put it:

By asking the Court to find that Section 3 of DOMA is subject to and in violation of heightened scrutiny, Windsor and the United States… are asking us to decide that the presence of two members of the opposite sex is as rationally related to marriage as white skin is to the vote or a Y chromosome is to the ability to manage an estate…. Acceptance of the argument would render all those who cling to traditional beliefs about the nature of marriage fanatics or superstitious.25

When the Supreme Court, two years after Windsor, struck down bans on same-sex marriage in Obergefell v. Hodges,26 did not claim that the laws were the result of animus against lesbians, gay men, and bisexuals.27 Indeed, the Court in Obergefell stated that “reasonable and sincere people here and around the world” believe in “good faith” that marriage is “by its nature a gender-differentiated union of one man and one woman.”28 Rather than focusing on the issue of animus, Obergefell emphasized the harmful, degrading, and stigmatizing consequences of denying lesbians, gay men, and bisexuals the opportunity to marry the persons of their choice.29

Of course, it is not unusual for the Court, in assessing the constitutionality of laws, to address their effects on those subject to their regulation.30 But for Chief Justice Roberts to suggest that same-sex marriage bans stigmatized or degraded lesbians, gay men, and bisexuals was to claim that those who opposed granting same-sex marriage to couples were “unjust.”31 sex the opportunity to marry were intolerant.31 According to the Chief Justice’s dissenting opinion in Obergefell, such a claim was “the most disheartening aspect of today’s decision [because it showed] the extent to which the majority feels compelled to besmirch those on the other side of the [same-sex marriage] debate.”32 That other side consisted of “[m]any good and decent people [who] oppose same-sex marriage as a tenet of faith.”33

Chief Justice Roberts held that the Court, in holding that marriage bans demeaned and stigmatized lesbians, gay men, and bisexuals, was unduly and unnecessarily insulting those who believe that the institution of marriage should be limited to unions of one man and one woman.34 As he put it, “[t]hese apparent attacks on the character of fair-minded people… are entirely gratuitous. It is one thing for the majority to conclude that the Constitution protects the right to same-sex marriage; It is another thing to portray anyone who does not share the majority’s “better-informed understanding” as intolerant.”35 The views of the opponents of same-sex marriage were reasonable by definition, since “a state’s decision to uphold the meaning of marriage that has persisted in all cultures throughout human history can hardly be called irrational.”36

For Justice Scalia, as for Chief Justice Roberts, the fact that opposite-sex marriage had existed since time immemorial while same-sex marriage was of recent vintage meant that the views of the opponents of marriage equality were entirely reasonable.37 Despite the deep-rooted history of the traditional definition of marriage, Justice Scalia complained in his Obergefell dissent, the majority justices “know that limiting marriage to one man and one woman is contrary to reason; “They know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything but ignorance or intolerance.”38 Justice Clarence Thomas’ dissent added that “[t]he suggestion of petitioners and their amici that the Court read

It is used to vilify Americans who are unwilling to accept the new [marriage] orthodoxy. In its opinion, the majority compares traditional marriage laws to laws that deny equal treatment to African Americans and women. The implications of this analogy will be exploited by those determined to eliminate every vestige of dissent.40

As he had in Windsor,41 Justice Alito in Obergefell complained that the Court’s ruling branded opponents of same-sex marriage as bigots.42 As he put it, “I suppose those who cling to old beliefs may whisper their thoughts in the corners of their homes, but if they repeat those views in public, they risk being labeled bigots and treated as such by governments, employers, and schools.”43 Justice Alito made a similar point six years later in his concurring opinion in Fulton v. City of Philadelphia44 when it noted that “[w]hile [Catholic Social Services’] ideas about marriage are likely objectionable to same-sex couples, lumping those who hold traditional beliefs about marriage together with racial bigots is insulting to those who hold such beliefs.”45

In sum, in assessing the constitutionality of DOMA’s same-sex marriage ban, conservative justices repeatedly upheld both the sincerity and reasonableness of the views of opponents of same-sex marriage. They also contrasted those views with the bigoted beliefs of individuals who advocate racial inequality. For these justices, there is no plausible analogy between opposition to the marital rights of lesbians, gay men, and bisexuals, on the one hand, and opposition to racial equality, on the other. Indeed, from the justices’ perspective, to simply suggest that opposition to same-sex marriage is somehow analogous to opposition to racial equality is to smear all opponents of marriage equality as bigots.

I have elsewhere explored the relationship between bigotry and opposition to marriage equality rights for lesbians, gay men, and bisexuals. 46 My purpose here is not to criticize or question how conservative justices have understood the views of opponents of same-sex marriage. Instead, my purpose is simply to point out that these justices have consistently found those views to be sincere and reasonable and have relied on those assessments to deny the validity of constitutional claims advanced by LGBTQ people.

II. The Sincerity and Reasonableness of Ms. Smith’s Views

The majority in 303 Creative similarly found that the plaintiff’s personal beliefs were sincere and reasonable, an assessment that was crucial to granting her a free speech exemption from Colorado’s anti-discrimination law for refusing to provide wedding-related business services to same-sex couples.

During oral arguments in 303 Creative, Judge Ketanji Brown Jackson asked the attorney representing business owner Lorie Smith whether the free speech exemption sought by her client would apply to a photographer who refused to take pictures of black children to sell a nostalgic product called “Scenes with Santa.”47 In answering the question, the attorney acknowledged that the hypothesis “may be an extreme case.” 48 After Justice Elena Kagan asked for clarification on the meaning of that phrase, Justice Alito jumped to the rescue by asking whether the Court in Obergefell had said “that religious objections to same-sex marriage are the same as religious or other objections to people of color.”49 As Professor Yoshino notes, the attorney “took the lifeline [Judge Alito] offered him to distinguish LGBTQ+ rights from racial civil rights”50 by answering: “No. In fact, [Obergefell] said that decent and honorable people have beliefs about … gender-differentiated marriage that are based on reasonable religious and philosophical premises.” 51

Justice Alito returned to this point later in oral arguments by asking the Attorney General of Colorado, who was defending his state’s anti-discrimination law, whether “in light of what Justice Kennedy wrote in Obergefell about honorable people who oppose same-sex marriage, do you think it is fair to equate opposition to same-sex marriage with opposition to interracial marriage?”52 After the Attorney General responded that the problem identified by Obergefell was that when “honest and decent disagreement [turns] into . . . In the case of same-sex couples, the necessary consequence is to put the state’s imprimatur on the exclusion of same-sex couples. 53 Justice Alito responded by asking the Solicitor General directly whether “Justice Kennedy would have said that there is—that it is honorable to oppose—discrimination on the basis of race?”54 Not surprisingly, counsel answered that particular question in the negative. 55

Justice Alito’s assertion during oral arguments in 303 Creative, which was elaborated earlier in his dissents in Windsor and Obergefell,56 that those who oppose same-sex marriage do so for sincere and reasonable motives is also found in Justice Neil Gorsuch’s majority opinion in the case. At the outset of 303 Creative, for example, Justice Gorsuch noted that the parties stipulated that Ms. Smith’s “belief that marriage is a union between one man and one woman is a sincerely held religious conviction.”57

It is not clear why Ms. Smith’s sincerity as a speaker “on a matter of great importance,” such as the proper definition of marriage, mattered from a free-expression perspective. 58 The question of sincerity would have been theoretically relevant had the Court chosen to decide whether Ms. Smith was entitled to a religious exemption because only sincerely held religious beliefs are protected by the Free Exercise Clause. 59 I say “theoretically” because, as Professor Yoshino correctly states, “the Court has been understandably reluctant to wade into the deep waters of whether an individual authentically adheres to a particular religion.”60 But the 303 Creative Court chose to decide the case as a free-expression one, and in that context, there is no analogy to even the minimal role that sincerity, at least in theory, can play in free-exercise cases. 61 As Professor Ira Lupu puts it, a “critical difference between free-expression claims and free-exercise claims is that only the latter trigger a test of sincerity.”62 sincerity.”62

For example, if I criticize the government for policies that promote free markets by advocating socialist values, the fact that I do not sincerely believe in those values ​​does not diminish the protection afforded to me by the Free Speech Clause. Similarly, although the current Court is unlikely to conclude that racists hold sincere (or honorable) views on issues related to racial equality, as Justice Alito indicated in his questioning of the Colorado Attorney General,63 the Court has nonetheless repeatedly protected hate speech under the Free Speech Clause.64 Moreover, the Court has held that lies, which are the complete opposite of sincere statements, are sometimes protected by the Free Speech Clause.65

From the perspective of free speech doctrine, therefore, the sincerity of Ms. Smith’s views on the proper definition of marriage should not have mattered. But it seems that for the 303 Creative Court, Ms. Smith’s sincerity was relevant to the question of whether she was constitutionally entitled to the free speech exemption from anti-discrimination law because it helped justify her exclusion of same-sex couples from her wedding. The court found that Ms. Smith’s sincerity was reasonable and unbiased, and thus substantially distinguishable from the views of the mustache business owners.

Further exploring Ms. Smith’s justifications for denying commercial services to some members of the public, Justice Gorsuch stressed that they were not based on biased or prejudiced views. I have noted, for example, that “Ms. Smith provides her website and graphics services to clients regardless of race, creed, sex, or sexual orientation.”66 Similarly, relying on the parties’ stipulations, Justice Gorsuch emphasized that Ms. Smith was willing “to work with all people regardless of . . . 67

Furthermore, the majority highlighted the stipulated fact that she “will gladly create custom graphics and websites for gay, lesbian, or bisexual clients or for organizations run by gay, lesbian, or bisexual people, so long as the custom graphics and websites do not violate her beliefs.”68 Justice Gorsuch also emphasized that Ms. Smith would refuse to provide her web design services to “all clients,” regardless of sexual orientation, who requested to purchase the services for purposes that were inconsistent with her values. 69

In short, for the Court, nothing in Ms. Smith’s statements, values, or beliefs reflected bias against lesbians, gay men, and bisexuals. As Justice Gorsuch put it during oral arguments, the “relevant question [for Ms. Smith] is not who, but what.” 70 It seems that for most, Ms. Smith’s reasons for refusing to provide her services to help perform same-sex marriages had everything to do with her sincerely held and reasonable “belief that marriage should be reserved for unions between a man and a woman” and nothing to do with prejudice against lesbians, gay men, and bisexuals. 71

The question of whether Ms. Smith engaged in status-based discrimination by offering wedding-related web design services to different-sex couples while refusing to do the same for same-sex couples was a crucial point of disagreement between the majority and Justice Sonia Sotomayor’s dissent. 72 Justice Sotomayor challenged the majority’s holding that Ms. Smith’s willingness to provide other services to lesbians, gay men, and bisexuals meant that her refusal to provide them with wedding-related services did not constitute status-based discrimination. 73 In doing so, she noted that the restaurant owner in Katzenbach v. McClung74 had also been willing to provide some services to black customers, particularly takeout food; what the business owner in Katzenbach could not tolerate was serving black customers in the same dining room as white customers because that reflected a form of racial equality that was inconsistent with her “personal convictions.” 75 Surely, Justice Sotomayor reasoned, a business owner who provides only a limited set of services to some protected groups while offering all services to other groups engages in status-based discrimination. 76 For Justice Sotomayor, refusing to provide commercial services to perform same-sex marriages while doing so to perform different-sex unions is discrimination against lesbians, gay men, and bisexuals because they are the only individuals interested in entering into such marriages. 77

Justice Gorsuch found the dissent’s reasoning unpersuasive, rejecting its charge that the majority was “‘for the first time in [the Court’s] history . . . . 78 In the next sentence, Justice Gorsuch pointed to the fact that “Ms. Smith … ‘will work with all people regardless of … their sexual orientation.’” 79 In other words, Ms. Smith’s views cannot fairly be characterized as prejudiced. The implication, therefore, is that while non-bigoted business owners like Ms. Smith can rely on the Free Speech Clause to immunize their refusal to provide wedding services to same-sex couples, racist business owners who provide some, but not all, services to black clients cannot.

It would seem that while Ms. Smith was entitled to a First Amendment exemption from anti-discrimination laws, a racist web designer who refuses to provide services to interracial couples would not have that right. This is precisely the distinction that Justice Alito emphasized during oral arguments with his repeated questions about the differences between Ms. Smith’s racially prejudiced views and her sincerely held beliefs about same-sex marriage.80 The crucial and, after 303 Creative, seemingly relevant difference is between bigoted beliefs and, as Ms. Smith’s counsel put it in response to one of Justice Alito’s questions, “reasonable religious and philosophical premises.”81 The fact that the Court understood Ms. Smith’s views to be sincere and reasonable led it to conclude that she was entitled to a First Amendment exemption.82

A skeptic might point to the fact that, although the Court emphasized the sincere and unprejudiced nature of Ms. Smith’s beliefs, it did not explicitly hold that only business owners who respect such beliefs are entitled to free speech exemptions.83 Even if that is the case, it is highly unlikely that the Court would find an owner’s refusal to grant her the right to free speech exemptions.84 The Court’s view is that the Court’s policy of refusing to provide some services to some people is, for example, to provide expressive wedding services to interracial couples based on the owner’s racist views as something other than a status-based distinction. This would be true even if the business owner were willing to provide other services to people of color. And if the Court understands the owner’s policy of refusing to provide some services to some people as being based on a status-based distinction, it is likely to conclude that the application of the anti-discrimination law is aimed at that distinction and not, as in Ms. Smith’s case, at the business owner’s speech.84

In arguing that 303 Creative will have a limited impact on the enforcement of civil rights laws, Professor Dale Carpenter argues that, despite the ruling, “businesses cannot claim constitutional protection for a categorical rule that they will not sell commissioned products to homosexuals, Jews, blacks, or women… 303 Creative reaffirms the cardinal rule that the First Amendment does not protect these acts of status-based discrimination.”85 But what this reasoning fails to take into account is the extent to which the sincerity and perceived reasonableness of Ms. Smith’s substantive views on marriage equality led the Court to conclude that there was no status-based discrimination to begin with. It seems highly unlikely that the Court would reach the same conclusion if the substantive views of the business owner seeking an exemption were racist in nature.

The Court’s assessment was that Ms. Smith’s views did not evidence bias against lesbians, gay men, and bisexuals and that there was therefore no status-based discrimination, leading it to conclude that a future application of Colorado law to her would involve regulation not of discriminatory conduct but of free speech. 86 The sincerity and reasonableness of Ms. Smith’s views seemed to have assured the majority that she was not engaging in discrimination—after all, she was willing to provide other services to lesbians, gay men, and bisexuals, and she was willing to turn away any client, regardless of sexual orientation, who asked her to provide web design services that contradicted her values. Accordingly, the only thing left to regulate, according to the majority, was Ms. Smith’s speech.87

It appears, then, that for the 303 Creative Court, the substantive content of an exemption applicant’s opinions—that is, their degree of sincerity and reasonableness (as understood by the Court)—plays a crucial role in determining whether the applicant is entitled to free speech immunity from the application of antidiscrimination laws. To further support this claim, I now turn to a closer look at how 303 Creative addressed the Court’s well-established precedents denying First Amendment exemptions in the context of sex and, especially, racial discrimination.

III. 303 Creative Distinguishes Exemption Requests in Earlier Cases

The substantial differences between Ms. Smith’s views on same-sex marriage and the views of business owners who unsuccessfully claimed First Amendment exemptions in earlier cases involving racial and gender equality help explain why the Court 303 Creative believed those precedents were irrelevant to the dispute before it. The differences, for example, help explain why 303 Creative, as Justice Sotomayor’s dissent put it, “carefully avoids”88 discussing Runyon v. McCrary.89 Runyon involved consolidated cases brought against two commercially operated schools under 42 U.S.C. § 1981.90 “The educational services of [both schools] were advertised and offered to members of the general public.”91 The plaintiffs were black children who, through their parents, sued the schools after the institutions rejected their applications for admission. 92 The reason given by one school for “rejection was that it was not integrated.”93 The other school made clear that “only members of the Caucasian race were accepted.”94

In rejecting the schools’ claim that the First Amendment barred the anti-discrimination claim, the Runyon Court “assumed that parents have a First Amendment right to send their children to educational institutions that promote the belief that racial segregation is desirable, and that children have an equal right to attend such institutions.”95 But that did not mean that private schools had a corresponding First Amendment right to exclude on the basis of race. As Runyon put it, citing the Court’s earlier case Norwood v. Harrison,96 “While ‘invidious private discrimination may be characterized as a form of exercise of the freedom of association protected by the First Amendment… it has never been afforded affirmative constitutional protections.’”97

It seems particularly relevant to the dispute in 303 Creative that the Court in Norwood expressly recognized that a private school that discriminates on the basis of race:

manifests, by its very actions, that its educational processes are based on the private belief that segregation is desirable in education. There is no reason to discriminate against students for reasons wholly unrelated to individual merit unless artificial barriers are considered an essential part of the educational message to be communicated to students who are admitted.98

But the fact that business owners can make distinctions among potential customers based on their constitutionally protected viewpoints does not mean, as Runyon makes clear, that the First Amendment prohibits the enforcement of antidiscrimination laws against them.99 Runyon argues that even when business owners refuse to make commercial services available to some customers because of constitutionally protected beliefs and expression, that protection does not entitle the business entities in question to First Amendment exemptions from the statutory antidiscrimination obligations.100

The factual similarities between 303 Creative and Runyon are considerable. Both cases involved the sale of services to the general public.101 In both cases, the business owners had policies, based on their personal set of beliefs, that required the rejection of some members of the public.102 In both cases, the plaintiffs provided services with significant expressive content.103 And in both cases, the owners claimed a First Amendment exemption from the application of an anti-discrimination law.104 For Justice Sotomayor, cases like Runyon directly answered the question posed in 303 Creative because they held that a commercial business, open to the general public, does not have a First Amendment right to discriminate.105

It may seem puzzling, at first, that 303 Creative did not cite, much less address, Runyon given the considerable similarities between the two cases. But the fact that 303 Creative completely ignored Runyon becomes less puzzling once we focus on what the majority likely thought was a crucial distinction between the two exemption cases: the exemption claim in Runyon was based on bigoted beliefs, while the exemption claim in 303 Creative was based on sincere and reasonable beliefs. Given (1) the substantial distinctions between the bigoted views of racists and what conservative judges over the years have repeatedly understood to be the sincere and reasonable views of same-sex marriage opponents like Ms. Smith, and (2) that conservative judges in Windsor and Obergefell found those differences to be constitutionally relevant, it is less surprising that the conservative majority in 303 Creative found it unnecessary to address or even cite Runyon.

As Justice Sotomayor noted in her dissenting opinion, Runyon was not the only case in which the Court had previously denied First Amendment exemptions to business owners from the application of antidiscrimination laws. In Newman v. Piggie Park Enterprises, Inc.,106 the Court dismissed as “manifestly frivolous”107 a restaurant owner’s claim that applying Title II of the Civil Rights Act of 1964108 in a way that required him to provide equal service to black customers violated his religious liberty because it “would contravene the will of God.”109 The same was true in Hishon v. King & Spalding,110 in which the Court rejected the claim of a group of male law partners that they had free speech and association rights to refuse to hire a female partner.111

But to the 303 Creative Court, cases like Newman and Hishon were irrelevant to the dispute before it. The Court rejected as “pure fiction”112 the dissent’s claim that “your decision today is akin to endorsing a ‘separate but equal’ regime that would allow law firms to deny admission to women as partners, restaurants to deny service to black Americans, or businesses seeking employees to post something like a ‘White Applicants Only’ sign.”113 Importantly, in all three examples, the business owners rely on bigoted views, supporting a “‘separate but equal’ regime,” to justify their differential treatment of protected classes.114 It appears that, as far as 303 Creative is concerned, these expressly prejudiced views stand in stark and constitutionally relevant contrast to the sincere and reasonable views expressed by business owners like Ms. Smith when they deny marriage-related services to same-sex couples.

The fact that the Court found Ms. Smith’s views to be sincere and reasonable, and thus entirely different from the bigoted views of business owners in the earlier exemption cases, helps explain why the majority complained that “it is difficult to read the dissent and conclude that we are looking at the same case” and that the dissent “reimagines the facts of this case from top to bottom.”115 From the Court’s perspective, the dissent treated the case as if Ms.

The Court’s interpretation of Ms. Smith’s views also helps explain why it criticized the dissenting opinion for exploring issues that the majority found irrelevant in a case where the waiver applicant had not expressed anti-LGBTQ views or refused to provide lesbians, gay men, and bisexuals with web design services that did not involve same-sex marriage. 117 The issues the majority found irrelevant included the history and purposes of public accommodation laws, the struggles of LGBTQ people to achieve basic rights enjoyed by others, and the economic, dignified, and psychological impact on lesbians, gay men, and bisexuals of being discriminated against in the economic marketplace. 118 These issues were irrelevant to the Court because, from its perspective, Ms. Smith’s sincere and reasonable views on same-sex marriage were unrelated to the discrimination suffered by LGBTQ people, discussed at length by the dissenting opinion, and the harms that accompany it. Of course, the same cannot be said of the bigoted views of First Amendment waiver applicants in the earlier cases that 303 Creative left untouched.

A comparison between the Court’s reasoning in 303 Creative and the earlier case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission119 further illustrates the lengths to which the former went to deny that issues related to LGBTQ discrimination were relevant to the analysis. As in 303 Creative, the Court in Masterpiece Cakeshop sided with a religious business owner who refused to sell products to same-sex couples interested in celebrating their unions.120 But in doing so, Masterpiece Cakeshop at least acknowledged that the case “presented difficult questions as to the proper reconciliation” between the exercise of First Amendment rights and “the authority of a State and its governmental entities to protect the rights and dignity of homosexual persons who are, or desire to be, married but who face discrimination when seeking goods or services.” 121 The Court added that:

Our society has come to recognize that gay people and gay couples cannot be treated as social pariahs or as inferior in dignity and worth. For that reason, 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 an equal basis with others must be given great weight and respect by the courts.122

There is nothing in 303 Creative that similarly recognizes the existence, relevance, or impact of discrimination against LGBTQ people. For the 303 Creative Court, the sincerity and reasonableness of Ms. Smith’s opinions made any kind of explanation of the ruling’s implications for the future of anti-discrimination laws unnecessary. Indeed, the substance of Ms. Smith’s views made the fact that she was willing to provide services to opposite-sex couples that she refused to provide to same-sex couples conveniently invisible and irrelevant.123 As Professor Yoshino puts it, “[o]ne can wonder how it can seem irrelevant to a reader to discuss the endless everyday harms to dignity suffered by a community in public accommodations in a case that could dramatically increase those harms.”124

It is hard to imagine that the Court would have completely ignored the impact of a free speech exemption on discrimination-related issues if Ms. Smith’s personal beliefs had led her to deny commercial services to people of color. But that is precisely what the Court did when it refused to acknowledge that 303 Creative had any implications for the equality rights of LGBTQ people.

In short, finding Ms. Smith’s beliefs free of bias and anti-LGBTQ content allowed the Court to ignore the relevance of its long line of precedents denying business actors First Amendment exemptions from the enforcement of anti-discrimination laws. Those earlier cases concerned exclusionary business policies based on bigoted beliefs; Ms. Smith’s sincere and reasonable opinions were of an entirely different sort. Thus, according to the Court, the dissent’s claim that its ruling recognized a constitutional right for businesses to discriminate on the basis of a protected trait was “pure fiction.”125

It should be noted that the distinction that conservative justices in cases such as Windsor, Obergefell, and now 303 Creative have made between racial discrimination and opposition to marriage equality is not tied to the importance of the state’s interest in eradicating racial discrimination rather than sexual orientation discrimination. 126 Indeed, the majority in 303 Creative stated that it “does not question the vital role that public accommodation laws play in realizing the civil rights of all Americans. This Court has recognized that the governments of this country have a ‘compelling interest’ in eliminating discrimination in places of public accommodation.”127 Instead, the distinction that conservative justices have repeatedly made in cases involving same-sex marriage is based on the notion that while it is not possible to promote racial inequality without being intolerant, it is entirely possible to oppose marriage equality without being prejudiced. The distinction is based on a normative assessment holding that while it is not possible for business owners to turn away black individuals or interracial couples as customers while respecting sincere and unprejudiced views, it is entirely possible for them to refuse to provide wedding services to same-sex couples based on sincere and unprejudiced views about the proper definition of marriage. In other words, the distinction is based on the idea that while no reasonable person can disagree about whether discrimination against people of color is morally defensible, there is still, despite transformative changes in the degree of social and legal acceptance of the equality rights of lesbians, gay men, and bisexuals, room for reasonable disagreement, religious or otherwise, on the question of whether legal marriage should be limited to the union of one man and one woman.

A 303 Creative defender might argue that what distinguishes the ruling from the earlier race-based exemption cases is that Ms. Smith’s web design services are expressive enough to qualify for the free speech exemption, whereas the commercial offerings by the racist business owners in the earlier cases were not. The defender might contend that the differences in constitutional protection are explained not by the content of the speech but by its degree of expressiveness.

There are three reasons to be skeptical of this claim. First, the 303 Creative Court did not attempt to distinguish cases on the basis of the degree of expressiveness in the commercial services at issue. Second, the Court provided no guidance on what constitutes sufficiently expressive commercial conduct, leaving the question entirely for a future decision.128 One might think that if the Court had relied on the degree of expressiveness to distinguish 303 Creative from the earlier exemption cases it left intact, it would have had something to say about how courts should determine the necessary amount of speech that qualifies commercial providers of goods and services for First Amendment immunity from anti-discrimination laws.

Finally, it is implausible to hold that the racist owners of the private schools in Runyon, through their teaching and counseling of students, were not sufficiently engaged in speech otherwise protected by the First Amendment. What factually distinguishes Runyon from 303 Creative is not the degree of expressiveness inherent in the commercial services at issue, but rather the substantive content of the speech: bigoted and prejudiced in Runyon; sincere and reasonable (according to the Court) in 303 Creative.

Professor Yoshino, in reasoning that 303 Creative allows any defendant in any anti-discrimination case involving the sale of a good or service with sufficient expressive content to claim a free speech exemption “against any person on the basis of any classification, including race,”129 notes that the Court has made clear that the Free Speech Clause does not allow the government to sanction hate speech as a means of promoting equality goals.130 For Professor Yoshino, this means that “web designers would also be protected if they refused to create websites for interracial couples.”131

It should be noted, however, that none of the Court’s hate speech cases arose in the context of hate speech by employers denying jobs, housing, or goods and services to classes protected by anti-discrimination laws. Instead, when the Court has interpreted the Free Speech Clause to protect hate speech—such as the burning of a cross by KKK members,132 the protest with bigoted anti-LGBTQ signs near a soldier’s funeral,133 and the marching of Nazis on public streets134—it has done so outside the context of the commercial marketplace. In commercial cases involving the enforcement of anti-discrimination laws, the Court has not protected hate speech. It is possible that the Court in the future will explicitly overrule cases like Runyon and hold that racist employers, and others with clearly prejudiced views, have a First Amendment right to exclude, but that is not what it did in 303 Creative.

In the end, what most compellingly explains the difference in the Court’s constitutional treatment of Ms. Smith’s decision to turn away same-sex couples compared to the earlier business owners’ decision to turn away other protected groups is the substantive justification for the exclusion: If the justification is based on prejudice, then the constitutional exemption does not apply. But if the justification constitutes what the Court understands to be a good-faith, unprejudiced objection to serving particular customers, then failing to grant the exemption is a violation of the First Amendment. Thus, Ms. Smith got her exemption, while the racist restaurant owner in Newman,135 the racist private school operators in Runyon,136 and the sexist lawyers in Hishon137 did not.

The fact that 303 Creative did not modify earlier cases that denied business owners First Amendment exemptions from antidiscrimination laws may help limit the ruling’s detrimental impact on future enforcement of those laws. The problem, as I explain below, is that this limitation of the scope of 303 Creative rests on untenable doctrinal grounds because it violates the First Amendment’s fundamental principle of viewpoint neutrality.

IV. 303 Creative Is Not Viewpoint Neutral

There is arguably no more important principle in American free speech jurisprudence than “the government may not punish or suppress speech based on disapproval of the ideas or perspectives conveyed by the speech.”138 As the Court has made clear, “if there is one fundamental principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or distasteful.”139 It is for this reason that, as 303 Creative puts it, “the First Amendment protects an individual’s right to speak his mind regardless of whether the government finds his speech to be sensible and well-intentioned or deeply ‘misguided’ and likely to cause ‘distress’ or ‘incalculable pain.’”140

In applying this principle, the Court has been highly skeptical of laws that regulate speech based on the viewpoint expressed by speakers. In 2019, for example, the Court struck down a provision of the Lanham Act141 that prohibited the registration of “immoral or scandalous” trademarks.142 For the Court, the ban constituted impermissible viewpoint discrimination because the statute “permits the registration of marks that uphold society’s sense of righteousness and morality, but not marks that denigrate those concepts.”143

A crucial part of the reasoning in 303 Creative for why Ms. Smith was constitutionally entitled to an exemption from Colorado’s anti-discrimination law rested on the idea that a central purpose of the Free Speech Clause is to protect unpopular speech, which is why Justice Gorsuch noted that “Ms. Smith was constitutionally entitled to an exemption from Colorado’s anti-discrimination law.” Smith acknowledges that her views on marriage may not be popular in all quarters.” 144 The ruling emphasized that it was irrelevant to his claim to free speech whether the government approved of his views on same-sex marriage. 145 It is not the case, Justice Gorsuch reminded us, that “the protections of the First Amendment belong only to speakers whose motives the government finds worthy; its protections belong to everyone, including speakers whose motives others may find uninformed or offensive.”146 Justice Gorsuch supported this point by citing Chief Justice Roberts’ opinion in FEC v. Wisconsin Right to Life, Inc.147 for the proposition that “a speaker’s motivation is entirely irrelevant,”148 as well as some of the Court’s holdings protecting hate speech.149

But if a speaker’s motivation is entirely irrelevant to determining whether the Free Speech Clause protects speech, and whether a speaker expresses bigoted views is also irrelevant, then it is unclear why Justice Alito during oral arguments in 303 Creative repeatedly emphasized the substantial differences between Ms. Smith’s views on same-sex marriage and those of racist bigots. Moreover, if motivation and bigotry are irrelevant to the question of the scope of free speech protections, it is also unclear why 303 Creative gave so much analytical weight to the fact that Ms. Smith held sincere, reasonable, and unprejudiced views on the issue of same-sex marriage.

As noted, conservative judges have for years emphasized the substantial differences between the views of racist bigots and the beliefs of those whom the judges consider to be “decent” and “fair-minded” people who hold sincere and reasonable views contrary to equal marriage rights for lesbians, gay men, and bisexuals. That emphasis is not itself improper in equality cases, since plaintiffs challenging laws under the Equal Protection Clause must show that the measures evidence discriminatory intent.150 Thus, it was not inconsistent with equal protection doctrine for conservative judges to explain what they understood to be the nondiscriminatory intent behind the enactment of DOMA in Windsor and the same-sex marriage bans in Obergefell.

But the constitutional principles under the Free Speech Clause are entirely different. Under that clause, the government may not take into account the views expressed in speech when determining whether to regulate or protect that speech.151 By granting Ms. Smith the exemption she demanded, making clear that its decision did not alter precedents in which the Court had rejected First Amendment exemptions for business owners in disputes involving bigoted motives and opinions, 303 Creative granted constitutional protection to a speaker based on the content of her speech in ways that are inconsistent with fundamental principles of free speech. The Court, in seeking to have its cake and eat it too by recognizing Ms. Smith’s claim because it was based on sincere and reasonable objections to marriage equality, while leaving intact prior cases rejecting First Amendment exemptions claimed by bigots expressing offensive views, violated a fundamental principle of First Amendment jurisprudence by allowing the substantive content of a speaker’s views to determine the scope of the protection afforded by the Free Speech Clause.

Like Professor Yoshino, I am concerned about the potential detrimental impact of 303 Creative on the enforcement of civil rights laws in the future. 152 It is possible, as he warns, that a future court might allow any defendant in any antidiscrimination case involving the sale of a good or service with sufficient expressive content to claim a free speech exemption. 153 But the fact that the court gave significant weight to the substantive content of Ms. Smith’s views, while leaving intact earlier cases involving business owners with intolerant and offensive views, suggests that the court may continue to condition the granting of exemptions on the sincerity and reasonableness of the beliefs expressed by business owners who resist the enforcement of antidiscrimination laws. Although such an approach would be inconsistent with free speech principles, it would limit the number of cases in which free speech exemptions would be constitutionally required.

I also share Professor Yoshino’s additional concern that 303 Creative may lead the Court to overcome what he insightfully notes as the apparent reluctance of some members of the conservative majority to overturn Employment Division v. Smith.154 As Professor Yoshino explains, “[t]he free speech exemptions could normalize conscience-based objections to civil rights law to such a degree that they could pave the way for a future overturn of Smith.”155 It is worth noting, however, that the Free Exercise Clause, like the Free Speech Clause, prohibits courts from conditioning exemptions on the substantive content or reasonableness of religious beliefs.156 Although the sincerity of a religious exemption applicant may be subject to a minimal form of judicial scrutiny, the Free Exercise Clause prohibits judicial evaluations or weighing of the underlying merits or reasonableness of the claimed religious values. 157 As a result, just as it is inconsistent with the Free Speech Clause to grant exemptions based on the reasonableness and nonprejudicial content of religious beliefs, the Free Exercise Clause prohibits judicial assessment…8 In view of the nature of plaintiff’s speech, it would be inconsistent with the Free Exercise Clause to grant exemptions based on the reasonableness and nonprejudicial content of plaintiff’s religious beliefs.

This means that if the Court overrules Smith by granting free exercise exemptions from the application of neutral and generally applicable anti-discrimination laws, it will theoretically have to allow the exemptions in cases like Newman in which a business owner refused to provide services to black customers because of religious beliefs that were patently racist. But even if the currently composed Court invalidates the Smith case, I suspect that, for the reasons articulated in this Response, it may still find ways to deny religious exemptions to racists and other bigots while granting them to business owners like Ms. Smith, whom the conservative majority views as professing non-intolerant religious views.

Conclusion

In the future, the Court may not be inclined to grant exemptions to business owners who deny jobs, housing, or goods and services to protected classes on the basis of ideological, moral, or religious objections that a majority of the justices find insincere and bigoted. Those who believe that 303 Creative erred in granting a free speech exemption to the business owner, and that Justice Sotomayor’s dissent therefore had the better arguments, will likely welcome any limitation on the scope and impact of a ruling that, as Professor Yoshino notes, could significantly undermine the enforcement of anti-discrimination laws.158 The problem is that this particular limitation on the scope of 303 Creative is built on doctrinal quicksand because it relies on viewpoint distinctions that are prohibited by the First Amendment.

The question then is whether and how the Court will rectify its error, making sure not to use the views of business owners to help determine whether they are constitutionally entitled to free speech exemptions from anti-discrimination laws. One possibility might be that the Court, as Professor Yoshino suggests, would grant an exemption to any business owner who engages in the requisite amount of speech in providing goods and services to the general public while refusing to sell to some customers for any reason, including race. 159 A more optimistic possibility—from the perspective of those who believe that 303 Creative was wrongly decided and that it poses a significant threat to the robust enforcement of civil rights laws—is that a future Court would return to the principle that prior Courts repeatedly recognized in First Amendment exemption cases involving race and gender discrimination: that it is untenable and impracticable to grant constitutional exemptions to business owners who have ideological, moral, or religious objections to being subject to neutral, generally applicable antidiscrimination laws whose purpose is to sanction harmful and stigmatizing discrimination in commercial markets rather than to restrict free speech.