Last week, the United States Supreme Court held oral argument in 303 Creative v. Elenis. It now appears that the court’s conservative majority—over three very exasperated dissenters‚ Justices Elena Kagan, Sonia Sotomayor, and Ketanji Jackson—will at last put to rest one of the most divisive issues of our age: whether state public accommodation law can compel various suppliers of wedding services—web designers, cake bakers, photographers, and more—to provide services expressing support for same-sex marriage inconsistent with their personal and religious beliefs. At long last, the answer appears to be “no.”

The problem received an indecisive answer in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), when Justice Anthony Kennedy issued a wishy-washy opinion that found that “a clear and impermissible hostility toward the sincere religious beliefs motivating his [proprietor Jack Phillips’s] objection” by a member of the state’s Civil Rights Commission tainted its judgment, and called for a rehearing of the case. That Delphic ruling left unaddressed whether a more circumspect Colorado commission could impose its will on future proprietors who refused to take certain jobs if it meant bearing a message with which they fundamentally disagreed.

Lorie Smith of 303 Creative did not want to wait to find out the answer from a commission summons, so she sought a declaratory judgment that would allow her to start operating her photography-business website without having to face sanctions for not providing wedding services to same-sex couples, which would violate her core religious beliefs. In this case, the Supreme Court focused solely on the question of whether the state could advance what it sees as a compelling state interest to force Smith, under pain of legal sanction, to post messages she did not believe.

When the case was before the Tenth Circuit in 2021, that court’s majority made two separate findings. The first was its honest admission that Smith was being compelled to say something that she did not want to say, which required some compelling state justification. Its second qualifies as one of the worst economic analyses on record:

This case does not present a competitive market. Rather, due to the unique nature of Appellants’ [303 Creative’s] services, this case is more similar to a monopoly. The product at issue is not merely “custom-made wedding websites,” but rather “custom-made wedding websites of the same quality and nature as those made by Appellants.” In that market, only Appellants exist.

The court then cited the brief of law and economics scholars, which I signed, in the Masterpiece Cakeshop case in support of the proposition that common carriers are subject to a nondiscrimination rule—while offering a preposterous definition of a common carrier that defies hundreds of years of legal history in the United States and England.

Let us set the record straight. One of thousands of companies supplying a bewildering array of similar services operates in a competitive market, not a monopolistic one. As our brief noted, literally thousands of sites cater to LGBT couples—a marketplace with “everything you’ll need for your unforgettable wedding event.” These sites operate in states with LBGT antidiscrimination laws and in those without. Market forces are so dominant in both settings that no defender of Colorado’s aggressive posture has ever identified even one LBGT couple who could not find all the wedding services they needed from the available sites.

At this point, any purported common-carrier-type justification for compelling speech collapses, while Colorado’s prima facie violation of the First Amendment remains.

How there could be a compelling state interest in state compulsion against one tiny niche supplier, given the intensely competitive market, remains unexplained. What was striking about the oral argument in the Supreme Court was that no one once mentioned how an antidiscrimination law operated in either a competitive or monopoly market.

Once the monopoly-control argument disappears, what else can the state conjure as a compelling state-interest argument? In its earlier opinion, the Tenth Circuit wrote that “Colorado has a compelling interest in protecting both the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace.” Both parts of the claim are wrong, or at best partial truths. Dignity interests are always elusive, and they never cut one way. It is not as though only members of groups labeled “marginalized” have these dignitary interests. In Masterpiece, recalcitrant Christian baker Jack Phillips was subject to a barrage of insults, abuses, and attacks, not to mention a coercive state re-education program. Yet somehow his dignity never received the time of day. Nor is it ever clear who counts as a “marginalized group,” or precisely why. LGBT-rights groups possess exceptional political power, the most recent evidence being the rapid passage through Congress of pro-LGBT legislation, which House Speaker Nancy Pelosi defended on the ground that it supports “a belief in the dignity, beauty, and divinity of every person.” Including Jack Phillips?

Moreover, it is worth noting the vast difference between the government’s eagerness to defend the rights of all individuals to form sexual unions by mutual consent on the one side, and its insistence that individuals opposed to those unions facilitate their occurrence on the other—which is the case here. A bystander has little skin in the game. A coerced proprietor who risks losing his or her business has a lot more.

Finally, it is plainly incorrect to say that the Colorado statute is required to ensure consumers have access to the commercial market, which is in no way denied them because some small fraction of market providers choose not to serve any given group of customers.

In response, defenders of these statutes often allege that the ideal in all cases is that all vendors be required to serve all customers no matter how antagonistic their relative positions. But the Colorado law does not operate on such a principle. It only addresses some groups to whom services can or cannot be denied. Still smarting from the lengthy dialogue over this issue with Justice Kagan in Masterpiece, Justice Gorsuch referred to William Jack, a Christian educator in Colorado, who was told by the Colorado commission that he could not require any of three cakemakers to prepare “two cakes in the shape of a Bible to be decorated with the text of three Bible verses” if those bakers found that task “offensive.”

At this point, given the absence of a universal duty of service to all cake customers, we see a form of viewpoint discrimination at work. Critics, or mere nonbelievers, of same-sex marriage are subject to a barrage of abuse and coercion, while their opposites maintain the right to avoid any expressive activities they consider offensive. Yet the competitiveness of the market must also underlie the legal rationale. Neither William Jack nor the tormentors of Jack Phillips should be able to compel speech when so many alternative suppliers are available.

It was instructive, therefore, that neither of the Tenth Circuit’s two rationales came up in the oral argument. Instead, 303 Creative’s attorney Kristen Waggoner showed admirable patience in stressing that the compelled-speech doctrine covers all sorts of speech, including contradictory viewpoints. It does not matter what the speech is about, or how ugly it is: if you don’t want to say things for other people, then you don’t have to, even if it involves, as Justice Sotomayor posited, “people who don’t believe in interracial marriage or . . . people who don’t believe that disabled people should get married.” The First Amendment does not allow Lorie Smith to block those marriages. But it does allow her not to take a role in facilitating such marriages when many others are able to supply the desired services.

In my view, this argument should be decisive in all economic arrangements, including sales of ordinary goods. But Waggoner does not have to follow me down that controversial path; she need only rely on the higher level of scrutiny applicable in speech cases—the compelling-state-interest test—to respond adequately to the challenge.

During oral argument before the Supreme Court, the three liberal justices took a surreal turn. The key to understanding the case, Kagan said, was that it did not involve speech by Smith at all. The speech that was involved in this case was prepared by the customer, not the platform designer who lets customers fill in the “bunch of places” on the “templates” with their relevant information, she said, so that this “standard” website at its essence does not offer any speech by its designer.

But the record was clear: putting up a website is a form of speech. Indeed, as the Tenth Circuit states, Smith’s “creation of wedding websites is pure speech, intended to ‘celebrate and promote the couple’s wedding.’ ” Does Kagan really think that any websites are created in the sterile way she described? Constitutional guarantees are hard enough to apply when key terms are given sensible meanings, as opposed to fanciful ones. This case is all too easy. This form of compulsory speech has no conceivable justification.

© 2022 by the Board of Trustees of Leland Stanford Junior University.

Published in Law