In 1943, as the end of World War II was nowhere in sight and when patriotic national unity around the defeat of fascist aggression from Germany and Japan was at its height, the US Supreme Court ruled in West Virginia State Board of Education v. Barnette that the free speech rights contained in the First Amendment barred public schools from forcing students to salute the American flag at assembly every morning. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein,” wrote Justice Robert Jackson for the court.
Justice Felix Frankfurter filed a passionate, and personal, dissent. As the court’s only Jewish member, he began his dissent with, “One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by our Constitution.” This opening line set up a grave concern about the court’s majority opinion, elevating individual free speech rights over other fundamental constitutional rights, such as rights to property and due process. “The Constitution does not give us greater veto power when dealing with one phase of ‘liberty’ than with another.… Our power does not vary according to the particular provision of the Bill of Rights which is invoked,” wrote Frankfurter.
Justice Frankfurter warned 80 years ago that the Supreme Court was going down a bad path by getting into the business of ranking constitutional rights, protecting some at the expense of others, and today his dissent illuminates what has gone very wrong with our current Supreme Court. In a string of cases decided by an unchecked conservative super-majority, the court has established a tiering of constitutional rights, elevating rights to religious liberty (for some), free speech, and guns over and above other fundamental rights such as equality, public health and security, and bodily autonomy.
This new tiering of rights was fully solidified at the end of June in 303 Creative v. Elenis, the case brought by Lorie Smith, a Colorado website designer, who wanted to be exempt from having to serve same-sex couples should she begin to create wedding websites. She claimed that complying with Colorado’s law prohibiting businesses from discriminating against customers on the basis of their sexual orientation compelled her to express views she disagreed with, namely that same-sex couples had a right to marry. In essence, she was arguing that the state of Colorado’s requirement that a business treat all its customers equally was the same thing as West Virginia forcing elementary school kids to put their hands on their hearts and swear allegiance to the United States flag.
Justice Neil Gorsuch, writing for the court’s majority, agreed with Smith: “the government may not compel a person to speak its own preferred message.” In this case, that was a message relating to the equality rights of LGBTQ people. This new free speech rule extends exponentially further than earlier cases protecting the religious liberty rights of bakers who didn’t want to make wedding cakes for same-sex couples, the owners of chain stores who didn’t want to include contraceptive coverage in their employee health plans, or religious foster care agencies who didn’t want to place kids in families headed by anyone other than married, heterosexual adults. In those cases, the objectors had to show that the law substantially burdened a sincerely held religious belief. In the 303 Creative case, however, all Smith had to show was that her business had some plausible expressive or creative component to it (after all, the word “creative” is in the name of her business) and that she has an opinion that conflicts with laws that would regulate her business. Forcing her to comply with the law, ruled the court, thus amounted to a violation of her First Amendment right to present her message undiluted by views she does not share. In so ruling, Justice Gorsuch did not mention that the court had rejected a similar argument made by the owner of Ollie’s BBQ in 1964 whose personal convictions against integration precluded him from serving African American patrons onsite alongside white patrons, and as such laws prohibiting restaurants from segregating customers on the basis of their race infringed upon the “rights of persons in their personal convictions” to refuse service to Black customers.
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What shocked court watchers and constitutional law experts wasn’t that the court ruled in Smith’s favor—that was expected—rather, it was the breadth of the decision. Perhaps most worrisome is the fact that the court recognized that antidiscrimination laws impact businesses’ free speech rights, and that those free speech rights were virtually absolute. In this regard, the court abandoned its usual “strict scrutiny” analysis, requiring the state to show that it had a compelling interest in enforcing the antidiscrimination law and that it was doing so in a way that protected the speech rights at stake. Justice Gorsuch did none of this, but rather concluded that “when a state [antidiscrimination] law and the Constitution collide, there can be no question which must prevail”—Lorie Smith’s free speech rights. Thus, we see the elevation of speech rights over equality, without considering the weight or importance of the state’s interest in protecting equality rights.
What was also shocking about this decision was that the court put no limiting conditions on this new rule. What other businesses might be considered to have similar free speech rights? Wedding dress designers, florists, caterers, all the other parts of the wedding industrial complex? Or more broadly, many businesses curate a kind of experience for their customers and that curation involves some element of creativity. Might Applebee’s, a family-restaurant, have a right to exclude certain kinds of customers who “dilute” their idea of family? Could romantic-getaway hotels in the Poconos exclude same-sex or interracial or interfaith couples whose relationships conflict with the version of romance the owners have on offer? Could a plantation theme park exclude Black customers since the presence of free Black people would undermine the authentic historical experience they aim to provide? Could Ark Encounter, a Christian theme park in Kentucky, exclude Jews since it’s believed they killed Jesus?
Sadly, we don’t need to conjure up hypotheticals about what kinds of businesses will argue that they now have a right to refuse services to certain members of the public. Only days after the decision, a hair salon in Traverse City, Mich., announced on Facebook that it would not do haircuts for trans and gender-nonconforming customers, “If a human identifies as anything other than a man/woman please seek services at a local pet groomer,” their post read.
Justice Gorsuch’s reasoning in 303 Creative is boundless in other ways as well. So long as the business has some creativity to it, the owner can’t be forced to comply with laws prohibiting workplace sex discrimination if they believe that men should be the top breadwinner in a household, or laws mandating energy efficiency if they believe climate change is a hoax, or laws protecting collective bargaining by employees if they oppose unions because of a viewpoint that they’re corrupt, communist enterprises, or undermine free-market capitalism.
The 303 Creative decision reflects a Supreme Court willing to bend over backward to protect the rights of individual dissenters who want to opt out of laws they disagree with—a deeply antidemocratic turn in the court’s jurisprudence. The Covid cases moved the needle on this dial significantly, protecting the rights of religious dissenters to emergency policies implemented to make public health a priority during an unprecedented deadly pandemic. Read alongside the court’s affirmative-action decision this term and abortion ruling last term, we see a court that has rendered invisible structural forms of disadvantage in the context of reproductive rights, higher education, and voting rights, while it has a hair-trigger response to protecting the rights of faith-based objectors to laws designed to protect the equality rights of people of color, women, and LGBTQ communities.
It’s important to recognize that the court’s willingness to elevate religious liberty rights over other fundamental has largely benefited the claims of evangelical Christians. When Muslims and people from other faith traditions seek respect for or accommodation of their religious practices, the court is nowhere near as deferential. In the end, the new muscular protections the court has granted right-wing Christians, a kind of “special right” to be exempt from laws of general applicability, will be bad for religious liberty and equality more generally, as we’ve seen numerous cases where businesses owned by evangelical Christians have asserted a religious-liberty right to deny services to Jews and people of other faith traditions.
If nothing else, this court will be remembered for its keen ability to manipulate its docket in ways that conceal structural racism, sexism, and homophobia in the name of coming to the rescue of citizens like Lorie Smith who, as the court describes them, hold unpopular opinions and are being persecuted by an overbearing, “woke” state. This is a dangerous direction for the idea of equal citizenship, and for the notion of “equal protection under the laws.”
