When the dissent in 303 Creative LLC v. Elenis wrote of "a backlash to the movement for liberty and equality for gender and sexual minorities," the activism of Professor George and his allies on the Christian right was what they had in mind.
The joint dissent of Justices Sotomayor, Kagan and Jackson in 303 Creative LLC v. Elenis describes…
When the dissent in 303 Creative LLC v. Elenis wrote of "a backlash to the movement for liberty and equality for gender and sexual minorities," the activism of Professor George and his allies on the Christian right was what they had in mind.
The joint dissent of Justices Sotomayor, Kagan and Jackson in 303 Creative LLC v. Elenis describes exactly how little respect right wing Christian activists like Professor George have for the rights and civil liberties guaranteed to all by the law. It also shows the harmful impact that the Christian right's notion of religious freedom has on gay and lesbian Americans and, by extension, on the values of our pluralistic and secular constitutional democracy.
JUSTICE SOTOMAYOR, with whom JUSTICE KAGAN and JUSTICE JACKSON join, dissenting.
Five years ago, this Court recognized the “general rule” that religious and philosophical objections to gay marriage “do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 584 U. S. ___, ___ (2018) (slip op., at 9). The Court also recognized the “serious stigma” that would result if “purveyors of goods and services who object to gay marriages for moral and religious reasons” were “allowed to put up signs saying ‘no goods or services will be sold if they will be used for gay marriages.’” Id., at ___ (slip op., at 12).
Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class. Specifically, the Court holds that the First Amendment exempts a website-design company from a state law that prohibits the company from denying wedding websites to same-sex couples if the company chooses to sell those websites to the public. The Court also holds that the company has a right to post a notice that says, “‘no [wedding websites] will be sold if they will be used for gay marriages.’”
“What a difference five years makes.” Carson v. Makin, 596 U. S. ___, ___ (2022) (SOTOMAYOR, J., dissenting) (slipop., at 5). And not just at the Court. Around the country, there has been a backlash to the movement for liberty and equality for gender and sexual minorities. New forms of inclusion have been met with reactionary exclusion. This is heartbreaking. Sadly, it is also familiar. When the civil rights and women’s rights movements sought equality in public life, some public establishments refused. Some even claimed, based on sincere religious beliefs, constitutional rights to discriminate. The brave Justices who once sat on this Court decisively rejected those claims.
Now the Court faces a similar test. A business open to the public seeks to deny gay and lesbian customers the full and equal enjoyment of its services based on the owner’s religious belief that same-sex marriages are “false.” The business argues, and a majority of the Court agrees, that because the business offers services that are customized and expressive, the Free Speech Clause of the First Amendment shields the business from a generally applicable law that prohibits discrimination in the sale of publicly available goods and services. That is wrong. Profoundly wrong. As I will explain, the law in question targets conduct, not speech, for regulation, and the act of discrimination has never constituted protected expression under the First Amendment. Our Constitution contains no right to refuse service to a disfavored group. I dissent.
/ / /
Today is a sad day in American constitutional law and in the lives of LGBT people. The Supreme Court of the United States declares that a particular kind of business, though open to the public, has a constitutional right to refuse to serve members of a protected class. The Court does so for the first time in its history. By issuing this new license to discriminate in a case brought by a company that seeks to deny same-sex couples the full and equal enjoyment of its services, the immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status. In this way, the decision itself inflicts a kind of stigmatic harm, on top of any harm caused by denials of service. The opinion of the Court is, quite literally, a notice that reads: “Some services may be denied to same-sex couples.”
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This case cannot be understood outside of the context in which it arises. In that context, the outcome is even more distressing. The LGBT rights movement has made historic strides, and I am proud of the role this Court recently played in that history. Today, however, we are taking steps backward. A slew of anti-LGBT laws have been passed in some parts of the country,15 raising the specter of a “bare . . . desire to harm a politically unpopular group.” Romer, 517 U. S., at 634 (internal quotation marks omitted). This is especially unnerving when “for centuries there have been powerful voices to condemn” this small minority. Lawrence v. Texas, 539 U. S. 558, 571 (2003). In this pivotal moment, the Court had an opportunity to reaffirm its commitment to equality on behalf of all members of society, including LGBT people. It does not do so.
Although the consequences of today’s decision might be most pressing for the LGBT community, the decision’s logic cannot be limited to discrimination on the basis of sexual orientation or gender identity. The decision threatens to balkanize the market and to allow the exclusion of other groups from many services. A website designer could equally refuse to create a wedding website for an interracial couple, for example. How quickly we forget that opposition to interracial marriage was often because “‘Almighty God . . . did not intend for the races to mix.’” Loving v. Virginia, 388 U. S. 1, 3 (1967). Yet the reason for discrimination need not even be religious, as this case arises under the Free Speech Clause. A stationer could refuse to sell a birth announcement for a disabled couple because she opposes their having a child. A large retail store could reserve its family portrait services for “traditional” families. And so on.16
Wedding websites, birth announcements, family portraits, epitaphs. These are not just words and images. They are the most profound moments in a human’s life. They are the moments that give that life personal and cultural meaning. You already heard the story of Bob and Jack, the elderly gay couple forced to find a funeral home more than an hour away. Supra, at 5–6, and n. 4. Now hear the story of Cynthia and Sherry, a lesbian couple of 13 years until Cynthia died from cancer at age 35. When Cynthia was diagnosed, she drew up a will, which authorized Sherry to make burial arrangements. Cynthia had asked Sherry to include an inscription on her headstone, listing the relationships that were important to her, for example, “daughter, granddaughter, sister, and aunt.” After Cynthia died, the cemetery was willing to include those words, but not the words that described Cynthia’s relationship to Sherry: “‘beloved life partner.’” N. Knauer, Gay and Lesbian Elders 102 (2011). There are many such stories, too many to tell here. And after today, too many to come.
I fear that the symbolic damage of the Court’s opinion is done. But that does not mean that we are powerless in the face of the decision. The meaning of our Constitution is found not in any law volume, but in the spirit of the people who live under it. Every business owner in America has a choice whether to live out the values in the Constitution. Make no mistake: Invidious discrimination is not one of them. “[D]iscrimination in any form and in any degree has no justifiable part whatever in our democratic way of life.” Korematsu v. United States, 323 U. S. 214, 242 (1944) (Murphy, J., dissenting). “It is unattractive in any setting but itis utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States.” Ibid.
The unattractive lesson of the majority opinion is this: What’s mine is mine, and what’s yours is yours. The lesson of the history of public accommodations laws is altogether different. It is that in a free and democratic society, there can be no social castes. And for that to be true, it must be true in the public market. For the “promise of freedom” is an empty one if the Government is “powerless to assure that a dollar in the hands of [one person] will purchase the same thing as a dollar in the hands of a[nother].” Jones v. Alfred H. Mayer Co., 392 U. S. 409, 443 (1968). Because the Court today retreats from that promise, I dissent.
When the dissent in 303 Creative LLC v. Elenis wrote of "a backlash to the movement for liberty and equality for gender and sexual minorities," the activism of Professor George and his allies on the Christian right was what they had in mind.
The joint dissent of Justices Sotomayor, Kagan and Jackson in 303 Creative LLC v. Elenis describes exactly how little respect right wing Christian activists like Professor George have for the rights and civil liberties guaranteed to all by the law. It also shows the harmful impact that the Christian right's notion of religious freedom has on gay and lesbian Americans and, by extension, on the values of our pluralistic and secular constitutional democracy.
What follow are the opening and closing paragraphs of the dissent. The entire opinion can be found at: https://www.scotusblog.com/case-files/cases/303-creative-llc-v-elenis/
JUSTICE SOTOMAYOR, with whom JUSTICE KAGAN and JUSTICE JACKSON join, dissenting.
Five years ago, this Court recognized the “general rule” that religious and philosophical objections to gay marriage “do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 584 U. S. ___, ___ (2018) (slip op., at 9). The Court also recognized the “serious stigma” that would result if “purveyors of goods and services who object to gay marriages for moral and religious reasons” were “allowed to put up signs saying ‘no goods or services will be sold if they will be used for gay marriages.’” Id., at ___ (slip op., at 12).
Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class. Specifically, the Court holds that the First Amendment exempts a website-design company from a state law that prohibits the company from denying wedding websites to same-sex couples if the company chooses to sell those websites to the public. The Court also holds that the company has a right to post a notice that says, “‘no [wedding websites] will be sold if they will be used for gay marriages.’”
“What a difference five years makes.” Carson v. Makin, 596 U. S. ___, ___ (2022) (SOTOMAYOR, J., dissenting) (slipop., at 5). And not just at the Court. Around the country, there has been a backlash to the movement for liberty and equality for gender and sexual minorities. New forms of inclusion have been met with reactionary exclusion. This is heartbreaking. Sadly, it is also familiar. When the civil rights and women’s rights movements sought equality in public life, some public establishments refused. Some even claimed, based on sincere religious beliefs, constitutional rights to discriminate. The brave Justices who once sat on this Court decisively rejected those claims.
Now the Court faces a similar test. A business open to the public seeks to deny gay and lesbian customers the full and equal enjoyment of its services based on the owner’s religious belief that same-sex marriages are “false.” The business argues, and a majority of the Court agrees, that because the business offers services that are customized and expressive, the Free Speech Clause of the First Amendment shields the business from a generally applicable law that prohibits discrimination in the sale of publicly available goods and services. That is wrong. Profoundly wrong. As I will explain, the law in question targets conduct, not speech, for regulation, and the act of discrimination has never constituted protected expression under the First Amendment. Our Constitution contains no right to refuse service to a disfavored group. I dissent.
/ / /
Today is a sad day in American constitutional law and in the lives of LGBT people. The Supreme Court of the United States declares that a particular kind of business, though open to the public, has a constitutional right to refuse to serve members of a protected class. The Court does so for the first time in its history. By issuing this new license to discriminate in a case brought by a company that seeks to deny same-sex couples the full and equal enjoyment of its services, the immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status. In this way, the decision itself inflicts a kind of stigmatic harm, on top of any harm caused by denials of service. The opinion of the Court is, quite literally, a notice that reads: “Some services may be denied to same-sex couples.”
/ / /
This case cannot be understood outside of the context in which it arises. In that context, the outcome is even more distressing. The LGBT rights movement has made historic strides, and I am proud of the role this Court recently played in that history. Today, however, we are taking steps backward. A slew of anti-LGBT laws have been passed in some parts of the country,15 raising the specter of a “bare . . . desire to harm a politically unpopular group.” Romer, 517 U. S., at 634 (internal quotation marks omitted). This is especially unnerving when “for centuries there have been powerful voices to condemn” this small minority. Lawrence v. Texas, 539 U. S. 558, 571 (2003). In this pivotal moment, the Court had an opportunity to reaffirm its commitment to equality on behalf of all members of society, including LGBT people. It does not do so.
Although the consequences of today’s decision might be most pressing for the LGBT community, the decision’s logic cannot be limited to discrimination on the basis of sexual orientation or gender identity. The decision threatens to balkanize the market and to allow the exclusion of other groups from many services. A website designer could equally refuse to create a wedding website for an interracial couple, for example. How quickly we forget that opposition to interracial marriage was often because “‘Almighty God . . . did not intend for the races to mix.’” Loving v. Virginia, 388 U. S. 1, 3 (1967). Yet the reason for discrimination need not even be religious, as this case arises under the Free Speech Clause. A stationer could refuse to sell a birth announcement for a disabled couple because she opposes their having a child. A large retail store could reserve its family portrait services for “traditional” families. And so on.16
Wedding websites, birth announcements, family portraits, epitaphs. These are not just words and images. They are the most profound moments in a human’s life. They are the moments that give that life personal and cultural meaning. You already heard the story of Bob and Jack, the elderly gay couple forced to find a funeral home more than an hour away. Supra, at 5–6, and n. 4. Now hear the story of Cynthia and Sherry, a lesbian couple of 13 years until Cynthia died from cancer at age 35. When Cynthia was diagnosed, she drew up a will, which authorized Sherry to make burial arrangements. Cynthia had asked Sherry to include an inscription on her headstone, listing the relationships that were important to her, for example, “daughter, granddaughter, sister, and aunt.” After Cynthia died, the cemetery was willing to include those words, but not the words that described Cynthia’s relationship to Sherry: “‘beloved life partner.’” N. Knauer, Gay and Lesbian Elders 102 (2011). There are many such stories, too many to tell here. And after today, too many to come.
I fear that the symbolic damage of the Court’s opinion is done. But that does not mean that we are powerless in the face of the decision. The meaning of our Constitution is found not in any law volume, but in the spirit of the people who live under it. Every business owner in America has a choice whether to live out the values in the Constitution. Make no mistake: Invidious discrimination is not one of them. “[D]iscrimination in any form and in any degree has no justifiable part whatever in our democratic way of life.” Korematsu v. United States, 323 U. S. 214, 242 (1944) (Murphy, J., dissenting). “It is unattractive in any setting but itis utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States.” Ibid.
The unattractive lesson of the majority opinion is this: What’s mine is mine, and what’s yours is yours. The lesson of the history of public accommodations laws is altogether different. It is that in a free and democratic society, there can be no social castes. And for that to be true, it must be true in the public market. For the “promise of freedom” is an empty one if the Government is “powerless to assure that a dollar in the hands of [one person] will purchase the same thing as a dollar in the hands of a[nother].” Jones v. Alfred H. Mayer Co., 392 U. S. 409, 443 (1968). Because the Court today retreats from that promise, I dissent.
[1] George, Robert P. "Championing Religious Freedom: ‘We Must Preserve Our Unity’ Going Beyond Political Disputes." National Catholic Register. 4 November 2023. https://www.ncregister.com/commentaries/championing-religious-freedom-rfi-address-2023