CTC Analyzing a Supreme Court Decision Discussion

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Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
United States Reports. Readers are requested to notify the Reporter of
Decisions, Supreme Court of the United States, Washington, D. C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.
SUPREME COURT OF THE UNITED STATES
_________________
No. 21–476
_________________
303 CREATIVE LLC, ET AL., PETITIONERS v.
AUBREY ELENIS, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
[June 30, 2023]
JUSTICE GORSUCH delivered the opinion of the Court.
Like many States, Colorado has a law forbidding businesses from engaging in discrimination when they sell
goods and services to the public. Laws along these lines
have done much to secure the civil rights of all Americans.
But in this particular case Colorado does not just seek to
ensure the sale of goods or services on equal terms. It seeks
to use its law to compel an individual to create speech she
does not believe. The question we face is whether that
course violates the Free Speech Clause of the First Amendment.
I
A
Through her business, 303 Creative LLC, Lorie Smith offers website and graphic design, marketing advice, and social media management services. Recently, she decided to
expand her offerings to include services for couples seeking
websites for their weddings. As she envisions it, her websites will provide couples with text, graphic arts, and videos
to “celebrate” and “conve[y ]” the “details” of their “unique
love story.” App. to Pet. for Cert. 182a, 187a, 198a. The
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websites will discuss how the couple met, explain their
backgrounds, families, and future plans, and provide information about their upcoming wedding. All of the text and
graphics on these websites will be “original,” “customized,”
and “tailored” creations. Id., at 187a. The websites will be
“expressive in nature,” designed “to communicate a particular message.” Id., at 181a. Viewers will know, too, “that
the websites are [Ms. Smith’s] original artwork,” for the
name of the company she owns and operates by herself will
be displayed on every one. Id., at 187a.
While Ms. Smith has laid the groundwork for her new
venture, she has yet to carry out her plans. She worries
that, if she does so, Colorado will force her to express views
with which she disagrees. Ms. Smith provides her website
and graphic services to customers regardless of their race,
creed, sex, or sexual orientation. Id., at 184a. But she has
never created expressions that contradict her own views for
anyone—whether that means generating works that encourage violence, demean another person, or defy her religious beliefs by, say, promoting atheism. See ibid.; see also
Tr. of Oral Arg. 19–20. Ms. Smith does not wish to do otherwise now, but she worries Colorado has different plans.
Specifically, she worries that, if she enters the wedding
website business, the State will force her to convey messages inconsistent with her belief that marriage should be
reserved to unions between one man and one woman. App.
to Pet. for Cert. 177a–190a. Ms. Smith acknowledges that
her views about marriage may not be popular in all quarters. But, she asserts, the First Amendment’s Free Speech
Clause protects her from being compelled to speak what she
does not believe. The Constitution, she insists, protects her
right to differ.
B
To clarify her rights, Ms. Smith filed a lawsuit in federal
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Opinion of the Court
district court. In that suit, she sought an injunction to prevent the State from forcing her to create wedding websites
celebrating marriages that defy her beliefs. App. 303–305.
To secure relief, Ms. Smith first had to establish her standing to sue. That required her to show “a credible threat”
existed that Colorado would, in fact, seek to compel speech
from her that she did not wish to produce. Susan B. Anthony List v. Driehaus, 573 U. S. 149, 159 (2014).
Toward that end, Ms. Smith began by directing the court
to the Colorado Anti-Discrimination Act (CADA). That law
defines a “public accommodation” broadly to include almost
every public-facing business in the State. Colo. Rev. Stat.
§24–34–601(1) (2022). In what some call its “Accommodation Clause,” the law prohibits a public accommodation
from denying “the full and equal enjoyment” of its goods and
services to any customer based on his race, creed, disability,
sexual orientation, or other statutorily enumerated trait.
§24–34–601(2)(a). Either state officials or private citizens
may bring actions to enforce the law. §§24–34–306, 24–34–
602(1). And a variety of penalties can follow. Courts can
order fines up to $500 per violation. §24–34–602(1)(a). The
Colorado Commission on Civil Rights can issue cease-anddesist orders, §24–34–306(9), and require violators to take
various other “affirmative action[s].” §24–34–605; §24–34–
306(9). In the past, these have included participation in
mandatory educational programs and the submission of ongoing compliance reports to state officials. See Masterpiece
Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 584 U. S.
___, ___ (2018) (slip op., at 8).1
——————
1 In addition to the Accommodation Clause, CADA contains a “Communication Clause” that prohibits a public accommodation from “publish[ing] . . . any written . . . communication” indicating that a person will
be denied “the full and equal enjoyment” of services or that he will be
“unwelcome, objectionable, unacceptable, or undesirable” based on a pro-
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In her lawsuit, Ms. Smith alleged that, if she enters the
wedding website business to celebrate marriages she does
endorse, she faces a credible threat that Colorado will seek
to use CADA to compel her to create websites celebrating
marriages she does not endorse. 6 F. 4th 1160, 1173–1174
(CA10 2021). As evidence, Ms. Smith pointed to Colorado’s
record of past enforcement actions under CADA, including
one that worked its way to this Court five years ago. See
Masterpiece Cakeshop, 584 U. S., at ___ (slip op., at 9); see
also App. 25–155 (discussing Colorado’s other past enforcement actions).
To facilitate the district court’s resolution of the merits of
her case, Ms. Smith and the State stipulated to a number
of facts:
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Ms. Smith is “willing to work with all people regardless of classifications such as race, creed, sexual orientation, and gender,” and she “will gladly create
custom graphics and websites” for clients of any sexual orientation. App. to Pet. for Cert. 184a.
She will not produce content that “contradicts biblical truth” regardless of who orders it. Ibid.
Her belief that marriage is a union between one man
and one woman is a sincerely held religious conviction. Id., at 179a.
All of the graphic and website design services Ms.
Smith provides are “expressive.” Id., at 181a.
The websites and graphics Ms. Smith designs are
“original, customized” creations that “contribut[e] to
the overall messages” her business conveys “through
the websites” it creates. Id., at 181a–182a.
——————
tected classification. Colo. Rev. Stat. §24–34–601(2)(a) (2022). The Communication Clause, Ms. Smith notes, prohibits any speech inconsistent
with the Accommodation Clause. Because Colorado concedes that its authority to apply the Communication Clause to Ms. Smith stands or falls
with its authority to apply the Accommodation Clause, see Brief for Respondents 44–45, we focus our attention on the Accommodation Clause.
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
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Just like the other services she provides, the wedding websites Ms. Smith plans to create “will be expressive in nature.” Id., at 187a.
Those wedding websites will be “customized and tailored” through close collaboration with individual
couples, and they will “express Ms. Smith’s and 303
Creative’s message celebrating and promoting” her
view of marriage. Id., at 186a–187a.
Viewers of Ms. Smith’s websites “will know that the
websites are [Ms. Smith’s and 303 Creative’s] original artwork.” Id., at 187a.
To the extent Ms. Smith may not be able to provide
certain services to a potential customer, “[t]here are
numerous companies in the State of Colorado and
across the nation that offer custom website design
services.” Id., at 190a.
C
Ultimately, the district court ruled against Ms. Smith.
405 F. Supp. 3d 907, 912 (Colo. 2019). So did the Tenth
Circuit. 6 F. 4th, at 1168. For its part, the Tenth Circuit
held that Ms. Smith had standing to sue. In that court’s
judgment, she had established a credible threat that, if she
follows through on her plans to offer wedding website services, Colorado will invoke CADA to force her to create
speech she does not believe or endorse. Id., at 1172–1175.
The court pointed to the fact that “Colorado has a history of
past enforcement against nearly identical conduct—i.e.,
Masterpiece Cakeshop”; that anyone in the State may file a
complaint against Ms. Smith and initiate “a potentially
burdensome administrative hearing” process; and that
“Colorado [has] decline[d] to disavow future enforcement”
proceedings against her. Id., at 1174. Before us, no party
challenges these conclusions.
Turning to the merits, however, the Tenth Circuit held
that Ms. Smith was not entitled to the injunction she
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sought. The court acknowledged that Ms. Smith’s planned
wedding websites qualify as “pure speech” protected by the
First Amendment. Id., at 1176. As a result, the court reasoned, Colorado had to satisfy “strict scrutiny” before compelling speech from her that she did not wish to create. Id.,
at 1178. Under that standard, the court continued, the
State had to show both that forcing Ms. Smith to create
speech would serve a compelling governmental interest and
that no less restrictive alternative exists to secure that interest. Ibid. Ultimately, a divided panel concluded that the
State had carried these burdens. As the majority saw it,
Colorado has a compelling interest in ensuring “equal access to publicly available goods and services,” and no option
short of coercing speech from Ms. Smith can satisfy that interest because she plans to offer “unique services” that are,
“by definition, unavailable elsewhere.” Id., at 1179–1180
(internal quotation marks omitted).
Chief Judge Tymkovich dissented. He observed that “ensuring access to a particular person’s” voice, expression, or
artistic talent has never qualified as “a compelling state interest” under this Court’s precedents. Id., at 1203. Nor, he
submitted, should courts depart from those precedents now.
“Taken to its logical end,” Chief Judge Tymkovich warned,
his colleagues’ approach would permit the government to
“regulate the messages communicated by all artists”—a result he called “unprecedented.” Id., at 1204.
We granted certiorari to review the Tenth Circuit’s disposition. 595 U. S. ___ (2022).
II
The framers designed the Free Speech Clause of the First
Amendment to protect the “freedom to think as you will and
to speak as you think.” Boy Scouts of America v. Dale, 530
U. S. 640, 660–661 (2000) (internal quotation marks omitted). They did so because they saw the freedom of speech
“both as an end and as a means.” Whitney v. California,
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274 U. S. 357, 375 (1927) (Brandeis, J., concurring); see also
12 The Papers of James Madison 193–194 (C. Hobson & R.
Rutland eds. 1979). An end because the freedom to think
and speak is among our inalienable human rights. See, e.g.,
4 Annals of Cong. 934 (1794) (Rep. Madison). A means because the freedom of thought and speech is “indispensable
to the discovery and spread of political truth.” Whitney, 274
U. S., at 375 (Brandeis, J., concurring). By allowing all
views to flourish, the framers understood, we may test and
improve our own thinking both as individuals and as a Nation. For all these reasons, “[i]f there is any fixed star in
our constitutional constellation,” West Virginia Bd. of Ed.
v. Barnette, 319 U. S. 624, 642 (1943), it is the principle that
the government may not interfere with “an uninhibited
marketplace of ideas,” McCullen v. Coakley, 573 U. S. 464,
476 (2014) (internal quotation marks omitted).
From time to time, governments in this country have
sought to test these foundational principles. In Barnette,
for example, the Court faced an effort by the State of West
Virginia to force schoolchildren to salute the Nation’s flag
and recite the Pledge of Allegiance. If the students refused,
the State threatened to expel them and fine or jail their parents. Some families objected on the ground that the State
sought to compel their children to express views at odds
with their faith as Jehovah’s Witnesses. When the dispute
arrived here, this Court offered a firm response. In seeking
to compel students to salute the flag and recite a pledge, the
Court held, state authorities had “transcend[ed] constitutional limitations on their powers.” 319 U. S., at 642. Their
dictates “invade[d] the sphere of intellect and spirit which
it is the purpose of the First Amendment . . . to reserve from
all official control.” Ibid.
A similar story unfolded in Hurley v. Irish-American Gay,
Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557
(1995). There, veterans organizing a St. Patrick’s Day parade in Boston refused to include a group of gay, lesbian,
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and bisexual individuals in their event. The group argued
that Massachusetts’s public accommodations statute entitled it to participate in the parade as a matter of law. Id.,
at 560–561. Lower courts agreed. Id., at 561–566. But this
Court reversed. Id., at 581. Whatever state law may demand, this Court explained, the parade was constitutionally protected speech and requiring the veterans to include
voices they wished to exclude would impermissibly require
them to “alter the expressive content of their parade.” Id.,
at 572–573. The veterans’ choice of what to say (and not
say) might have been unpopular, but they had a First
Amendment right to present their message undiluted by
views they did not share.
Then there is Boy Scouts of America v. Dale. In that case,
the Boy Scouts excluded James Dale, an assistant scoutmaster, from membership after learning he was gay. Mr.
Dale argued that New Jersey’s public accommodations law
required the Scouts to reinstate him. 530 U. S., at 644–645.
The New Jersey Supreme Court sided with Mr. Dale, id., at
646–647, but again this Court reversed, id., at 661. The
decision to exclude Mr. Dale may not have implicated pure
speech, but this Court held that the Boy Scouts “is an expressive association” entitled to First Amendment protection. Id., at 656. And, the Court found, forcing the Scouts
to include Mr. Dale would “interfere with [its] choice not to
propound a point of view contrary to its beliefs.” Id., at 654.
As these cases illustrate, the First Amendment protects
an individual’s right to speak his mind regardless of
whether the government considers his speech sensible and
well intentioned or deeply “misguided,” Hurley, 515 U. S.,
at 574, and likely to cause “anguish” or “incalculable grief,”
Snyder v. Phelps, 562 U. S. 443, 456 (2011). Equally, the
First Amendment protects acts of expressive association.
See, e.g., Dale, 530 U. S., at 647–656; Hurley, 515 U. S., at
568–570, 579. Generally, too, the government may not compel a person to speak its own preferred messages. See
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Tinker v. Des Moines Independent Community School Dist.,
393 U. S. 503, 505–506 (1969); see also, e.g., Miami Herald
Publishing Co. v. Tornillo, 418 U. S. 241, 256 (1974); Wooley
v. Maynard, 430 U. S. 705, 714 (1977); National Institute of
Family and Life Advocates v. Becerra, 585 U. S. ___, ___
(2018) (NIFLA) (slip op., at 8). Nor does it matter whether
the government seeks to compel a person to speak its message when he would prefer to remain silent or to force an
individual to include other ideas with his own speech that
he would prefer not to include. See Hurley, 515 U. S., at
568–570, 576; see also Rumsfeld v. Forum for Academic &
Institutional Rights, Inc., 547 U. S. 47, 63–64 (2006) (FAIR)
(discussing cases). All that offends the First Amendment
just the same.
III
Applying these principles to this case, we align ourselves
with much of the Tenth Circuit’s analysis. The Tenth Circuit held that the wedding websites Ms. Smith seeks to create qualify as “pure speech” under this Court’s precedents.
6 F. 4th, at 1176. We agree. It is a conclusion that flows
directly from the parties’ stipulations. They have stipulated that Ms. Smith’s websites promise to contain “images,
words, symbols, and other modes of expression.” App. to
Pet. for Cert. 181a. They have stipulated that every website
will be her “original, customized” creation. Id., at 181a–
182a. And they have stipulated that Ms. Smith will create
these websites to communicate ideas—namely, to “celebrate and promote the couple’s wedding and unique love
story” and to “celebrat[e] and promot[e]” what Ms. Smith
understands to be a true marriage. Id., at 186a–187a.
A hundred years ago, Ms. Smith might have furnished
her services using pen and paper. Those services are no less
protected speech today because they are conveyed with a
“voice that resonates farther than it could from any soapbox.” Reno v. American Civil Liberties Union, 521 U. S. 844,
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870 (1997). All manner of speech—from “pictures, films,
paintings, drawings, and engravings,” to “oral utterance
and the printed word”—qualify for the First Amendment’s
protections; no less can hold true when it comes to speech
like Ms. Smith’s conveyed over the Internet. Kaplan v. California, 413 U. S. 115, 119–120 (1973); see also Shurtleff v.
Boston, 596 U. S. ___, ___–___ (2022) (slip op., at 7–8)
(flags); Brown v. Entertainment Merchants Assn., 564 U. S.
786, 790 (2011) (video games); Hurley, 515 U. S., at 568–
570 (parades); Ward v. Rock Against Racism, 491 U. S. 781,
790 (1989) (music); Joseph Burstyn, Inc. v. Wilson, 343 U. S.
495, 501–502 (1952) (movies).
We further agree with the Tenth Circuit that the wedding
websites Ms. Smith seeks to create involve her speech. 6
F. 4th, at 1181, and n. 5. Again, the parties’ stipulations
lead the way to that conclusion. See App. to Pet. for Cert.
181a, 187a. As the parties have described it, Ms. Smith intends to “ve[t]” each prospective project to determine
whether it is one she is willing to endorse. Id., at 185a. She
will consult with clients to discuss “their unique stories as
source material.” Id., at 186a. And she will produce a final
story for each couple using her own words and her own
“original artwork.” Id., at 182a–183a. Of course, Ms.
Smith’s speech may combine with the couple’s in the final
product. But for purposes of the First Amendment that
changes nothing. An individual “does not forfeit constitutional protection simply by combining multifarious voices”
in a single communication. Hurley, 515 U. S., at 569.
As surely as Ms. Smith seeks to engage in protected First
Amendment speech, Colorado seeks to compel speech Ms.
Smith does not wish to provide. As the Tenth Circuit observed, if Ms. Smith offers wedding websites celebrating
marriages she endorses, the State intends to “forc[e her] to
create custom websites” celebrating other marriages she
does not. 6 F. 4th, at 1178. Colorado seeks to compel this
speech in order to “excis[e] certain ideas or viewpoints from
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the public dialogue.” Turner Broadcasting System, Inc. v.
FCC, 512 U. S. 633, 642 (1994). Indeed, the Tenth Circuit
recognized that the coercive “[e]liminati[on]” of dissenting
“ideas” about marriage constitutes Colorado’s “very purpose” in seeking to apply its law to Ms. Smith. 6 F. 4th, at
1178.
We part ways with the Tenth Circuit only when it comes
to the legal conclusions that follow. While that court
thought Colorado could compel speech from Ms. Smith consistent with the Constitution, our First Amendment precedents laid out above teach otherwise. In Hurley, the Court
found that Massachusetts impermissibly compelled speech
in violation of the First Amendment when it sought to force
parade organizers to accept participants who would “affec[t]
the[ir] message.” 515 U. S., at 572. In Dale, the Court held
that New Jersey intruded on the Boy Scouts’ First Amendment rights when it tried to require the group to “propound
a point of view contrary to its beliefs” by directing its membership choices. 530 U. S., at 654. And in Barnette, this
Court found impermissible coercion when West Virginia required schoolchildren to recite a pledge that contravened
their convictions on threat of punishment or expulsion. 319
U. S., at 626–629. Here, Colorado seeks to put Ms. Smith
to a similar choice: If she wishes to speak, she must either
speak as the State demands or face sanctions for expressing
her own beliefs, sanctions that may include compulsory participation in “remedial . . . training,” filing periodic compliance reports as officials deem necessary, and paying monetary fines. App. 120; supra, at 3. Under our precedents,
that “is enough,” more than enough, to represent an impermissible abridgment of the First Amendment’s right to
speak freely. Hurley, 515 U. S., at 574.
Consider what a contrary approach would mean. Under
Colorado’s logic, the government may compel anyone who
speaks for pay on a given topic to accept all commissions on
that same topic—no matter the underlying message—if the
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topic somehow implicates a customer’s statutorily protected
trait. 6 F. 4th, at 1198 (Tymkovich, C. J., dissenting).
Taken seriously, that principle would allow the government
to force all manner of artists, speechwriters, and others
whose services involve speech to speak what they do not believe on pain of penalty. The government could require “an
unwilling Muslim movie director to make a film with a Zionist message,” or “an atheist muralist to accept a commission celebrating Evangelical zeal,” so long as they would
make films or murals for other members of the public with
different messages. Id., at 1199. Equally, the government
could force a male website designer married to another man
to design websites for an organization that advocates
against same-sex marriage. See Brief for Petitioners 26–
27. Countless other creative professionals, too, could be
forced to choose between remaining silent, producing
speech that violates their beliefs, or speaking their minds
and incurring sanctions for doing so. See, e.g., Brief for Creative Professionals et al. as Amici Curiae 5–10; Brief for
First Amendment Scholars as Amici Curiae 19–22. As our
precedents recognize, the First Amendment tolerates none
of that.
In saying this much, we do not question the vital role public accommodations laws play in realizing the civil rights of
all Americans. This Court has recognized that governments in this country have a “compelling interest” in eliminating discrimination in places of public accommodation.
Roberts v. United States Jaycees, 468 U. S. 609, 628 (1984);
see also Hurley, 515 U. S., at 571–572. This Court has recognized, too, that public accommodations laws “vindicate
the deprivation of personal dignity that surely accompanies
denials of equal access to public establishments.” Heart of
Atlanta Motel, Inc. v. United States, 379 U. S. 241, 250
(1964) (internal quotation marks omitted); see also, e.g.,
Katzenbach v. McClung, 379 U. S. 294 (1964); Newman v.
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Piggie Park Enterprises, Inc., 390 U. S. 400 (1968) (per curiam).
Over time, governments in this country have expanded
public accommodations laws in notable ways too. Statutes
like Colorado’s grow from nondiscrimination rules the common law sometimes imposed on common carriers and places
of traditional public accommodation like hotels and restaurants. Dale, 530 U. S., at 656–657. Often, these enterprises
exercised something like monopoly power or hosted or
transported others or their belongings much like bailees.
See, e.g., Liverpool & Great Western Steam Co. v. Phenix
Ins. Co., 129 U. S. 397, 437 (1889); Primrose v. Western Union Telegraph Co., 154 U. S. 1, 14 (1894). Over time, some
States, Colorado included, have expanded the reach of these
nondiscrimination rules to cover virtually every place of
business engaged in any sales to the public. Compare 1885
Colo. Sess. Laws pp. 132–133 (a short list of entities originally bound by the State’s public accommodations law) with
Colo. Rev. Stat. §24–34–601(1) (currently defining a public
accommodation to include “any place of business engaged
in any sales to the public”).
Importantly, States have also expanded their laws to prohibit more forms of discrimination. Today, for example, approximately half the States have laws like Colorado’s that
expressly prohibit discrimination on the basis of sexual orientation.2 And, as we have recognized, this is entirely “unexceptional.” Masterpiece Cakeshop, 584 U. S., at ___ (slip
——————
2 Besides Colorado, this includes Cal. Civ. Code Ann. §51 (West 2020);
Conn. Gen. Stat. §46a–81d (2021); Del. Code Ann., Tit. 6, §4504 (2019);
Haw. Rev. Stat. §489–3 (Cum. Supp. 2021); Ill. Comp. Stat., ch. 775,
§5/1–102 (West 2021); Iowa Code §216.7 (2022); Me. Rev. Stat. Ann.,
Tit. 5, §4591 (2013); Md. State Govt. Code Ann. §20–304 (2021); Mass.
Gen. Laws, ch. 272, §98 (2021); Mich. Comp. Laws Ann. §37.2302 (West
2013); Minn. Stat. §363A.11 (2022); Nev. Rev. Stat. §651.070 (2017); N.
H. Rev. Stat. Ann. §354–A:17 (2022); N. J. Stat. Ann. §10:5–12 (West
2013); N. M. Stat. Ann. §28–1–7 (2022); N. Y. Exec. Law Ann. §291(2)
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op., at 10). States may “protect gay persons, just as [they]
can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms
and conditions as are offered to other members of the public. And there are no doubt innumerable goods and services
that no one could argue implicate the First Amendment.”
Ibid.; see also Hurley, 515 U. S., at 571–572; 6 F. 4th, at
1203 (Tymkovich, C. J., dissenting). Consistent with all of
this, Ms. Smith herself recognizes that Colorado and other
States are generally free to apply their public accommodations laws, including their provisions protecting gay persons, to a vast array of businesses. Reply Brief 15; see Tr.
of Oral Arg. 45–46.
At the same time, this Court has also recognized that no
public accommodations law is immune from the demands of
the Constitution. In particular, this Court has held, public
accommodations statutes can sweep too broadly when deployed to compel speech. In Hurley, the Court commented
favorably on Massachusetts’ public accommodations law,
but made plain it could not be “applied to expressive activity” to compel speech. 515 U. S., at 571, 578. In Dale, the
Court observed that New Jersey’s public accommodations
law had many lawful applications but held that it could “not
justify such a severe intrusion on the Boy Scouts’ rights to
freedom of expressive association.” 530 U. S., at 659. And,
once more, what was true in those cases must hold true
here. When a state public accommodations law and the
Constitution collide, there can be no question which must
prevail. U. S. Const., Art. VI, cl. 2.
Nor is it any answer, as the Tenth Circuit seemed to suppose, that Ms. Smith’s services are “unique.” 6 F. 4th, at
——————
(West 2019); Ore. Rev. Stat. §659A.403 (2021); R. I. Gen. Laws §11–24–
2 (2002); Vt. Stat. Ann., Tit. 9, §4502(a) (2020); Va. Code Ann. §2.2–3904
(2022); Wash. Rev. Code §49.60.215 (2022); Wis. Stat. §106.52 (2019–
2020). See also Brief for Local Governments et al. as Amici Curiae 5
(noting that many local governments have enacted similar rules).
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1180. In some sense, of course, her voice is unique; so is
everyone’s. But that hardly means a State may coopt an
individual’s voice for its own purposes. In Hurley, the veterans had an “enviable” outlet for speech; after all, their parade was a notable and singular event. 515 U. S., at 560,
577–578. In Dale, the Boy Scouts offered what some might
consider a unique experience. 530 U. S., at 649–650. But
in both cases this Court held that the State could not use
its public accommodations statute to deny speakers the
right “to choose the content of [their] own message[s].” Hurley, 515 U. S., at 573; see Dale, 530 U. S., at 650–656. Were
the rule otherwise, the better the artist, the finer the writer,
the more unique his talent, the more easily his voice could
be conscripted to disseminate the government’s preferred
messages. That would not respect the First Amendment;
more nearly, it would spell its demise.
IV
Before us, Colorado appears to distance itself from the
Tenth Circuit’s reasoning. Now, the State seems to
acknowledge that the First Amendment does forbid it from
coercing Ms. Smith to create websites endorsing same-sex
marriage or expressing any other message with which she
disagrees. See Brief for Respondents 12 (disclaiming any
interest in “interfer[ing] with [Ms. Smith’s] choice to offer
only websites of [her] own design”); see also Brief for United
States as Amicus Curiae 19 (conceding that “constitutional
concerns” would arise if Colorado “require[d] petitione[r] to
design a website” that she “would not create or convey for
any client”). Instead, Colorado devotes most of its efforts to
advancing an alternative theory for affirmance.
The State’s alternative theory runs this way. To comply
with Colorado law, the State says, all Ms. Smith must do is
repurpose websites she will create to celebrate marriages
she does endorse for marriages she does not. She sells a
product to some, the State reasons, so she must sell the
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Opinion of the Court
same product to all. Brief for Respondents 15, 20. At bottom, Colorado’s theory rests on a belief that the Tenth Circuit erred at the outset when it said this case implicates
pure speech. Id., at 19. Instead, Colorado says, this case
involves only the sale of an ordinary commercial product
and any burden on Ms. Smith’s speech is purely “incidental.” Id., at 18, 25–28; see Tr. of Oral Arg. 65, 97–98.
On the State’s telling, then, speech more or less vanishes
from the picture—and, with it, any need for First Amendment scrutiny. In places, the dissent seems to advance the
same line of argument. Post, at 29 (opinion of SOTOMAYOR,
J.).
This alternative theory, however, is difficult to square
with the parties’ stipulations. As we have seen, the State
has stipulated that Ms. Smith does not seek to sell an ordinary commercial good but intends to create “customized
and tailored” speech for each couple. App. to Pet. for Cert.
181a, 187a. The State has stipulated that “[e]ach website
303 Creative designs and creates is an original, customized
creation for each client.” Id., at 181a. The State has stipulated, too, that Ms. Smith’s wedding websites “will be expressive in nature, using text, graphics, and in some cases
videos to celebrate and promote the couple’s wedding and
unique love story.” Id., at 187a. As the case comes to us,
then, Colorado seeks to compel just the sort of speech that
it tacitly concedes lies beyond the reach of its powers.
Of course, as the State emphasizes, Ms. Smith offers her
speech for pay and does so through 303 Creative LLC, a
company in which she is “the sole member-owner.” Id., at
181a; see also post, at 33 (opinion of SOTOMAYOR, J.) (emphasizing Ms. Smith’s “commercial” activity). But none of
that makes a difference. Does anyone think a speechwriter
loses his First Amendment right to choose for whom he
works if he accepts money in return? Or that a visual artist
who accepts commissions from the public does the same?
Many of the world’s great works of literature and art were
Cite as: 600 U. S. ____ (2023)
17
Opinion of the Court
created with an expectation of compensation. Nor, this
Court has held, do speakers shed their First Amendment
protections by employing the corporate form to disseminate
their speech. This fact underlies our cases involving everything from movie producers to book publishers to newspapers. See, e.g., Joseph Burstyn, Inc., 343 U. S., at 497–503;
Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 114–116 (1991); Grosjean v. American Press Co., 297 U. S. 233, 240–241, 249 (1936).
Colorado next urges us to focus on the reason Ms. Smith
refuses to offer the speech it seeks to compel. She refuses,
the State insists, because she objects to the “protected characteristics” of certain customers. Brief for Respondents 16;
see also post, at 26–27, 31–32 (opinion of SOTOMAYOR, J.)
(reciting the same argument). But once more, the parties’
stipulations speak differently. The parties agree that Ms.
Smith “will gladly create custom graphics and websites for
gay, lesbian, or bisexual clients or for organizations run by
gay, lesbian, or bisexual persons so long as the custom
graphics and websites” do not violate her beliefs. App. to
Pet. for Cert. 184a. That is a condition, the parties
acknowledge, Ms. Smith applies to “all customers.” Ibid.
Ms. Smith stresses, too, that she has not and will not create
expressions that defy any of her beliefs for any customer,
whether that involves encouraging violence, demeaning another person, or promoting views inconsistent with her religious commitments. See Tr. of Oral Arg. 18–20. Nor, in
any event, do the First Amendment’s protections belong
only to speakers whose motives the government finds worthy; its protections belong to all, including to speakers
whose motives others may find misinformed or offensive.
See Federal Election Comm’n v. Wisconsin Right to Life,
Inc., 551 U. S. 449, 468–469 (2007) (opinion of ROBERTS,
C. J.) (observing that “a speaker’s motivation is entirely irrelevant” (internal quotation marks omitted)); National Socialist Party of America v. Skokie, 432 U. S. 43, 43–44
18
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Opinion of the Court
(1977) (per curiam) (upholding free-speech rights of participants in a Nazi parade); Snyder, 562 U. S., at 456–457
(same for protestors of a soldier’s funeral).3
Failing all else, Colorado suggests that this Court’s decision in FAIR supports affirmance. See also post, at 25–26
(opinion of SOTOMAYOR, J.) (making the same argument).
In FAIR, a group of schools challenged a law requiring
them, as a condition of accepting federal funds, to permit
military recruiters space on campus on equal terms with
other potential employers. 547 U. S., at 51–52, 58. The
only expressive activity required of the law schools, the
Court found, involved the posting of logistical notices along
these lines: “ ‘The U. S. Army recruiter will meet interested
students in Room 123 at 11 a.m.’ ” Id., at 61–62. And, the
Court reasoned, compelled speech of this sort was “incidental” and a “far cry” from the speech at issue in our “leading First Amendment precedents [that] have established
the principle that freedom of speech prohibits the government from telling people what they must say.” Ibid.; see
also NIFLA, 585 U. S., at ___ (slip op., at 8).
It is a far cry from this case too. To be sure, our cases
have held that the government may sometimes “requir[e]
——————
3 The dissent labels the distinction between status and message “amusing” and “embarrassing.” Post, at 32. But in doing so, the dissent ignores
a fundamental feature of the Free Speech Clause. While it does not protect status-based discrimination unrelated to expression, generally it
does protect a speaker’s right to control her own message—even when we
may disapprove of the speaker’s motive or the message itself. The dissent’s derision is no answer to any of this. It ignores, too, the fact that
Colorado itself has, in other contexts, distinguished status-based discrimination (forbidden) from the right of a speaker to control his own
message (protected). See App. 131, 137, 140, 143–144, 149, 152, 154.
(Truth be told, even the dissent acknowledges “th[is] distinction” elsewhere in its opinion. Post, at 31, n. 11.) Nor is the distinction unusual
in societies committed both to nondiscrimination rules and free expression. See, e.g., Lee v. Ashers Baking Co. Ltd., [2018] UKSC 49, p. 14 (“The
less favourable treatment was afforded to the message not to the man.”).
Does the dissent really find all that amusing and embarrassing?
Cite as: 600 U. S. ____ (2023)
19
Opinion of the Court
the dissemination of purely factual and uncontroversial information,” particularly in the context of “commercial advertising.” Hurley, 515 U. S., at 573 (internal quotation
marks omitted); see also NIFLA, 585 U. S., at ___ (slip op.,
at 8); Riley v. National Federation of Blind of N. C., Inc.,
487 U. S. 781, 795–796 (1988). But this case involves nothing like that. Here, Colorado does not seek to impose an
incidental burden on speech. It seeks to force an individual
to “utter what is not in [her] mind” about a question of political and religious significance. Barnette, 319 U. S., at
634. And that, FAIR reaffirmed, is something the First
Amendment does not tolerate. No government, FAIR recognized, may affect a “speaker’s message” by “forc[ing]” her
to “accommodate” other views, 547 U. S., at 63; no government may “ ‘alter’ ” the “ ‘expressive content’ ” of her message, id., at 63–64 (alteration omitted); and no government
may “interfer[e] with” her “desired message,” id., at 64.
V
It is difficult to read the dissent and conclude we are looking at the same case. Much of it focuses on the evolution of
public accommodations laws, post, at 7–13, and the strides
gay Americans have made towards securing equal justice
under law, post, at 14–17. And, no doubt, there is much to
applaud here. But none of this answers the question we
face today: Can a State force someone who provides her
own expressive services to abandon her conscience and
speak its preferred message instead?
When the dissent finally gets around to that question—
more than halfway into its opinion—it reimagines the facts
of this case from top to bottom. The dissent claims that Colorado wishes to regulate Ms. Smith’s “conduct,” not her
speech. Post, at 24–29. Forget Colorado’s stipulation that
Ms. Smith’s activities are “expressive,” App. to Pet. for Cert.
181a, and the Tenth Circuit’s conclusion that the State
20
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Opinion of the Court
seeks to compel “pure speech,” 6 F. 4th, at 1176. The dissent chides us for deciding a pre-enforcement challenge.
Post, at 23. But it ignores the Tenth Circuit’s finding that
Ms. Smith faces a credible threat of sanctions unless she
conforms her views to the State’s. 6 F. 4th, at 1172–1175.
The dissent suggests (over and over again) that any burden
on speech here is “incidental.” Post, at 24, 26–30, 32–33.
All despite the Tenth Circuit’s finding that Colorado intends to force Ms. Smith to convey a message she does not
believe with the “very purpose” of “[e]liminating . . . ideas”
that differ from its own. 6 F. 4th, at 1178.4
Nor does the dissent’s reimagination end there. It claims
that, “for the first time in its history,” the Court “grants a
business open to the public” a “right to refuse to serve members of a protected class.” Post, at 1; see also id., at 26, n. 10,
35. Never mind that we do no such thing and Colorado itself
has stipulated Ms. Smith will (as CADA requires) “work
with all people regardless of . . . sexual orientation.” App.
to Pet. for Cert. 184a. Never mind, too, that it is the dissent
that would have this Court do something truly novel by allowing a government to coerce an individual to speak contrary to her beliefs on a significant issue of personal conviction, all in order to eliminate ideas that differ from its own.
There is still more. The dissent asserts that we “sweep
under the rug petitioners’ challenge to CADA’s Communication Clause.” Post, at 26. This despite the fact the parties
and the Tenth Circuit recognized that Ms. Smith’s Communication Clause challenge hinges on her Accommodation
Clause challenge. (So much so that Colorado devoted less
than two pages at the tail end of its brief to the Communication Clause and the Tenth Circuit afforded it just three
——————
4 Perplexingly, too, the dissent suggests that, by recounting the Tenth
Circuit’s conclusion on this score, we “misunderstan[d] this case” and
“invo[ke] . . . Orwellian thought policing.” Post, at 34, n. 14.
Cite as: 600 U. S. ____ (2023)
21
Opinion of the Court
paragraphs in its free-speech analysis. See Brief for Respondents 44–45; 6 F. 4th, at 1182–1183.)5 The dissent
even suggests that our decision today is akin to endorsing a
“separate but equal” regime that would allow law firms to
refuse women admission into partnership, restaurants to
deny service to Black Americans, or businesses seeking employees to post something like a “White Applicants Only”
sign. Post, at 1, 16–21, 26, 28–29, 32, and n. 13, 37. Pure
fiction all.
In some places, the dissent gets so turned around about
the facts that it opens fire on its own position. For instance:
While stressing that a Colorado company cannot refuse “the
full and equal enjoyment of [its] services” based on a customer’s protected status, post, at 27, the dissent assures us
that a company selling creative services “to the public” does
have a right “to decide what messages to include or not to
include,” post, at 28. But if that is true, what are we even
debating?
Instead of addressing the parties’ stipulations about the
case actually before us, the dissent spends much of its time
adrift on a sea of hypotheticals about photographers, stationers, and others, asking if they too provide expressive
services covered by the First Amendment. Post, at 27–29,
31–32, 37. But those cases are not this case. Doubtless,
determining what qualifies as expressive activity protected
——————
5 Why does the dissent try to refocus this case around the Communication Clause? Perhaps because the moment one acknowledges the parties’
stipulations—and the fact Colorado seeks to use its Accommodation
Clause to compel speech in order to ensure conformity to its own views
on a topic of major significance—the First Amendment implications become obvious. As does the fact that our case is nothing like a typical
application of a public accommodations law requiring an ordinary, nonexpressive business to serve all customers or consider all applicants. Our
decision today does not concern—much less endorse—anything like the
“ ‘straight couples only’ ” notices the dissent conjures out of thin air. Post,
at 26, n. 10. Nor do the parties discuss anything of the sort in their stipulations.
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Opinion of the Court
by the First Amendment can sometimes raise difficult questions. But this case presents no complication of that kind.
The parties have stipulated that Ms. Smith seeks to engage
in expressive activity. And the Tenth Circuit has recognized her services involve “pure speech.” See supra, at 6, 9.
Nothing the dissent says can alter this—nor can it displace
the First Amendment protections that follow.
The dissent’s treatment of precedent parallels its handling of the facts. Take its remarkable suggestion that a
government forcing an individual to create speech on
weighty issues with which she disagrees—all, as the Tenth
Circuit found, with the goal of “[e]liminating” views it does
not share, 6 F. 4th, at 1178—only “incidental[ly]” burdens
First Amendment liberties. Post, at 26–35. Far from embracing a notion like that, our cases have rejected it time
after time—including in the context of public accommodations laws. See Parts II–IV, supra; FAIR, 547 U. S., at 61–
64 (no government may affect a “speaker’s own message” by
“forc[ing]” her to “accommodate” views she does not hold);
Hurley, 515 U. S., at 563, 566 (using a public accommodations law to compel parade organizers to include speech
they did not believe was no mere “ ‘incidental’ ” infringement on First Amendment rights); Dale, 530 U. S., at 659
(employing a public accommodations law to require the Boy
Scouts to alter their admissions policies had more than “an
incidental effect on protected speech”).6
——————
6 The dissent observes that public accommodations laws may sometimes touch on speech incidentally as they work to ensure ordinary, nonexpressive goods and services are sold on equal terms. Cf. post, at 24–27
(citing Sorrell v. IMS Health Inc., 564 U. S. 552 (2011); Rumsfeld v.
FAIR, 547 U. S. 47 (2006); United States v. O’Brien, 391 U. S. 367 (1968)).
But as Hurley observed, there is nothing “incidental” about an infringement on speech when a public accommodations law is applied “peculiar[ly]” to compel expressive activity. Hurley v. Irish-American Gay,
Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 572 (1995).
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23
Opinion of the Court
When it finally gets around to discussing these controlling precedents, the dissent offers a wholly unpersuasive
attempt to distinguish them. The First Amendment protections furnished in Barnette, Hurley, and Dale, the dissent
declares, were limited to schoolchildren and “nonprofit[s],”
and it is “dispiriting” to think they might also apply to Ms.
Smith’s “commercial” activity. Post, at 32–35. But our
precedents endorse nothing like the limits the dissent
would project on them. Instead, as we have seen, the First
Amendment extends to all persons engaged in expressive
conduct, including those who seek profit (such as
speechwriters, artists, and website designers). See supra,
at 16–17. If anything is truly dispiriting here, it is the dissent’s failure to take seriously this Court’s enduring commitment to protecting the speech rights of all comers, no
matter how controversial—or even repugnant—many may
find the message at hand.
Finally, the dissent comes out and says what it really
means: Once Ms. Smith offers some speech, Colorado
“would require [her] to create and sell speech, notwithstanding [her] sincere objection to doing so”—and the dissent would force her to comply with that demand. Post, at
29–30. Even as it does so, however, the dissent refuses to
acknowledge where its reasoning leads. In a world like
that, as Chief Judge Tymkovich highlighted, governments
could force “an unwilling Muslim movie director to make a
——————
The dissent notes that our case law has not sustained every First Amendment objection to an antidiscrimination rule, as with a law firm that
sought to exclude women from partnership. Post, at 19–21 (citing Hishon
v. King & Spalding, 467 U. S. 69 (1984); Roberts v. United States Jaycees,
468 U. S. 609 (1984)). But the dissent disregards Dale’s holding that
context matters and that very different considerations come into play
when a law is used to force individuals to toe the government’s preferred
line when speaking (or associating to express themselves) on matters of
significance. Boy Scouts of America v. Dale, 530 U. S. 640, 648–653
(2000).
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Opinion of the Court
film with a Zionist message,” they could compel “an atheist
muralist to accept a commission celebrating Evangelical
zeal,” and they could require a gay website designer to create websites for a group advocating against same-sex marriage, so long as these speakers would accept commissions
from the public with different messages. 6 F. 4th, at 1199
(dissenting opinion). Perhaps the dissent finds these possibilities untroubling because it trusts state governments to
coerce only “enlightened” speech. But if that is the calculation, it is a dangerous one indeed.7
The dissent is right about one thing—“[w]hat a difference” time can make. See post, at 2 (internal quotation
marks omitted). Eighty years ago in Barnette, this Court
affirmed that “no official, high or petty, can prescribe what
shall be orthodox in politics, nationalism, religion, or other
matters of opinion.” 319 U. S., at 642. The Court did so
despite the fact that the speech rights it defended were
deeply unpopular; at the time, the world was at war and
many thought respect for the flag and the pledge “essential
for the welfare of the state.” Id., at 662–663 (Frankfurter,
J., dissenting); see also id., at 636, 640 (majority opinion).
Fifty years ago, this Court protected the right of Nazis to
march through a town home to many Holocaust survivors
and along the way espouse ideas antithetical to those for
——————
7 Perhaps the dissent finds these possibilities untroubling for another
reason. It asserts that CADA does not apply to “[m]any filmmakers, visual artists, and writers” because they do not “hold out” their services to
the public. Post, at 27. But the dissent cites nothing to support its claim
and instead, once more, fights the facts. As we have seen, Colorado’s law
today applies to “any place of business engaged in any sales to the public.” Colo. Rev. Stat. §24–34–601(1) (emphasis added); see also Part III,
supra. And the dissent can hardly dispute that many artists and writers
accept commissions from the public. Brief for Creative Professionals
et al. as Amici Curiae 5–21. Certainly, Colorado does not advance anything like the dissent’s argument; it calls any exemption to its law for
“artists” and others who provide “custom” services “unworkable.” Brief
for Respondents 28–31 (internal quotation marks omitted).
Cite as: 600 U. S. ____ (2023)
25
Opinion of the Court
which this Nation stands. See Skokie, 432 U. S., at 43–44;
supra, at 17–18. Five years ago, in a case the dissenters
highlight at the outset of their opinion, the Court stressed
that “it is not . . . the role of the State or its officials to prescribe what shall be offensive.” Masterpiece Cakeshop, 584
U. S., at ___ (slip op., at 16). And just days ago, Members
of today’s dissent joined in holding that the First Amendment restricts how States may prosecute stalkers despite
the “harm[ful],” “low-value,” and “upsetting” nature of their
speech. Counterman v. Colorado, 600 U. S. ___, ___ (2023)
(slip op., at 6); id., at ___ (SOTOMAYOR, J., concurring in part
and concurring in judgment) (slip op., at 5).
Today, however, the dissent abandons what this Court’s
cases have recognized time and time again: A commitment
to speech for only some messages and some persons is no
commitment at all. By approving a government’s effort to
“[e]liminat[e]” disfavored “ideas,” 6 F. 4th, at 1178, today’s
dissent is emblematic of an unfortunate tendency by some
to defend First Amendment values only when they find the
speaker’s message sympathetic. But “[i]f liberty means anything at all, it means the right to tell people what they do
not want to hear.” 6 F. 4th, at 1190 (Tymkovich, C. J., dissenting) (quoting G. Orwell).
*
In this case, Colorado seeks to force an individual to
speak in ways that align with its views but defy her conscience about a matter of major significance. In the past,
other States in Barnette, Hurley, and Dale have similarly
tested the First Amendment’s boundaries by seeking to
compel speech they thought vital at the time. But, as this
Court has long held, the opportunity to think for ourselves
and to express those thoughts freely is among our most
cherished liberties and part of what keeps our Republic
strong. Of course, abiding the Constitution’s commitment
to the freedom of speech means all of us will encounter ideas
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Opinion of the Court
we consider “unattractive,” post, at 38 (opinion of
SOTOMAYOR, J.), “misguided, or even hurtful,” Hurley, 515
U. S., at 574. But tolerance, not coercion, is our Nation’s
answer. The First Amendment envisions the United States
as a rich and complex place where all persons are free to
think and speak as they wish, not as the government demands. Because Colorado seeks to deny that promise, the
judgment is
Reversed.
Cite as: 600 U. S. ____ (2023)
1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 21–476
_________________
303 CREATIVE LLC, ET AL., PETITIONERS v.
AUBREY ELENIS, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
[June 30, 2023]
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 websitedesign 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.’ ” Ibid.
2
303 CREATIVE LLC v. ELENIS
SOTOMAYOR, J., dissenting
“What a difference five years makes.” Carson v. Makin,
596 U. S. ___, ___ (2022) (SOTOMAYOR, J., dissenting) (slip
op., 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.
I
A
A “public accommodations law” is a law that guarantees
to every person the full and equal enjoyment of places of
public accommodation without unjust discrimination. The
American people, through their elected representatives,
have enacted such laws at all levels of government: The
federal Civil Rights Act of 1964 and the Americans with
Cite as: 600 U. S. ____ (2023)
3
SOTOMAYOR, J., dissenting
Disabilities Act of 1990 prohibit discrimination by places of
public accommodation on the basis of race, color, religion,
national origin, or disability.1 All but five States have
analogous laws that prohibit discrimination on the basis of
these and other traits, such as age, sex, sexual orientation,
and gender identity.2 And numerous local laws offer
similar protections.
The people of Colorado have adopted the Colorado AntiDiscrimination Act (CADA), which provides:
“It is a discriminatory practice and unlawful for a
person, directly or indirectly, to refuse, withhold from,
——————
1 See 42 U. S. C. §2000a et seq. (Title II of Civil Rights Act of 1964); 42
U. S. C. §12181 et seq. (Title III of Americans with Disabilities Act of
1990).
2 See Alaska Stat. §18.80.230 (2023); Ariz. Rev. Stat. Ann. §41–1442
(2017); Ark. Code Ann. §16–123–107 (Supp. 2021); Cal. Civ. Code Ann.
§51 (West 2020); Colo. Rev. Stat. §24–34–601 (2022); Conn. Gen. Stat.
§§46a–64, 46a–81d (Cum. Supp. 2023); Del. Code Ann., Tit. 6, §4504
(Cum. Supp. 2022); Fla. Stat. §§413.08, 760.08 (2022); Haw. Rev. Stat.
§489–3 (Cum. Supp. 2021); Idaho Code Ann. §67–5909 (2020); Ill. Comp.
Stat., ch. 775, §5/1–102 (West Supp. 2021); Ind. Code §22–9–1–2 (2022);
Iowa Code §216.7 (2023); Kan. Stat. Ann. §44–1001 (2021); Ky. Rev. Stat.
Ann. §§344.120, 344.145 (West 2018); La. Rev. Stat. Ann. §51:2247 (West
Cum. Supp. 2023); Me. Rev. Stat. Ann., Tit. 5, §4591 (Cum. Supp. 2023);
Md. State Govt. Code Ann. §20–304 (2021); Mass. Gen. Laws, ch. 272,
§98 (2020); Mich. Comp. Laws §§37.1102, 37.2302 (1981), as amended,
2023 Mich. Pub. Acts no. 6 (sine die); Minn. Stat. §363A.11 (2022); Mo.
Rev. Stat. §213.065 (Cum. Supp. 2021); Mont. Code Ann. §49–2–304
(2021); Neb. Rev. Stat. §20–134 (2022); Nev. Rev. Stat. §651.070 (2017);
N. H. Rev. Stat. Ann. §354–A:17 (2022); N. J. Stat. Ann. §10:5–12 (West
Cum. Supp. 2023); N. M. Stat. Ann. §28–1–7 (2022); N. Y. Civ. Rights
Law Ann. §40 (West 2019); N. D. Cent. Code Ann. §14–02.4–14 (2017);
Ohio Rev. Code Ann. §4112.02 (Lexis Supp. 2023); Okla. Stat., Tit. 25,
§1402 (2011); Ore. Rev. Stat. §659A.403 (2021); Pa. Stat. Ann., Tit. 43,
§953 (Purdon 2020); R. I. Gen. Laws §11–24–2 (2002); S. C. Code Ann.
§45–9–10 (2016); S. D. Codified Laws §20–13–23 (2016); Tenn. Code Ann.
§4–21–501 (2021); Utah Code §13–7–3 (2022); Vt. Stat. Ann., Tit. 9,
§4502 (2020); Va. Code Ann. §2.2–3904 (2022); Wash. Rev. Code
§49.60.215 (2022); W. Va. Code Ann. §5–11–2 (Lexis 2022); Wis. Stat.
§106.52 (2019–2020); Wyo. Stat. Ann. §6–9–101 (2021).
4
303 CREATIVE LLC v. ELENIS
SOTOMAYOR, J., dissenting
or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, gender
identity, gender expression, marital status, national
origin, or ancestry, the full and equal enjoyment of the
goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.”
Colo. Rev. Stat. §24–34–601(2)(a).
This provision, known as the Act’s “Accommodation
Clause,” applies to any business engaged in sales “to the
public.” §24–34–601(1). The Accommodation Clause does
not apply to any “church, synagogue, mosque, or other place
that is principally used for religious purposes.” Ibid.
In addition, CADA contains what is referred to as the
Act’s “Communication Clause,” which makes it unlawful to
advertise that services “will be refused, withheld from, or
denied,” or that an individual is “unwelcome” at a place of
public accommodation, based on the same protected traits.
§24–34–601(2)(a). In other words, just as a business open
to the public may not refuse to serve customers based on
race, religion, or sexual orientation, so too the business may
not hang a sign that says, “No Blacks, No Muslims, No
Gays.”
A public accommodations law has two core purposes.
First, the law ensures “equal access to publicly available
goods and services.” Roberts v. United States Jaycees, 468
U. S. 609, 624 (1984) (emphasis added). For social groups
that face discrimination, such access is vital. All the more
so if the group is small in number or if discrimination
against the group is widespread. Equal access is mutually
beneficial: Protected persons receive “equally effective and
meaningful opportunity to benefit from all aspects of life in
America,” 135 Cong. Rec. 8506 (1989) (remarks of Sen.
Harkin) (Americans with Disabilities Act), and “society,” in
return, receives “the benefits of wide participation in political, economic, and cultural life.” Roberts, 468 U. S., at 625.
Cite as: 600 U. S. ____ (2023)
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SOTOMAYOR, J., dissenting
Second, a public accommodations law ensures equal dignity in the common market. Indeed, that is the law’s “fundamental object”: “to vindicate ‘the deprivation of personal
dignity that surely accompanies denials of equal access to
public establishments.’ ” Heart of Atlanta Motel, Inc. v.
United States, 379 U. S. 241, 250 (1964) (quoting S. Rep.
No. 872, 88th Cong., 2d Sess., 16 (1964)). This purpose does
not depend on whether goods or services are otherwise
available. “ ‘Discrimination is not simply dollars and cents,
hamburgers and movies; it is the humiliation, frustration,
and embarrassment that a person must surely feel when he
is told that he is unacceptable as a member of the public
because of his [social identity]. It is equally the inability to
explain to a child that regardless of education, civility, courtesy, and morality he will be denied the right to enjoy equal
treatment.’ ” 379 U. S., at 292 (Goldberg, J., concurring).
When a young Jewish girl and her parents come across a
business with a sign out front that says, “ ‘No dogs or Jews
allowed,’ ”3 the fact that another business might serve her
family does not redress that “stigmatizing injury,” Roberts,
468 U. S., at 625. Or, put another way, “the hardship
Jackie Robinson suffered when on the road” with his baseball team “was not an inability to find some hotel that would
have him; it was the indignity of not being allowed to stay
in the same hotel as his white teammates.” J. Oleske, The
Evolution of Accommodation, 50 Harv. Civ. Rights-Civ. Lib.
L. Rev. 99, 138 (2015).
To illustrate, imagine a funeral home in rural Mississippi
agrees to transport and cremate the body of an elderly man
who has passed away, and to host a memorial lunch. Upon
learning that the man’s surviving spouse is also a man,
however, the funeral home refuses to deal with the family.
——————
3 Hearings on the Nomination of Ruth Bader Ginsburg To Be Associate
Justice of the Supreme Court of the United States before the Senate
Committee on the Judiciary, 103d Cong., 1st Sess., 139 (1993).
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303 CREATIVE LLC v. ELENIS
SOTOMAYOR, J., dissenting
Grief stricken, and now isolated and humiliated, the family
desperately searches for another funeral home that will
take the body. They eventually find one more than 70 miles
away. See First Amended Complaint in Zawadski v.
Brewer Funeral Services, Inc., No. 55CI1–17–cv–00019
(C. C. Pearl River Cty., Miss., Mar. 7, 2017), pp. 4–7.4 This
ostracism, this otherness, is among the most distressing
feelings that can be felt by our social species. K. Williams,
Ostracism, 58 Ann. Rev. Psychology 425, 432–435 (2007).
Preventing the “unique evils” caused by “acts of invidious
discrimination in the distribution of publicly available
goods, services, and other advantages” is a compelling state
interest “of the highest order.” Roberts, 468 U. S., at 624,
628; see Board of Directors of Rotary Int’l v. Rotary Club of
Duarte, 481 U. S. 537, 549 (1987). Moreover, a law that
prohibits only such acts by businesses open to the public is
narrowly tailored to achieve that compelling interest. The
law “responds precisely to the substantive problem which
legitimately concerns the State”: the harm from statusbased discrimination in the public marketplace. Roberts,
468 U. S., at 629 (internal quotation marks omitted).
This last aspect of a public accommodations law deserves
special emphasis: The law regulates only businesses that
choose to sell goods or services “to the general public,” e.g.,
Va. Code Ann. §2.2–3904, or “to the public,” e.g., Mich.
Comp. Laws §37.2301. Some public accommodations laws,
——————
4 The men in this story are Robert “Bob” Huskey and John “Jack”
Zawadski. Bob and Jack were a loving couple of 52 years. They moved
from California to Colorado to care for Bob’s mother, then to Wisconsin
to farm apples and teach special education, and then to Mississippi to
retire. Within weeks of this Court’s decision in Obergefell v. Hodges, 576
U. S. 644 (2015), Bob and Jack got married. They were 85 and 81 years
old on their wedding day. A few months later, Bob’s health took a turn.
He died the following spring. When Bob’s family was forced to find an
alternative funeral home more than an hour from where Bob and Jack
lived, the lunch in Bob’s memory had to be canceled. Jack died the next
year.
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7
SOTOMAYOR, J., dissenting
such as the federal Civil Rights Act, list establishments
that qualify, but these establishments are ones open to the
public generally. See, e.g., 42 U. S. C. §2000a(b) (hotels,
restaurants, gas stations, movie theaters, concert halls,
sports arenas, stadiums). A public accommodations law
does not force anyone to start a business, or to hold out the
business’s goods or services to the public at large. The law
also does not compel any business to sell any particular
good or service. But if a business chooses to profit from the
public market, which is established and maintained by the
state, the state may require the business to abide by a legal
norm of nondiscrimination. In particular, the state may ensure that groups historically marked for second-class status
are not denied goods or services on equal terms.
The concept of a public accommodation thus embodies a
simple, but powerful, social contract: A business that
chooses to sell to the public assumes a duty to serve the
public without unjust discrimination. J. Singer, No Right
To Exclude: Public Accommodations and Private Property,
90 Nw. U. L. Rev. 1283, 1298 (1996) (Singer).
B
The legal duty of a business open to the public to serve
the public without unjust discrimination is deeply rooted in
our history. The true power of this principle, however, lies
in its capacity to evolve, as society comes to understand
more forms of unjust discrimination and, hence, to include
more persons as full and equal members of “the public.”
1
“At common law, innkeepers, smiths, and others who
‘made profession of a public employment,’ were prohibited
from refusing, without good reason, to serve a customer.”
Hurley v. Irish-American Gay, Lesbian and Bisexual Group
of Boston, Inc., 515 U. S. 557, 571 (1995) (quoting Lane v.
Cotton, 12 Mod. 472, 485, 88 Eng. Rep. 1458, 1465 (K. B.
8
303 CREATIVE LLC v. ELENIS
SOTOMAYOR, J., dissenting
1701) (Holt, C. J.)). “Public employment” meant a business
“in which the owner has held himself out as ready to serve
the public by exercising his trade.” Singer 1307; see, e.g.,
Gisbourn v. Hurst, 1 Salk. 249, 91 Eng. Rep. 220 (K. B.
1710). Take, for example, Lane v. Cotton, “[t]he leading
English case” on the subject “cited over and over again in
the nineteenth century in the United States.” Singer 1304.
There, Lord Chief Justice Holt explained:
“[W]here-ever any subject takes upon himself a public trust for the benefit of the rest of his fellow-subjects,
he is eo ipso bound to serve the subject in all the things
that are within the reach and comprehension of such
an office, under pain of an action against him. . . . If on
the road a shoe fall off my horse, and I come to a smith
to have one put on, and the smith refuse to do it, an
action will lie against him, because he has made profession of a trade which is for the public good, and has
thereby exposed and vested an interest of himself in all
the King’s subjects that will employ him in the way of
his trade.” Lane v. Cotton, 12 Mod., at 484, 88 Eng.
Rep., at 1464.
That is to say, a business’s duty to serve all comers derived
from its choice to hold itself out as ready to serve the public.
This holding-out rationale became firmly established in
early American law. See 2 J. Kent, Commentaries on American Law 464–465 (1827); J. Story, Commentaries on the
Law of Bailments §§495, 591 (1832); see also, e.g., Markham v. Brown, 8 N. H. 523, 528 (1837); Jencks v. Coleman,
13 F. Cas. 442, 443 (No. 7,258) (CC RI 1835) (Story, J.);
Dwight v. Brewster, 18 Mass. 50, 53 (1822).
The majority is therefore mistaken to suggest that public
accommodations or common carriers historically assumed
duties to serve all comers because they enjoyed monopolies
or otherwise had market power. Ante, at 13. Tellingly, the
majority cites no common-law case espousing the monopoly
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9
SOTOMAYOR, J., dissenting
rationale.5 That is because nowhere in the relevant case
law “is monopoly suggested as the distinguishing characteristic.” E. Adler, Business Jurisprudence, 28 Harv. L. Rev.
135, 156 (1914) (“A distinction based on monopoly would require proof that the common carrier had some kind of a monopoly which the private carrier did not have, or that ‘common’ was synonymous with ‘monopoly.’ The plain meaning
of the cases is [instead that] the common was the public, the
professional, the business carrier or other trader”).6
2
After the Civil War, some States codified the common-law
duty of public accommodations to serve all comers. See M.
Konvitz & T. Leskes, A Century of Civil Rights 155–157
(1961). Early state public accommodations statutes prohibited discrimination based on race or color. Yet the principle
was at times stated more broadly: to provide “a remedy
against any unjust discrimination to the citizen in all public
places.” Ferguson v. Gies, 82 Mich. 358, 365, 46 N. W. 718,
720 (1890). In 1885, Colorado adopted “ ‘An Act to Protect
All Citizens in Their Civil Rights,’ which guaranteed ‘full
——————
5 For example, a case on which the majority relies found that it could
“shortly dispos[e]” of the question whether a steamship company was a
common carrier because the company was “the owner of a general ship,
carrying goods for hire . . . and perform[ing]” that service “regular[ly].”
Liverpool & Great Western Steam Co. v. Phenix Ins. Co., 129 U. S. 397,
437 (1889). No showing of market power was required. Ibid.
6 Nor does “host[ing] or transport[ing] others and their belongings,”
ante, at 13, explain the right of access. Smiths, for instance, did not always practice their trade by holding property for others. And even when
they did, any duty of care resulting from such bailment cannot explain
the duty to serve all comers, which logically must be assumed beforehand. See Lane v. Cotton, 12 Mod. 472, 484, 88 Eng. Rep. 1458, 1464
(K. B. 1701) (Holt, C. J.). That duty instead came from somewhere else,
and the weight of authority indicates that it came from a business’s act
of holding itself out to the public as ready to serve anyone who would hire
it. Singer 1304–1330; 3 W. Blackstone, Commentaries on the Laws of
England 164 (1768); J. Story, Commentaries on the Law of Bailments
§§495, 591 (1837); 1 T. Parsons, Law of Contracts 639, 643, 649 (1853).
10
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SOTOMAYOR, J., dissenting
and equal enjoyment’ of certain public facilities to ‘all citizens,’ ‘regardless of race, color or previous condition of servitude.’ ” Masterpiece Cakeshop, 584 U. S., at ___–___ (slip
op., at 4–5) (quoting 1885 Colo. Sess. Laws p. 132). “A decade later, the [State] expanded the requirement to apply to
‘all other places of public accommodation.’ ” 584 U. S., at
___ (slip op., at 5) (quoting 1895 Colo. Sess. Laws ch. 61, p.
139). Congress, too, passed the Civil Rights Act of 1875,
which established “[t]hat all persons within the jurisdiction
of the United States shall be entitled to the full and equal
enjoyment of the accommodations, advantages, facilities,
and privileges of inns, public conveyances on land or water,
theaters, and other places of public amusement . . . applicable alike to citizens of every race and color, regardless of
any previous condition of servitude.” Act of Mar. 1, 1875,
§1, 18 Stat. 336.
This Court, however, struck down the federal Civil Rights
Act of 1875 as unconstitutional. Civil Rights Cases, 109
U. S. 3, 25 (1883). Southern States repealed public accommodations statutes and replaced them with Jim Crow laws.
And state courts construed any remaining right of access in
ways that furthered de jure and de facto racial segregation.7
Full and equal enjoyment came to mean “separate but
equal” enjoyment. The result of this backsliding was “the
replacement of a general right of access with a general right
to exclude . . . in order to promote a racial caste system.”
Singer 1295.
——————
7 Compare, e.g., Chesapeake, O. & S. R. Co. v. Wells, 85 Tenn. 613, 615,
4 S. W. 5 (1887) (rejecting Ida B. Wells’s claim that she was denied “ ‘accommodations equal in all respects,’ ” when she tried to enter a train car
“set apart for white ladies and their gentlemen” on account of tobacco
smoke in her car, and was forcibly removed), with Memphis & C. R. Co.
v. Benson, 85 Tenn. 627, 632, 4 S. W. 5, 7 (1887) (accepting that a white
man would be permitted to ride standing in the ladies’ car on account of
tobacco smoke in his car).
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11
SOTOMAYOR, J., dissenting
In time, the civil rights movement of the mid-20th century again demanded racial equality in public places. In
1963, two decades after then–Howard University law student Pauli Murray organized sit-ins at cafeterias in Washington, D. C., a diverse group of students and faculty from
Tougaloo College sat at Woolworth’s lunch counter in Jackson, Mississippi. For doing so, they were violently attacked
by a white mob. See A. Moody, Coming of Age in Mississippi 235–240 (1992). Around the country, similar acts of
protest against racial injustice, some big and some small,
sought “to create such a crisis and foster such a tension”
that the country would be “forced to confront the issue.” M.
King, Letter from a Birmingham Jail, Apr. 16, 1963. That
year, Congress once more set out to eradicate “discrimination . . . in places of accommodation and public facilities,”
Heart of Atlanta Motel, 379 U. S., at 246, notwithstanding
this Court’s previous declaration of a federal public accommodations law to be unconstitutional.
Congress believed, rightly, that discrimination in places
of public accommodation—“the injustice of being arbitrarily
denied equal access to those facilities and accommodations
which are otherwise open to the general public”—had “no
place” in this country, the country “of the melting pot, of
equal rights, of one nation and one people.” S. Rep. No. 872,
at 8–9 (quoting President Kennedy, June 19, 1963). It
therefore passed Title II of the Civil Rights Act of 1964,
which declares: “All persons shall be entitled to the full and
equal enjoyment of the goods, services, facilities, privileges,
advantages, and accommodations of any place of public accommodation . . . without discrimination . . . on the ground
of race, color, religion, or national origin.” 42 U. S. C.
§2000a. In enacting this landmark civil rights statute, Congress invoked the holding-out rationale from antebellum
common law: “one who employed his private property for
purposes of commercial gain by offering goods or services to
the public must stick to his bargain.” S. Rep. No. 872, at
12
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SOTOMAYOR, J., dissenting
22; see also id., at 9–10 (endorsing Lord Holt’s view in Lane
v. Cotton).
This bargain, America would soon realize, had long excluded half of society. Women, though having won the right
to vote half a century earlier, were not equal in public. Instead, a “separate-spheres ideology” had “assigned women
to the home and men to the market.” E. Sepper & D. Dinner, Sex in Public, 129 Yale L. J. 78, 83, 88–90 (2019) (Sepper & Dinner). Women were excluded from restaurants,
bars, civic and professional organizations, financial institutions, and sports. “Just as it did for the civil rights struggle,
public accommodations served as kindling for feminist mobilization.” Id., at 83, 97–104; cf. S. Mayeri, Reasoning
From Race: Feminism, Law, and the Civil Rights Revolution 9–40 (2011). In response to a movement for women’s
liberation, numerous States banned discrimination in public accommodations on the basis of “sex.” See Sepper & Dinner 104, nn. 145–147 (collecting statutes). Colorado was
the first State to do so. See 1969 Colo. Sess. Laws ch. 74, p.
200.
In the decades that followed, the Nation opened its eyes
to another injustice. People with disabilities, though inherently full and equal members of the public, had been excluded from many areas of public life. This exclusion
worked harms not only to disabled people’s standards of living, but to their dignity too. So Congress, responding once
again to a social movement, this time against the subordination of people with disabilities, banned discrimination on
that basis and secured by law disabled people’s equal access
to public spaces. See S. Bagenstos, Law and the Contradictions of the Disability Rights Movement 13–20 (2009); R.
Colker, The Disability Pendulum 22–68 (2005). The centerpiece of this political and social action was the Americans
with Disabilities Act of 1990 (ADA). Title III of the ADA
provides that “[n]o individual shall be discriminated
Cite as: 600 U. S. ____ (2023)
13
SOTOMAYOR, J., dissenting
against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” 42 U. S. C. §12182(a).
Not only have public accommodations laws expanded to
recognize more forms of unjust discrimination, such as discrimination based on race, sex, and disability, such laws
have also expanded to include more goods and services as
“public accommodations.” What began with common inns,
carriers, and smiths has grown to include restaurants, bars,
movie theaters, sports arenas, retail stores, salons, gyms,
hospitals, funeral homes, and transportation networks. See
nn. 1–2, supra; L. Lerman & A. Sanderson, Discrimination
in Access to Public Places: A Survey of State and Federal
Public Accommodations Laws, 7 N. Y. U. Rev. L. & Soc.
Change 215, 217 (1978) (“ ‘Public accommodations’ is a term
of art which was developed by the drafters of discrimination
laws to refer to [public] places other than schools, work
places, and homes”). Today, laws like Colorado’s cover “any
place of business engaged in any sales to the public and any
place offering services . . . to the public.” Colo. Rev. Stat.
§24–34–601(1); see also, e.g., Ohio Rev. Code Ann.
§4112.01(9). Numerous other States extend such protections to businesses offering goods or services to “the general
public.” Ariz. Rev. Stat. Ann. §41–1441(2); see also, e.g.,
Mass. Gen. Laws, ch. 272, §92A.
This broader scope, though more inclusive than earlier
state public accommodations laws, is in keeping with the
fundamental principle—rooted in the common law, but
alive and blossoming in statutory law—that the duty to
serve without unjust discrimination is owed to everyone,
and it extends to any business that holds itself out as ready
to serve the public. If you have ever taken advantage of a
public business without being denied service because of who
you are, then you have come to enjoy the dignity and freedom that this principle protects.
14
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SOTOMAYOR, J., dissenting
3
Lesbian, gay, bisexual, and transgender (LGBT) people,
no less than anyone else, deserve that dignity and freedom.
The movement for LGBT rights, and the resulting expansion of state and local laws to secure gender and sexual minorities’ full and equal enjoyment of publicly available
goods and services, is the latest chapter of this great American story.
LGBT people have existed for all of human history. And
as sure as they have existed, others have sought to deny
their existence, and to exclude them from public life. Those
who would subordinate LGBT people have often done so
with the backing of law. For most of American history,
there were laws criminalizing same-sex intimacy. Obergefell v. Hodges, 576 U. S. 644, 660–661 (2015). “Gays and
lesbians were [also] prohibited from most government employment, barred from military service, excluded under immigration laws, targeted by police, and burdened in their
rights to associate.” Id., at 661. “These policies worked to
create and reinforce the belief that gay men and lesbians”
constituted “an inferior class.” Brief for Organization of
American Historians as Amicus Curiae in Obergefell v.
Hodges, O. T. 2014, No. 14–556, p. 3.
State-sponsored discrimination was compounded by discrimination in public accommodations, though the two often went hand in hand. The police raided bars looking for
gays and lesbians so often that some bars put up signs saying, “ ‘We Do Not Serve Homosexuals.’ ” Id., at 13 (quoting
G. Chauncey, Why Marriage 8 (2004)). LGBT discrimination in public accommodations has continued well into the
21st century. See UCLA School of Law Williams Institute,
C. Mallory & B. Sears, Evidence of Discrimination in Public
Accommodations Based on Sexual Orientation and Gender
Identity (2016).
A social system of discrimination created an environment
in which LGBT people were unsafe. Who could forget the
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15
SOTOMAYOR, J., dissenting
brutal murder of Matthew Shepard? Matthew was targeted
by two men, tortured, tied to a buck fence, and left to die for
who he was. See K. Drake, Gay Man Beaten, Burned and
Left Tied to Fence, Casper Star-Tribune, Oct. 10, 1998, p.
A1. Or the Pulse nightclub massacre, the second-deadliest
mass shooting in U. S. history? See S. Stolberg, For Gays
Across America, a Massacre Punctuates Fitful Gains, N. Y.
Times, June 13, 2016, p. A1. Rates of violent victimization
are still significantly higher for LGBT people, with
transgender persons particularly vulnerable to attack. See
Dept. of Justice, J. Truman & R. Morgan, Violent Victimization by Sexual Orientation and Gender Identity, 2017–
2020 (2022).
Determined not to live as “social outcasts,” Masterpiece
Cakeshop, 584 U. S., at ___ (slip op., at 9), LGBT people
have risen up. The social movement for LGBT rights has
been long and complex. See L. Faderman, The Gay Revolution (2015) (Faderman). But if there ever was an “earthquake,” it occurred in the final days of June in 1969 at the
Stonewall Inn in Greenwich Village. Id., at 169. The Stonewall Inn was a gay bar with a “varied and lively clientele.”
Id., at 171. Its “ ‘unruly’ element” made it “an especially
inviting target” for police raids. J. D’Emilio, Sexual Politics, Sexual Communities 231 (1983) (D’Emilio). “Patrons
of the Stonewall tended to be young and nonwhite. Many
were drag queens. . . . ” Ibid. Just before midnight on June
27, the New York police’s Public Morals Squad showed up
to the bar and started making arrests. Drag queens, for
example, were arrested for offenses like being “disguised”
in “unnatural attire.” N. Y. Penal Law Ann. §240.35(4)
(West 1967).
What started out as a fairly routine police raid, however,
became anything but. Outside the Stonewall Inn, patrons
who had been thrown out started to form a crowd. “Jeers
and catcalls arose from the onlookers when a paddy wagon
departed with the bartender, the Stonewall’s bouncer, and
16
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SOTOMAYOR, J., dissenting
three drag queens.” D’Emilio 231. “A few minutes later, an
officer attempted to steer the last of the patrons, a lesbian,
through the bystanders to a nearby patrol car.” Id., at 231–
232. When she started to struggle, protests erupted. They
lasted into the night and continued into the next. News of
the Stonewall protests “spread rapidly,” and “within a year
gay liberation groups had sprung into existence on college
campuses and in cities around the nation.” Id., at 233.
From there, the path to LGBT rights has not been quick or
easy. Nor is it over. Still, change has come: change in social
attitudes, in representation, and in legal institutions.
Faderman 535–629.
One significant change has been the addition of sexual
orientation and gender identity to public accommodations
laws. State and local legislatures took note of the failure of
such laws to protect LGBT people and, in response, acted to
guarantee them “all the privileges . . . of any other member
of society.” Hearings on S. B. 200 before the House Judiciary Committee, 66th Gen. Assem., 2d Reg. Sess., 4, 11–12
(Colo. 2008) (remarks of Sen. Judd). Colorado thus
amended its antidiscrimination law in 2008 to prohibit the
denial of publicly available goods or services on the basis of
“sexual orientation.” 2008 Colo. Sess. Laws. ch. 341, pp.
1596–1597. About half of the States now provide such protections.8 It is “ ‘unexceptional’ ” that they may do so. Ante,
at 13 (quoting Masterpiece Cakeshop, 584 U. S., at ___ (slip
op., at 10)). “These are protections taken for granted by
——————
8 See Cal. Civ. Code Ann. §51; Colo. Rev. Stat. §24–34–601; Conn. Gen.
Stat. §46a–81d; Del. Code Ann., Tit. 6, §4504; Haw. Rev. Stat. §489–3;
Ill. Comp. Stat., ch. 775, §5/1–102; Iowa Code §216.7; Me. Rev. Stat.
Ann., Tit. 5, §4591; Md. State Govt. Code Ann. §20–304; Mass. Gen.
Laws, ch. 272, §98; Mich. Comp. Laws §37.2302, as amended; Minn. Stat.
§363A.11; Nev. Rev. Stat. §651.070; N. H. Rev. Stat. Ann. §354–A:17;
N. J. Stat. Ann. §10:5–12; N. M. Stat. Ann. §28–1–7; N. Y. Civ. Rights
Law Ann. §40; Ore. Rev. Stat. §659A.403; R. I. Gen. Laws §11–24–2; Vt.
Stat. Ann., Tit. 9, §4502; Va. Code Ann. §2.2–3904; Wash. Rev. Code
§49.60.215; Wis. Stat. §106.52.
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17
SOTOMAYOR, J., dissenting
most people either because they already have them or do
not need them; these are protections against exclusion from
an almost limitless number of transactions and endeavors
that constitute ordinary civic life in a free society.” Romer
v. Evans, 517 U. S. 620, 631 (1996). LGBT people do not
seek any special treatment. All they seek is to exist in public. To inhabit public spaces on the same terms and conditions as everyone else.
C
Yet for as long as public accommodations laws have been
around, businesses have sought exemptions from them.
The civil rights and women’s liberation eras are prominent
examples of this. Backlashes to race and sex equality gave
rise to legal claims of rights to discriminate, including
claims based on First Amendment freedoms of expression
and association. This Court was unwavering in its rejection
of those claims, as invidious discrimination “has never been
accorded affirmative constitutional protections.” Norwood
v. Harrison, 413 U. S. 455, 470 (1973). In particular, the
refusal to deal with or to serve a class of people is not an
expressive interest protected by the First Amendment.
1
Opponents of the Civil Rights Act of 1964 objected that
the law would force business owners to defy their beliefs.
Cf. ante, at 3. They argued that the Act would deny them
“any freedom to speak or to act on the basis of their religious
convictions or their deep-rooted preferences for associating
or not associating with certain classifications of people.”
110 Cong. Rec. 7778 (1964) (remarks of Sen. Tower). Congress rejected those arguments. Title II of the Act, in particular, did not invade “rights of privacy [or] of free association,” Congress concluded, because the establishments
covered by the law were “those regularly held open to the
18
303 CREATIVE LLC v. ELENIS
SOTOMAYOR, J., dissenting
public in general.” H. R. Rep. No. 914, 88th Cong., 1st Sess.,
pt. 2, p. 9 (1963); see also S. Rep. No. 872, at 92.
Having failed to persuade Congress, opponents of Title II
turned to the federal courts. In Heart of Atlanta Motel, one
of several arguments made by the plaintiff motel owner was
that Title II violated his Fifth Amendment due process
rights by “tak[ing] away the personal liberty of an individual to run his business as he sees fit with respect to the
selection and service of his customers.” Brief for Appellant,
O. T. 1964, No. 515, p. 32. This Court disagreed, based on
“a long line of cases” holding that “prohibition of racial discrimination in public accommodations” did not “interfer[e]
with personal liberty.” 379 U. S., at 260.
In Katzenbach v. McClung, 379 U. S. 294 (1964), the
owner of Ollie’s Barbecue (Ollie McClung) likewise argued
that Title II’s application to his business violated the “personal rights of persons in their personal convictions” to
deny services to Black people. Brief for Appellees, O. T.
1964, No. 543, p. 33 (citing, inter alia, West Virginia Bd. of
Ed. v. Barnette, 319 U. S. 624 (1943)). Note that McClung
did not refuse to transact with Black people. Oh, no. He
was willing to offer them take-out service at a separate
counter. See Brief for NAACP Legal Defense and Educational Fund, Inc., as Amicus Curiae in Katzenbach v.
McClung, p. 4, n. 5. Only integrated table service, you see,
violated McClung’s core beliefs. So he claimed a constitutional right to offer Black people a limited menu of his services. This Court rejected that claim, citing its decision in
Heart of Atlanta Motel. See 379 U. S., at 298, n. 1.
Next is Newman v. Piggie Park Enterprises, Inc., 390
U. S. 400 (1968) (per curiam), in which the owner of a chain
of drive-in establishments asserted that requiring him to
“contribut[e]” to racial integration in any way violated the
First Amendment by interfering with his religious liberty.
App. to Pet. for Cert., O. T. 1967, No. 339, p. 21a. Title II
could not be applied to his business, he argued, because that
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SOTOMAYOR, J., dissenting
would “ ‘controven[e] the will of God.’ ” 390 U. S., at 402–
403, n. 5. The Court found this argument “patently frivolous.” Ibid.
Last but not least is Runyon v. McCrary, 427 U. S. 160
(1976), a case the majority studiously avoids. In Runyon,
the Court confronted the question whether “commercially
operated” schools had a First Amendment right to exclude
Black children, notwithstanding a federal law against racial discrimination in contracting. Id., at 168; see 42
U. S. C. §1981. The schools in question offered “educational
services” for sale to “the general public.” 427 U. S., at 172.
They argued that the law, as applied to them, violated their
First Amendment rights of “freedom of speech, and association.” Pet. for Cert., O. T. 1976, No. 75–62, p. 6; see also
Brief for Petitioners, O. T. 1976, No. 75–62, p. 12 (“Freedom
to teach, to express ideas”). The Court, however, reasoned
that the schools’ “practice” of denying educational services
to racial minorities was not shielded by the First Amendment, for two reasons: First, “the Constitution places no
value on discrimination.” 427 U. S., at 176 (alterations and
internal quotations marks omitted). Second, the government’s regulation of conduct did not “inhibit” the schools’
ability to teach its preferred “ideas or dogma.” Ibid. (internal quotation marks omitted). Requiring the schools to
abide by an antidiscrimination law was not the same thing
as compelling the schools to express teachings contrary to
their sincerely held “belief that racial segregation is desirable.” Ibid.
2
First Amendment rights of expression and association
were also raised to challenge laws against sex discrimination. In Roberts v. United States Jaycees, the United States
Jaycees sought an exemption from a Minnesota law that
forbids discrimination on the basis of sex in public accommodations. The U. S. Jaycees was a civic organization,
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SOTOMAYOR, J., dissenting
which until then had denied admission to women. The organization alleged that applying the law to require it to include women would violate its “members’ constitutional
rights of free speech and association.” 468 U. S., at 615.
“The power of the state to change the membership of an organization is inevitably the power to change the way in
which it speaks,” the Jaycees argued. Brief for Appellee,
O. T. 1983, No. 83–724, p. 19 (emphasis added). Thus, “the
right of the Jaycees to decide its own membership” was “inseparable,” in its view, “from its ability to freely express itself.” Ibid.
This Court took a different view. The Court held that the
“application of the Minnesota statute to compel the Jaycees
to accept women” did not infringe the organization’s First
Amendment “freedom of expressive association.” Roberts,
468 U. S., at 622. That was so because the State’s public
accommodations law did “not aim at the suppression of
speech” and did “not distinguish between prohibited and
permitted activity on the basis of viewpoint.” Id., at 623–
624. If the State had applied the law “for the purpose of
hampering the organization’s ability to express its views,”
that would be a different matter. Id., at 624 (emphasis
added). “Instead,” the law’s purpose was “eliminating discrimination and assuring [the State’s] citizens equal access
to publicly available goods and services.” Ibid. “That goal,”
the Court reasoned, “was unrelated to the suppression of
expression” and “plainly serves compelling state interests
of the highest order.” Ibid.
Justice O’Connor concurred in part and concurred in the
judgment. See id., at 631. She stressed that the U. S. Jaycees was a predominantly commercial entity open to the
public. And she took the view that there was a First
Amendment “dichotomy” between rights of commercial and
expressive association. Id., at 634. The State, for example,
was “free to impose any rational regulation” on commercial
transactions themselves. “A shopkeeper,” Justice O’Connor
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explained, “has no constitutional right to deal only with persons of one sex.” Ibid.
To wit, the Court had just decided in Hishon v. King &
Spalding, 467 U. S. 69, 78 (1984), that a law partnership
had no constitutional right to discriminate on the basis of
sex in violation of Title VII. The law partnership was an
act of association. Its services (legal advocacy) were expressive; indeed, they consisted of speech. So the law firm argued that requiring it to consider a woman for the partnership violated its First Amendment rights “of free
expression” and “of commercial association.” Brief for Respondent, O. T. 1983, No. 82–940, pp. 14–18. This Court
rejected that argument. The application of Title VII did not
“infringe constitutional rights of expression or association,”
the Court held, because compliance with Title VII did not
“inhibi[t]” the partnership’s ability to advocate for certain
“ideas and beliefs.” 467 U. S., at 78 (internal quotation
marks omitted); see also supra, at 19 (discussing Runyon,
427 U. S., at 176). The Court reiterated: “ ‘[I]nvidious private discrimination . . . has never been accorded affirmative
constitutional protections.’ ” 467 U. S., at 78 (quoting Norwood, 413 U. S., at 470).
II
Battling discrimination is like “battling the Hydra.”
Shelby County v. Holder, 570 U. S. 529, 560 (2013) (Ginsburg, J., dissenting). Whenever you defeat “one form of . . .
discrimination,” another “spr[ings] up in its place.” Ibid.
Time and again, businesses and other commercial entities
have claimed constitutional rights to discriminate. And
time and again, this Court has courageously stood up to
those claims—until today. Today, the Court shrinks. A
business claims that it would like to sell wedding websites
to the general public, yet deny those same websites to gay
and lesbian couples. Under state law, the business is free
to include, or not to include, any lawful message it wants in
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its wedding websites. The only thing the business may not
do is deny whatever websites it offers on the basis of sexual
orientation. This Court, however, grants the business a
broad exemption from state law and allows the business to
post a notice that says: Wedding websites will be refused to
gays and lesbians. The Court’s decision, which conflates
denial of service and protected expression, is a grave error.
A
303 Creative LLC is a limited liability company that sells
graphic and website designs for profit. Lorie Smith is the
company’s founder and sole member-owner. Smith believes
same-sex marriages are “false,” because “ ‘God’s true story
of marriage’ ” is a story of a “ ‘union between one man and
one woman.’ ” Brief for Petitioners 4, 6–7 (quoting App. to
Pet. for Cert. 188a, 189a); Tr. of Oral Arg. 36, 40–41. Samesex marriage, according to her, “violates God’s will” and
“harms society and children.” App. to Pet. for Cert. 186a.
303 Creative has never sold wedding websites. Smith
now believes, however, that “God is calling her ‘to explain
His true story about marriage.’ ” Brief for Petitioners 7
(quoting App. to Pet. for Cert. 188a). For that reason, she
says, she wants her for-profit company to enter the wedding
website business. There is only one thing: Smith would like
her company to sell wedding websites “to the public,” App.
to Pet. for Cert. 189a; Colo. Rev. Stat. §24–34–601(1), but
not to same-sex couples. She also wants to post a notice on…