Kuttner on TAP: The Roberts Court’s Cynical Use of Free Speech to Allow Discrimination

In many ways, the Supreme Court’s ruling upholding the right of a Colorado web designer to refuse to do business with a same-sex couple is the most insidious of the Roberts Court’s recent string of far-right decisions overturning protections for minorities. Justice Neil Gorsuch, writing for a 6-3 Court, framed the case as being entirely about free speech—in this case the freedom of the web designer, Lorie Smith, not to tacitly support same-sex marriage.

As Gorsuch wrote in his majority ruling, Smith in fact has not yet even offered the service of designing websites for weddings, but “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.” According to Gorsuch, “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.’”

Thus the Colorado statute protecting the rights of sexual minorities to have access to business services on a nondiscriminatory basis is unconstitutional. And in similar cases, claims that religious or other personal principles permit discrimination are presumably constitutionally protected as a form of free speech.

To say that this is the mother of all slippery slopes would be an understatement. Suppose my religious principles cause me to view Muslims as agents of Satan, or Jews as Christ-killers. Suppose serving African Americans in my restaurant or hotel or barbershop associates me with people who make me uncomfortable. Under the Gorsuch doctrine, this sort of discrimination is perfectly permissible, and it opens the floodgates to other such claims.

At bottom, Gorsuch uses free-speech claims to trump the public-accommodation protections of the 1964 Civil Rights Act, which have been repeatedly held to be constitutional. The only reason that LGBTQ people were not explicitly included in the 1964 act was because the public and Congress were not yet ready to view gays and lesbians as people with rights. Women were added to the 1964 legislation at the last minute by opponents, as a cynical tactic to sink it. The tactic backfired. Since 1964, as large majorities of Americans (and the Supreme Court) have accepted same-sex marriage, most states have legislated Colorado-style protections making the rights of LGBTQ people explicit.

Justice Sotomayor, in dissent, put it well: “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.” She added, “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.”

The claim that the supposed incursion on the “speech” of someone who objects to serving a class of people trumps the rights of such people to receive the same services as others is a tortured construction of free speech. The Supreme Court, not for the first time, is now at the heart of the constitutional crisis afflicting this republic. The struggle for justice will go on.