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In 303 Creative LLC v. Elenis, the United States Supreme Court ruled that Colorado\u0027s Anti-Discrimination Act\u0027s prohibition of discrimination on the basis of sexual orientation violated the First Amendment rights of Lorie Smith, a website designer who refused to make wedding websites for same-sex couples. This Article argues that the Court\u0027s ruling rested on a vision of state control over speech that was divorced from the law before it. Using this framing of the law to conjure up inapplicable hypothetical scenarios of state-mandated expression, the Court found in Smith\u0027s favor. And yet, in responding to the dissent\u0027s concerns that the Court\u0027s logic could be employed to justify discrimination in a host of additional circumstances, such as interracial marriages, the Court dodged, asserting that those weren\u0027t the facts before the Court.
I parse out the errors in the Court\u0027s reasoning and demonstrate why its assurances of a limited holding are groundless. The logic the Court employs in 303 Creative may extend to a host of cases, including interracial marriages, any case in which a business argues that its goods or services are expressive, and, potentially, to cases involving free exercise claims by individuals and businesses seeking to discriminate on religious grounds.
In the face of these potential consequences, I propose two strategies for limiting 303 Creative\u0027s impact. The first proposes a more restrictive approach to First Amendment claims when businesses seek to discriminate against members of suspect classes identified in the Court\u0027s Equal Protection jurisprudence. But this approach carries a risk of stagnation in a nation of diverse prejudices, as the Court has proven loathe to identify new suspect classes. This leads to an alternate approach. Drawing on Jamal Greene\u0027s scholarship, I propose that courts engage in proportional analysis of competing rights claims. Rather than the standard approach of maximizing the rights claims of one side of a dispute and minimizing other\u0027s, courts should weigh the interests of each against each other. Doing so may rein in the absolutist and overly abstract reasoning on display in the Court\u0027s 303 Creative opinion, and encourage more measured and realistic discussion of rights in future cases

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Digital Commons at St. Mary's University Faculty Articles School of Law Faculty Scholarship 2024 Public Accommodations Laws, Free Speech Challenges, and Limiting Principles in the Wake of 303 Creative Michael L. Smith Follow this and additional works at: https://commons.stmarytx.edu/facarticles  Part of the Civil Rights and Discrimination Commons, Constitutional Law Commons, and the First Amendment Commons Public Accommodations Laws, Free SpeechChallenges, and Limiting Principles in the Wake of303 CreativeMichael L. Smith*TABLE OF CONTENTSAbstract ........................................................................................ 566Introduction ..................................................................................5661. 303 Creative: The Case, Its Context, and Aftermath ................... 570A. The Context: Colorado's Anti-Discrimination Act ............... 570B. The Court's Ruling in 303 Creative ...................................... 572C. Reactions to 303 Creative...................................................... 576II. The Court's Argument from Contrived Hypotheticals................. 580III. The Implications of 303 Creative: More Discrimination.............585A. Unconvincing Arguments Regarding Limitations.................586B. Avenues for Further Discrimination ...................................... 5881. Extending 303 Creative's Logic toRacial Discrimination...................................................... 5892. Broad Formulations of "Expressive Conduct"................ 5903. Discrimination on the Basis of Religious Exercise......... 593IV. Constitutionally Suspect Classes: A Limiting Principle?........ . .. . .598V. A Middle Ground: Taking a Proportional Approach ...................605A. The Problem of Categorical Rights Claims ...........................606B. Categorical Rights Claims in the Court's PublicAccommodations Cases.........................................................611C. An Alternative: Proportionality .............................................615Conclusion.................................................................................... 623Copyright 2024, by MICHAEL L. SMrrH.* Assistant Professor of Law, St. Mary's University School of Law. Theauthor thanks David Dittfurth, Alex Loehndorf, and Eric Segall for comments onan earlier draft.ABSTRACTIn 303 Creative LLC v. Elenis, the United States Supreme Court ruledthat Colorado's Anti-Discrimination Act's prohibition of discriminationon the basis of sexual orientation violated the First Amendment rights ofLorie Smith, a website designer who refused to make wedding websitesfor same-sex couples. This Article argues that the Court's ruling rested ona vision of state control over speech that was divorced from the law beforeit. Using this framing of the law to conjure up inapplicable hypotheticalscenarios of state-mandated expression, the Court found in Smith's favor.And yet, in responding to the dissent's concerns that the Court's logiccould be employed to justify discrimination in a host of additionalcircumstances, such as interracial marriages, the Court dodged, assertingthat those weren't the facts before the Court.I parse out the errors in the Court's reasoning and demonstrate why itsassurances of a limited holding are groundless. The logic the Courtemploys in 303 Creative may extend to a host of cases, includinginterracial marriages, any case in which a business argues that its goods orservices are expressive, and, potentially, to cases involving free exerciseclaims by individuals and businesses seeking to discriminate on religiousgrounds.In the face of these potential consequences, I propose two strategiesfor limiting 303 Creative's impact. The first proposes a more restrictiveapproach to First Amendment claims when businesses seek to discriminateagainst members of suspect classes identified in the Court's EqualProtection jurisprudence. But this approach carries a risk of stagnation ina nation of diverse prejudices, as the Court has proven loathe to identifynew suspect classes. This leads to an alternate approach. Drawing on JamalGreene's scholarship, I propose that courts engage in proportional analysisof competing rights claims. Rather than the standard approach ofmaximizing the rights claims of one side of a dispute and minimizingother's, courts should weigh the interests of each against each other. Doingso may rein in the absolutist and overly abstract reasoning on display inthe Court's 303 Creative opinion, and encourage more measured andrealistic discussion of rights in future case.INTRODUCTIONOn the last day of the United States Supreme Court's October 2022term, the Court issued its opinion in 303 Creative LLC v. Elenis.1Colorado's Anti-Discrimination Act prohibited most businesses fromrefusing to provide "services to any customer based on his race, creed,disability, sexual orientation, or other statutorily enumerated trait." 2 Awebsite developer, Lorie Smith, challenged the law, stating that she did1. See 303 Creative LLC v. Elenis, 600 U.S. 570 (2023).2. Id. at 581.PUBLIC ACCOMMODATIONS LAWSnot intend to create wedding websites for same-sex couples, and claimedthat the Anti-Discrimination Act infringed upon her First Amendmentright to free speech.3 On June 30, 2023, the Court ruled in Smith's favor,holding that Colorado's Anti-Discrimination Act put Smith in a positionwhere "she must either speak as the State demands or face sanctions forexpressing her own beliefs."4 The Court asserted that a decision to thecontrary would permit the government o "compel anyone who speaks forpay on a given topic to accept all commissions on that same topic-nomatter the underlying message-if the topic somehow implicates acustomer's statutorily protected trait."5 Accordingly, the Court concludedthat applying Colorado's Anti-Discrimination Act to penalize Smith'srefusal to serve same-sex couples violated the First Amendment.6The Court claimed that its holding was limited. Acknowledging thatnumerous states had passed laws prohibiting discrimination on the basisof sexual orientation, the Court stated that these states could continue toenforce those laws so long as their enforcement did not implicate the FirstAmendment.7 The Court took issue with Justice Sotomayor's dissent, inwhich she argued that the majority's logic opened up the possibility ofsuccessful First Amendment challenges in a wide range of contexts, suchas cases involving services for interracial couples who hope to marry.8 Inresponse, the Court stated that "those cases are not this case" andemphasized that the parties had stipulated that Smith's conduct in creatingwedding websites would be expressive.9Reactions to the ruling were heated. Critics accused the Court ofundermining vital protections against discrimination on the basis of sexualorientation and warned that the Court's logic could extend to instances ofinterracial marriage and other forms of sexual orientation, racial, and sexdiscrimination.10 In response, commentators argued that the Court's ruling3. See id. at 579.4. Id. at 588.5. Id.6. Id. at 589.7. See id. at 591.8. See id. at 636-39 (Sotomayor, J., dissenting).9. Id. at 599.10. See Aaron Tang, The Supreme Court Has Opened the Door toDiscrimination. Here's How States Can Slam It Shut, N.Y. TIMEs (July 1, 2023),https://www.nytimes.com/2023/07/01 opinion/supreme-court-gay-303-creative.html [https://perma.cc/W68G-3WPA]; Elie Mystal, The Supreme Court HasKicked the Door Wide Open to Jim Crow-Style Bigotry, TiHE NATION (July 3,2023), https://www.thenation.com/article/politics/supreme-court-303-creative-decision-mystal/ [https://perma.cc/52YJ-7T37].2024] 567LOUISIANA LAW REVIEWwas limited and that most forms of discrimination on the basis of sexualorientation could be prohibited without implicating the FirstAmendment."This Article begins by parsing through the Court's analysis in 303Creative. Part II begins with a brief summary of the relevant context,including the Court's earlier punting of a similar challenge to Colorado'sAnti-Discrimination Act in Masterpiece Cakeshop, Ltd. v. Colorado CivilRights Commission." After summarizing the Court's reasoning and rulingin 303 Creative, including the interplay between the majority anddissenting opinions, I address the reactions to the case, including concernsthat the ruling may pose a significant threat to public accommodationslaws, and assurances that the ruling is limited.13Part III, takes a closer look at how the Court reached its decision bydigging into its framing of Smith's rights claims and how the Courtclaimed her rights were threatened by Colorado's Anti-DiscriminationAct. I argue that the Court, relying on its precedent and priorcharacterizations of public accommodations laws, ended up deciding thecase based on a contrived set of hypothetical concerns that had no basis inthe law before the Court. These concerns, including the notion that aMuslim filmmaker may be forced to produce a Zionist film, or that a gaywedding website designer would be forced to develop a site critiquingsame-sex marriage, could only come to pass under a dramatically differentform of public accommodations law that identified protected classes basedon the content of their expression, rather than characteristics like race, sex,or sexual orientation. Such hypothetical aws would face swift and likelyfatal scrutiny as content-based restrictions on speech, meaning that11. See William Dailey, The Supreme Court got it right on free speech andaccommodating our LGBT neighbors, AM. MAG. (July 10, 2023),https://www.americamagazine.org/politics-society/2023/07/10/303-creative-supreme-court-lgbt-weddings-compelled-speech-245663[https://perma.cc/RTG8-Y7UP]; Gerard Baker, The Supreme Court DeclaresIndependence, WALL ST. J. (July 3, 2023, 2:06 PM), https://www.wsj.com/articles/the-supreme-court-declares-independence-3 03-student-loan-racial-preferences-roberts-71859d37 [https://perma.cc/FZT8-D97E].12. Masterpiece Cakeshop, Ltd. v. Colo. Civ. Rts. Comm'n, 584 U.S. 617(2018).13. I do not address reactions critiquing the opinion on standing grounds, oron the basis that the case was based on invented facts. While these reactions areworth noting, they are tangential to the points I make here, and I therefore excludethem in the interest of space and focus. For more on this dimension of thediscourse, see Richard M. Re, Does the Discourse on 303 Creative Portend aStanding Realignment? 99 NOTRE DAME L. REV. REFLECTION (forthcoming2023).[Vol. 84568PUBLIC ACCOMMODATIONS LAWShypothetical challenges such as those the Court considered would nevercome to pass. Accordingly, the Court's reasoning draws on a set of flawedassumptions.And yet, the opinion has been issued and we must parse through itsaftermath. Part IV digs into the implications of 303 Creative. The Court'sassurances that its opinion is limited ring hollow due to its failure toacknowledge that the logic of its ruling may be applied to different factsin future cases. In the face of concerns over plaintiffs raising FirstAmendment objections to providing wedding services to interracialcouples, for instance, the Court merely asserted that those facts weren'tbefore it." As for the difficult questions the case will raise over whatbusiness activities count as expressive conduct and what activities do not,the Court sidestepped again-emphasizing that the parties had stipulatedthat the conduct at issue was expressive.Therefore, the Court dodges the potentially significant and disruptiveimplications of its ruling. As Justice Sotomayor flags in her dissent,nothing in the Court's logic prevents the same objection from being raisedby a wedding vendor who refuses to serve interracial couples.15 Broadformulations of "expressive conduct" may pave the way for challengesagainst anti-discrimination laws for a host of alternate business practices.And the prospect of religious challenges to public accommodationsremains on the horizon-raising the possibility of undoing the expressiveconduct limitation on the 303 Creative ruling.With the Court dodging the difficult question of how to limit its rulinggoing forward, I turn to two possibilities. In Part V, I discuss what I suspectis the most likely outcome: the Court's reliance on suspect classesidentified in its prior equal protection cases to limit First Amendmentchallenges to public accommodations statutes. So long as statutes arelimited to prohibit discrimination against constitutionally recognizedsuspect classes, states have a constitutional hook to justify their laws-giving them a stronger argument against constitutional challenges. Suchan approach raises a host of questions, several of which I identify andattempt to answer. While I view this as the Court's most likely means oflimiting the implications of 303 Creative, it's by no means a guaranteedoutcome. I also argue that this approach is undesirable because of theCourt's inflexible approach to suspect classes, particularly its failure toidentify new suspect classes beyond race, sex, national origin, parent's14. 303 Creative LLC v. Elenis, 600 U.S. 570, 598 (2023).15. Id. at 638 (Sotomayor, J., dissenting).2024] 569LOUISIANA LAW REVIEWmarital status, and citizenship.16 Tethering statutory discriminationprotections to constitutionally protected classes risks stagnation and failsto address a broad range of prejudices.Part VI explores an alternative in which courts engage in theproportional analysis of rights claims. Drawing on Jamal Greene'sdistinction between categorical and proportional rights analysis, I arguethat 303 Creative and the Court's public accommodations cases leadingup to it exemplify the winner-take-all, categorical approach to rightsdisputes that Greene critiques. Such an approach creates acounterproductive, confusing, overly adversarial environment toadjudicate claims between parties, often leading courts to find in favor ofone party at the expense of ruling that any opposing rights claims areentirely without basis.'7 I argue that when parties inevitably invoke 303Creative to transform their discriminatory conduct into constitutionallyprotected free speech, a balancing approach that accounts for interests onall sides, as well as the intricacies of the parties' speech claims, ispreferable to the overly abstract, absolutist approach the 303 CreativeCourt employed.1. 303 CREATIVE: THE CASE, ITS CONTEXT, AND AFTERMATHA. The Context: Colorado's Anti-Discrimination ActColorado's Anti-Discrimination Act (the Act) is set forth in Section24-34-601 of its state code. The Act prohibits places of publicaccommodation from engaging in discriminatory conduct, including therefusal to provide "the full and equal enjoyment of the goods, services,facilities, privileges, advantages, or accommodations" to individuals orgroups on account of their "disability, race, creed, color, sex, sexualorientation, gender identity, gender expression, marital status, nationalorigin, or ancestry."18 As for "place[s] of public accommodation," theyinclude "any place of business engaged in any sales to the public and anyplace offering services, facilities, privileges, advantages, oraccommodations to the public."'9 The Act also contains some exceptions,exempting churches and other religious buildings from the definition of16. See Kenji Yoshino, The New Equal Protection, 124 HARV. L. REv. 747,748 (2011).17. See generally Jamal Greene, Foreword: Rights as Trumps?, 132 HARV.L. REv. 28 (2018); JAMAL GREENE, How RIGHTS WENT WRONG: WHY OUROBSESSION WITH RIGHTS IS TEARING AMERICA APART 56-57 (2021).18. COLO. REV. STAT. § 24-34-601(2)(a) (2024).19. Id. § 24-34-601(1).[Vol. 84570PUBLIC ACCOMMODATIONS LAWS"places of public accommodation," and allowing sex-based restrictionswith bona fide relationships to the goods and services a covered businessprovides.2 0Colorado's Anti-Discrimination Act is not unusual, as many stateshave passed similar laws. All but five states-Alabama, Georgia,Mississippi, North Carolina, and Texas-have passed publicaccommodations laws that prohibit discrimination on some ground beyonddisability.2 1 All states with public accommodations laws "prohibitdiscrimination on the grounds of race, gender, ancestry and religion."22Twenty-five of these states prohibit discrimination on the basis of sexualorientation, 24 prohibit discrimination based on gender identity, 20prohibit discrimination based on age, and 18 prohibit discrimination basedon marital status.2 3Colorado's law faced an earlier challenge that made its way to theUnited States Supreme Court in Masterpiece Cakeshop, Ltd. v. ColoradoCivil Rights Commission.24 Jack Phillips, the owner of a bakery,Masterpiece Cakeshop, was a "devout Christian," who believed that"'God's intention for marriage from the beginning of history is that it isand should be the union of one man and one woman."'25 Phillips believedthat "creating a wedding cake for a same-sex wedding would be equivalentto participating in a celebration that is contrary to his own most deeplyheld beliefs."26 Based on these beliefs, Phillips refused to make a cake fora same-sex couple, who then filed a discrimination complaint againstMasterpiece Cakeshop and Phillips.27Rather than engaging with the broader question of whether Phillips'sfree speech and free exercise rights trumped Colorado's protection of gaypeople and others from discrimination, the Court punted.28 It held that20. Id. § 24-34-601(1), (3).21. See State Public Accommodation Laws, NAT'L CONF. OF STATE LEG.,https://www.ncsl.org/civil-and-criminal-justice/state-public-accommodation-laws [https://perma.cc/Z9R2-46HU] (updated June 25, 2021).22. Id.23. Id.24. See Masterpiece Cakeshop, Ltd. v. Colo. Civ. Rts. Comm'n, 584 U.S. 617(2018).25. Id. at 626.26. Id.27. See id. at 626-28.28. See Mark R. Killenbeck, Pandora's Cake, 72 ARK. L. REV. 769, 775(2020) ("As indicated, the Masterpiece Cakeshop Court punted: it did not reachthe merits of the two constitutional issues posed, free exercise and compelledspeech").2024] 57 1LOUISIANA LAW REVIEWColorado's law had not been enforced in "neutral and respectful" manner,and that Colorado's Civil Rights Commission had treated Phillips and hisclaims with hostility.29 Accordingly, the Court avoided ruling on whetherColorado's Anti-Discrimination Act itself infringed on Phillips's religiousfreedom-instead focusing on the biased enforcement of that law whichwarranted strict First Amendment scrutiny.30Colorado could not overcome that scrutiny, and the Court held thatPhillips had been denied his right to "a neutral decisionmaker who wouldgive full and fair consideration to his religious objection."3 1 Because theproblem the Court identified arose from the enforcement of that law ratherthan the law itself, the Anti-Discrimination Act remained in place-at leastuntil the next challenge came along in the form of a website designerseeking to expand her business.B. The Court's Ruling in 303 CreativeIn 303 Creative LLC v. Elenis, Lorie Smith ran a business, 303Creative LLC, which engaged in "website and graphic design, marketingadvice, and social media management services."3 2 She decided to expandher business to offer services for couples "seeking websites for theirweddings."33 This service, she envisioned, would "provide couples withtext, graphic arts, and videos" to describe their unique stories-includinghow the couples met, their backgrounds, families, plans, and weddingdetails.34Justice Gorsuch, writing for the Court, characterized Colorado's Anti-Discrimination Act as prohibiting businesses "from engaging indiscrimination when they sell goods and services to the public."35 WhileSmith had generally provided website and graphic design services tocustomers "regardless of their race, creed, sex, or sexual orientation," herplan to expand into the wedding website business posed a problem.36Smith was concerned that Colorado's Anti-Discrimination Act would29. See Masterpiece Cakeshop, 584 U.S. at 634.30. See id. at 638. See also Church of Lukumi Babalu Aye, Inc. v. City ofHialeah, 508 U.S. 520, 546 (1993) (holding that non-neutral laws, or laws that arenot of general application "must undergo the most rigorous of scrutiny," whichthe court then states is strict scrutiny).31. Masterpiece Cakeshop, 584 U.S. at 640.32. 303 Creative LLC v. Elenis, 600 U.S. 570, 579 (2023).33. Id.34. Id.35. Id. at 577-78.36. See id. at 579.[Vol. 84572PUBLIC ACCOMMODATIONS LAWSforce her to "convey messages inconsistent with her belief that marriageshould be reserved to unions between one man and one woman."37 To putit another way, Smith wanted to get into the wedding website business butdid not want to provide those wedding website services for customers whowere gay. She argued that Colorado's law prohibiting her fromdiscriminating against those gay customers would infringe upon her FirstAmendment right to free speech.38The Court noted that "approximately half the States have laws likeColorado's that expressly prohibit discrimination on the basis of sexualorientation," laws which the court described as "'unexceptional,"' as statescould "'protect gay persons, just as [they] can protect other classes ofindividuals, in acquiring whatever products and services they choose onthe same terms and conditions as are offered to other members of thepublic."'39 The Court reasoned that these laws raised no constitutionalconcerns so long as they applied only to "'goods and services that no onecould argue implicate the First Amendment."'40The Court concluded that Smith sought to engage in speech throughher business of creating websites-noting that she planned to includeclients' unique stories, along with artwork and quotes from each couple.41As for Colorado's Anti-Discrimination Act, that law sought to "compelher to create custom websites celebrating other marriages she does not"endorse.4 2 Forcing Smith to express a view contrary to her beliefs was"more than enough[] to represent an impermissible abridgment of the FirstAmendment's right to speak freely." 43The Court wasn't done here, though, and invited consideration of"what a contrary approach would mean."4 As the Court saw things:Under Colorado's logic, the government may compel anyone whospeaks for pay on a given topic to accept all commissions on thatsame topic-no matter the underlying message-if the topicsomehow implicates a customer's statutorily protected trait. Takenseriously, that principle would allow the government to force allmanner of artists, speechwriters, and others whose services37. Id.38. See id.39. Id. at 590-92 (quoting Masterpiece Cakeshop, Ltd. v. Colo. Civ. Rts.Comm'n, 584 U.S. 617,632 (2018)).40. Id. at 592 (quoting Masterpiece Cakeshop, 584 U.S. at 632).41. See id. at 588.42. Id. at 577.43. Id at 588.44. Id.2024] 573LOUISIANA LAW REVIEWinvolve speech to speak what they do not believe on pain ofpenalty. The government could require "an unwilling Muslimmovie director to make a film with a Zionist message," or "anatheist muralist to accept a commission celebrating Evangelicalzeal," so long as they would make films or murals for othermembers of the public with different messages. Equally, thegovernment could force a male website designer married toanother man to design websites for an organization that advocatesagainst same-sex marriage. Countless other creative professionals,too, could be forced to choose between remaining silent,producing speech that violates their beliefs, or speaking theirminds and incurring sanctions for doing so.45Colorado argued that the burden Smith faced was minimal, as all shewould need to do is "repurpose websites she will create to celebratemarriages she does endorse for marriages she does not," and that the caseinvolved only an incidental restriction on Smith's speech resulting fromthe "sale of an ordinary commercial product."46 The Court took issue withthis argument-not so much on its merits, but rather on proceduralgrounds, stating that it was "difficult to square" with Colorado'sstipulation that Smith did not sell ordinary commercial goods, but insteadgoods that were "customized and tailored" for couples, and that thewebsites would be "expressive in nature" and tell couples' "unique lovestor[ies]."4' It did not matter that Smith accepted pay for this speech-heractivities in creating the website was still expressive conduct which theCourt compared with historical works of literature and art that had alsobeen "created with an expectation of compensation."4 8Justice Sotomayor wrote a dissenting opinion in which Justices Kaganand Jackson joined.49 Sotomayor argued that the Court "for the first timein its history, grants a business open to the public a constitutional right torefuse to serve members of a protected class."" Sotomayor delved into thepurpose of the Anti-Discrimination Act, arguing that it, and other publicaccommodations laws, had two core purposes: (1) ensuring "equal accessto publicly available goods and services" and (2) ensuring "equal dignityin the common market" by preventing the "humiliation, frustration, andembarrassment that a person must surely feel when he is told that he is45. Id. at 588-90 (internal citations omitted).46. Id. at 593.47. Id. (internal quotations omitted).48. See id.49. Id. at 604 (Sotomayor, J., dissenting).50. Id.574 [Vol. 84PUBLIC ACCOMMODATIONS LAWSunacceptable as a member of the public because of his [social identity]." 5 1The idea of these public accommodations "thus embodies a simple, butpowerful, social contract: A business that chooses to sell to the publicassumes a duty to serve the public without unjust discrimination."2Delving into historic legal treatment of public accommodations law,Sotomayor argued that this duty to serve the public without unjustdiscrimination applied not only to businesses selling necessities or thosewith monopolies, but to "any business that holds itself out as ready to servethe public."53As for Smith's and 303 Creative's First Amendment claims,Sotomayor argued that the First Amendment did not entitle her "to aspecial exemption from a state law that simply requires them to serve allmembers of the public on equal terms."" Sotomayor noted that the FirstAmendment does not "'prevent restrictions directed at commerce orconduct from imposing incidental burdens on speech,"' noting thatCongress's ability to prevent employment discrimination based on racewould require employers to take down signs reading "White ApplicantsOnly" even though those signs constituted speech by the employer."Sotomayor argued that this resolved the present case, and noted that Smithcould remain free to "advocate the idea that same-sex marriage betraysGod's laws" in her private capacity-but not to the extent that she heldherself out as providing "goods or services to the public at large."56Sotomayor argued that the Court's conclusion to the contrary wouldhave profound, negative impacts:By issuing this new license to discriminate in a case brought by acompany that seeks to deny same-sex couples the full and equalenjoyment of its services, the immediate, symbolic effect of thedecision is to mark gays and lesbians for second-class status. Inthis way, the decision itself inflicts a kind of stigmatic harm, ontop of any harm caused by denials of service. The opinion of theCourt is, quite literally, a notice that reads: "Some services may51. Id. at 607 (internal quotations omitted).52. Id. at 609 (Sotomayor, J., dissenting) (citing Joseph William Singer, NoRight to Exclude: Public Accommodations and Private Property, 90 Nw. U. L.REv. 1283, 1298 (1996)).53. See id. at 608-15 (Sotomayor, J., dissenting).54. Id. at 624 (Sotomayor, J., dissenting).55. Id. (Sotomayor, J., dissenting) (quoting Sorrell v. IMS Health Inc., 564U.S. 552, 567 (2011).56. Id. at 628-29 (Sotomayor, J., dissenting).2024] 57 5LOUISIANA LAW REVIEWbe denied to same-sex couples."57Sotomayor argued that the harm this message would cause to LGBTQindividuals would be compounded by the "slew of anti-LGBT laws [that]have been passed in some parts of the country," which sent the message ofdesire to harm this politically unpopular group.58 Sotomayor also notedthat the Court's logic "cannot be limited to discrimination on the basis ofsexual orientation or gender identity," arguing that "[a] website designercould equally refuse to create a wedding website for an interracial couple,for example."59 Moreover, many more businesses could be implicated bythe ruling, such as stationery companies refusing to sell birthannouncements for disabled couples, retail stores refusing to take familyportraits of "non-traditional" families, and more.60In response to these concerns about its ruling's implications, the Courtclaimed that the dissent spent "much of its time adrift on a sea ofhypotheticals," but "those cases are not this case."6 1 The Court recognizedthat "determining what qualifies as expressive activity protected by theFirst Amendment can sometimes raise difficult questions," but no suchcomplications existed in the present case due to the parties' stipulations.62While the Court had engaged in similar hypothetical reasoning only fivepages earlier in the same opinion-and even returned to this reasoningimmediately after critiquing the dissent's overreliance on hypotheticals-it deemed this style of argument unconvincing to the extent it suggestedan outcome different than that the Court was determined to reach: thatColorado was constitutionally prohibited from barring Smith and 303Creative from refusing to provide gay couples with wedding websiteservices.63C. Reactions to 303 Creative303 Creative was one of the more high-profile decisions in the Court'sOctober 2022 term. As tends to be the case with such decisions, the rulingwas delayed until the end of the Court's term-indeed, until the last dayof June. It followed on the immediate heels of is ruling in Students for FairAdmissions v. Harvard University, in which the Court struck down57. Id. at 637 (Sotomayor, J., dissenting).58. Id.59. Id. at 638 (Sotomayor, J., dissenting).60. Id.61. Id. at 599.62. Id.63. See id. at 588-90, 602-03.[Vol. 84576PUBLIC ACCOMMODATIONS LAWSmultiple affirmative action programs, and was accompanied by Biden v.Nebraska in which the Court struck down the Biden administration'sstudent loan forgiveness program.65 Things were already heated in thehours leading up to the Court's ruling.66Reactions to the decision were similarly acute. The BidenAdministration described the ruling as a "disappointing decision" that"undermines that basic truth" that "no person should face discriminationsimply because of who they are or who they love." 67 Senate MajorityLeader Chuck Schumer characterized the ruling as "a giant step backwardfor human rights and equal protection in the United States."68 The day afterthe ruling, Aaron Tang argued that the Court's ruling was "legallydubious" that "threaten[ed] to obliterate a vital tool in efforts to protect theL.G.B.T.Q. community at a time when it faces hatred and violence."69 ElieMystal argued that the decision was a victory for bigots, that people would"suffer an assault on their human dignity" as a result of the decision-evenin cases where expressive conduct was not at issue-and that "you'd be a64. See Students for Fair Admissions, Inc. v. President & Fellows of Haiv.Coll., 600 U.S. 181 (2023).65. See Biden v. Nebraska., 143 S. Ct. 2355 (2023).66. See Cleve R. Wootson Jr., Biden sharply criticizes Supreme Court afteraffirmative action case, WASH. POST (June 29, 2023, 6:17 PM), https://www.washingtonpost.com/politics/2023/06/29/biden-blasts-supreme-court-affirmative-action/ [https://perma.cc/HUW6-3TKR] (reporting on President Biden's statementthat "the current Supreme Court has done 'more to unravel basic rights and basicdecisions than any court in recent history"'); Rich Lowry, The Left's Campaignto Destroy the Supreme Court, POLITICO, https://www.politico.com/news/magazine/2023/06/29/fake-crisis-supreme-court-00104106 [https://perma.cc/4895-KZAT] (updated June 29, 2023, 2:18 PM) (claiming that the Court was on the "brinkof destruction" as a result of a campaign by the political left to attack the Court'slegitimacy).67. See Statement from President Joe Biden on Supreme Court Decision in 303Creative LLC v. Elenis, WHITE HOUSE (June 30, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/06/30/statement-from-presidentjoe-biden-on-supreme-court-decision-in-303-creative-Ilc-v-elenis/ [https://perma.cc/6YCY-ZEK3].68. Majority Leader Schumer Statement On Supreme Court DecisionDenying Equal Protection To LGBTQ+ Americans, SENATE DEMOCRATICCAUCUS (June 30, 2023), https://www.democrats.senate.gov/newsroom/press-releases/maj ority-leader-schumer-statement-on-supreme-court-decision-denying-equal-protection-to-lgbtq-americans [https://perma.cc/Q4YX-7NAA].69. Tang, supra note 10.2024] 577LOUISIANA LAW REVIEWfool to think that these indignities will be limited to the LGBTQcommunity and their wedding celebrations."70Defenders of the Court's ruling spoke out as well. Gerard Baker of theWall Street Journal proclaimed that "Fourth of July celebrations arrivewith special resonance for conservatives this year," claiming that theruling in 303 Creative, along with the Court's decisions on affirmativeaction and student loans, "struck solid blows for the principles and valuesthat helped create the U.S. in the first place."7 ' The Thomas More Societynoted that the 303 Creative decision provided strong support for its ownlitigation on behalf of a California baker who had refused to make awedding cake for a gay couple.72Attorneys and other officers of the Alliance Defending Freedom-thegroup that had represented Smith in the 303 Creative case-took to avariety of news outlets to proclaim the virtues of their cause. Bryan Neihart(an attorney associated with the Alliance Defending Freedom) argued thatthe decision would prevent the government from dictating what peoplecould say, and claimed that the decision "encourages human flourishingand a healthy, diverse society" and "allows people to pursue truth."73Neihard claimed that the decision would prevent government compulsionof all manners of speech, including a requirement that people can only usethe term "literally" using the government's preferred meaning (a meaningthat Neihart doesn't specify in his hypothetical).7 4 Lathan Watts, VicePresident for Public Affairs at the Alliance Defending Freedom, arguedthat the case was "a victory for all Americans" that reaffirmed the70. Elie Mystal, The Supreme Court Has Kicked the Door Wide Open to JimCrow-Style Bigotry, THE NATION (July 3, 2023), https://www.thenation.com/article/politics/supreme-court-303-creative-decision-mystal/ [https://perma.cc/GV9H-GX5U].71. Baker, supra note 11.72. See Tom Ciesielka, US Supreme Court Decision Favoring 303 CreativeSolidifies Tastries Bakery Free Speech Win, THOMAS MORE Soc'Y (June 30,2023), https://www.thomasmoresociety.org/news/us-supreme-court-decision-favoring-303-creative-solidifies-tastries-bakery-free-speech-win [https://perma.cc/U7W4-Z2Y2].73. Bryan Neihart, The Supreme Court Issues a Superb Free-SpeechDecision - Literally, NAT'L REV. (June 30, 2023, 6:03 PM), https://www.nationalreview.com/2023/06/the-supreme-court-issues-a-superb-free-speech-decision-literally/ [https://perma.cc/D685-4ZTN].74. Id. How Neihart's strained "literally" hypothetical related to publicaccommodations laws remains unclear.[Vol. 84578PUBLIC ACCOMMODATIONS LAWS"bedrock principle: the government cannot force us to say something wedo not believe."75Kristen Waggoner (CEO of Alliance Defending Freedom) and ErinHawley (Senior Attorney with Alliance Defending Freedom) argued thatthe case was "a crucial victory for every American regardless of theirreligious, political, or ideological views" that upheld "a greatconstitutional tradition of valuing and protecting speech not for its contentbut because individual freedom of thought and mind is our most basicliberty." 76 They took care to distinguish this case from other denials ofpublic accommodations:The decision in 303 Creative rejects the dark days in our nation'shistory where people were refused service because of the color oftheir skin or the faith they profess. Federal and state public-accommodation laws will continue to apply to millions oftransactions every single day, ensuring that goods and services arenot denied to anyone. In short, nondiscrimination principlesremain firmly in place under the Supreme Court's decision.77Depending on who you ask, the 303 Creative ruling resurrects the"separate but equal" doctrine set forth in Plessy v. Ferguson,78 or a "winfor every American" that will "serve as a reminder to all governmentalbodies that they cannot force people to speak a message contrary to theirbeliefs."79 The 303 Creative dissenters raised the concern of expression-75. Lathan Watts, 303 Creative v. Elenis Is a Win for Everyone, RICOCHET(July 7, 2023), https://ricochet.com/1466171/303-creative-v-elenis-is-a-win-for-everyone/ [https://perma.cc/Q7Y9-98RE].76. Kristen Waggoner & Erin Hawley, Web designer's victory at SupremeCourt is free speech win for all, Fox NEWS (June 30, 2023, 11:23 AM),https://www.foxnews.com/opinion/web-designer-victory-supreme-court-free-speech-win-all [https://perma.cc/XAJ4-MQCQ].77. Id. For a demonstration of why this assurance is baseless, see infra PartsIV.A & IV.B.1.78. See Sabrina Haake, The Supreme Court's new "separate but equal"doctrine, SALON (July 8, 2023, 6:00 AM), https://www.salon.com/2023/07/08/the-new-separate-but-equal-doctrine/ [https://perma.cc/A4Q7-Q99D].79. See Nicole Hunt, Landmark Victory for Free Speech at the U.S. SupremeCourt, DAILY CITIZEN (June 30, 2023), https://dailycitizen.focusonthefamily.com/landmark-victory-for-free-speech-at-the-u-s-supreme-court/ [https://perma.cc/V739-XBNH].2024] 579LOUISIANA LAW REVIEWbased racial discrimination, which the majority dismissed as a fancifulhypothetical, despite its own reliance on fanciful hypotheticals.80II. THE COURT'S ARGUMENT FROM CONTRIVED HYPOTHETICALSDespite the 303 Creative Court's criticism of the dissenters' purportedoverreliance on hypotheticals, the Court itself was quick to turn to a similaranalysis in support of its own arguments. But before getting into thesehypotheticals and how the Court presented them, some table setting isrequired. In making its argument, the Court relied on three cases which itclaimed were analogous to Smith's situation.81The Court cited Hurley v. Irish-American Gay, Lesbian, and BisexualGroup of Boston, a case in which the private organizers of a St. Patrick'sDay parade refused the request of an organization of "gay, lesbian, andbisexual descendants of the Irish immigrants" to march in the parade to"express pride in their Irish heritage" and to demonstrate that some peoplewith Irish heritage were, in fact, gay, lesbian, and bisexual.82 The Courtheld that the parade organizers could exclude the organization and rejectedthe application of the State's public accommodations law to require theorganization's participation, reasoning that "this use of the State's powerviolates the fundamental rule of protection under the First Amendment,that a speaker has the autonomy to choose the content of his ownmessage."83 As the 303 Creative Court characterized the case:In Hurley, the Court found that Massachusetts impermissiblycompelled speech in violation of the First Amendment when itsought to force parade organizers to accept participants whowould "affec[t] the[ir] message."'The Court also cited Boy Scouts of America v. Dale, a case in whichthe Boy Scouts of America revoked the adult membership of an assistantscoutmaster, James Dale, because gay people were not allowed to bemembers of the Boy Scouts, prompting a suit by Dale in which he allegedthat this revocation violated New Jersey's public accommodations law.8580. See 303 Creative LLC v. Elenis, 600 U.S. 570, 588-90, 598-99 (2023);id. at 638-39 (Sotomayor, J., dissenting).81. Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557(1995); Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000); W. Va. State Bd. ofEduc. v. Barnette, 319 U.S. 624 (1943).82. Hurley, 515 U.S. at 561.83. Id. at 573.84. 303 Creative, 600 U.S. at 589 (quoting Hurley, 515 U.S. at 572).85. See Boy Scouts ofAm., 530 U.S. at 645.[Vol. 84580PUBLIC ACCOMMODATIONS LAWSThe Court found that the Boy Scouts "believes that homosexual conductis inconsistent with the values it seeks to instill in its youth members" andthat applying New Jersey law to require the Scouts to admit Dale wouldforce them to "propound a point of view contrary to its beliefs."8 6 I canvouch for the sensibility of such a claim, as I-in obtaining the rank ofEagle Scout-was not only required to recite the Scout Oath, tie a varietyof knots, and organize an extensive service project, but also required todiscuss at length why homosexuality was contrary to scouting practiceslike community service, preparedness, and respect for America and itsinstitutions.87 As the 303 Creative Court summarized:In Dale, the Court held that New Jersey intruded on the BoyScouts' First Amendment rights when it tried to require the groupto "propound a point of view contrary to its beliefs" by directingits membership choices.88Finally, the Court pulled out the big guns, drawing on the classic,beloved, and beautifully written West Virginia State Board of Educationv. Barnette.89 There, the petitioners, parents and children who wereJehovah's Witnesses, challenged a requirement that public school studentssalute the American Flag while stating the Pledge of Allegiance or facedisciplinary measures including expulsion, and the potential criminalprosecution of parents for their children's delinquency.90 Thisrequirement, the petitioners argued, would force them to expresssentiments contrary to their faith.91 Justice Robert Jackson, writing for the86. See id. at 654.87. Just kidding. While it's true that I obtained the rank of Eagle Scout andhad to recite the oath, tie knots, and organize a service project in order toaccomplish that undertaking-the remainder of this sentence is false.88. 303 Creative, 600 U.S. at 589 (quoting Boy Scouts of Am., 530 U.S. at654).89. Id. (citing W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 626-29(1943)). See also Genevieve Lakier, Not Such a Fixed Star After All: WestVirginia State Board of Education v. Barnette, and the Changing Meaning of theFirst Amendment Right Not to Speak, 13 FIU L. REv. 741, 741-42 (2019)(recognizing that there "are few 75-year old opinions that are as important tocontemporary free speech law as Justice Jackson's gorgeous opinion in WestVirginia State Board of Education v. Barnette," and-even more relevant to theoverall point of this Article-noting that the Barnette opinion's continuingrelevance demonstrates a "subtle but profound shift" from a "democracy-focusedFirst Amendment towards an autonomy-focused one").90. W. Va. State Bd ofEduc., 319 U.S. at 626-29.91. See id.5812024]LOUISIANA LAW REVIEWCourt, characterized the law as "a compulsion of students to declare abelief," and that doing so was contrary to the First Amendment,proclaiming that "[i]f there is any fixed star in our constitutionalconstellation, it is that no official, high or petty, can prescribe what shallbe orthodox in politics, nationalism, religion, or other matters of opinionor force citizens to confess by word or act their faith therein."92 Jacksonfurther noted that the "very purpose of a Bill of Rights was to withdrawcertain subjects from the vicissitudes of political controversy, to placethem beyond the reach of majorities and officials and to establish them aslegal principles to be applied by the courts," and that the right to freespeech was one such protected right.93With this groundwork of precedent laid, the 303 Creative Courtanalogized the enforcement of Colorado's Anti-Discrimination Act to thelaws at issue in Hurley, Dale, and Barnette:Here, Colorado seeks to put Ms. Smith to a similar choice: If shewishes to speak, she must either speak as the State demands orface sanctions for expressing her own beliefs, sanctions that mayinclude compulsory participation in "remedial ... training," filingperiodic compliance reports as officials deem necessary, andpaying monetary fines. Under our precedents, that "is enough,"more than enough, to represent an impermissible abridgment ofthe First Amendment's right to speak freely."94With this foundation, it's no longer apparent that the Court isdiscussing public accommodations laws prohibiting discrimination againstcertain disadvantaged groups as it is discussing compulsion thatindividuals speak "as the State demands."95 This framing underlies theCourt's turn to hypotheticals. Claiming to describe "what a contraryapproach" would mean, the Court listed several hypothetical scenarios thatit claimed could come to pass:The government could require "an unwilling Muslim moviedirector to make a film with a Zionist message," or "an atheistmuralist to accept a commission celebrating Evangelical zeal," solong as they would make films or murals for other members of thepublic with different messages. Equally, the government could92. Id. at 631, 642.93. Id. at 638.94. 303 Creative, 600 U.S. at 589 (quoting Hurley v. Irish-Am. Gay, Lesbian& Bisexual Grp. of Bos., 515 U.S. 557, 574 (1995)) (internal citations omitted).95. See id.[Vol. 84582PUBLIC ACCOMMODATIONS LAWSforce a male website designer married to another man to designwebsites for an organization that advocates against same-sexmarriage. Countless other creative professionals, too, could beforced to choose between remaining silent, producing speech thatviolates their beliefs, or speaking their minds and incurringsanctions for doing so. As our precedents recognize, the FirstAmendment tolerates none of that.96Are these outcomes likely under Colorado's Anti-Discrimination Act?The Court does not explain how any application of the Act could give riseto these scenarios-likely because they have no basis in the law before theCourt. Indeed, each of these examples raise objections because of themessages conveyed by the pure speech at issue, rather than the identity ofthe consumer. The law that would require a director to make a film with aZionist message, a muralist to create an evangelical mural, or a gaywebsite developer to create a website that advocates against same-sexmessage would need to define protected classes by reference to theseexpressive positions. After all, it does not follow that these requests trackthe identity of the prospective customer, as a gay person could very wellrequest a website advocating against same-sex marriage and an atheist orMuslim person could seek to produce a Zionist film. Accordingly, the onlyway this hypothetical works without stereotypical assumptions about theprotected customers' status is to assume an anti-discrimination law thatcalls out particular content of speech.But public accommodations laws like the one at issue in 303 Creativedo not identify protected groups based on the content of their expression.Instead, they identify protected groups based on characteristics like sexualorientation, gender, nationality, religion, veteran status and other, non-expressive characteristics. This is a far cry from the hypotheticals theCourt sets forth.The Colorado law at issue in 303 Creative is one such law. Colorado'sAnti-Discrimination Act is one of 25 state public accommodations lawsthat prohibit discrimination on the basis of sexual orientation.97 Numerousother states prohibit discrimination on the basis of gender identity, maritalstatus, and age.98 And a few states prohibit discrimination on the basis ofveteran, military, and pregnancy status.99 None of these states createprotected classes on the basis of the content of the classes' speech orviews-there are no public accommodations laws that prohibit96. Id. at 589-90 (internal citations omitted).97. State Public Accommodation Laws, supra note 21.98. See id.99. See id.2024] 5 83LOUISIANA LAW REVIEWdiscrimination against customers on the basis of their views regardingZionism, evangelical Christianity, or opposition to same-sex marriage. Tobe sure, the Court claims that it is concerned about the prospect that "thegovernment may compel anyone who speaks for pay on a given topic toaccept all commissions on that same topic--no matter the underlyingmessage-if the topic somehow implicates a customer's statutorilyprotected trait." 100 But the Court's examples only fit into this category ifone assumes (incorrectly) that only people of a certain religion can expressZionist or evangelical views, or that only people of a certain sexualorientation can oppose same-sex marriage.'o'If such laws existed, they would likely face strong First Amendmentchallenges as content-based restrictions on speech. Rather than identifyingprohibited discrimination based on non-expressive characteristics likerace, sex, sexual orientation, nationality, religion, veteran status, or maritalstatus, these hypothetical laws the Court invokes would have to refer tothe content of speech by potential patrons of businesses. The laws wouldtherefore be content-based restrictions on speech-at least from theperspective of the businesses who would be required to provide goods orservices with customers who express certain legally defined views.Content-based speech restrictions typically must pass strict scrutiny tosurvive a First Amendment challenge.' This is distinct from theincidental restrictions on speech at issue in 303 Creative-restrictions thatresemble incidental limits on speech that result from laws governing thepermissible time, place, and manner of speech. First Amendment doctrineaccounts for these laws and subjects them to a lower level of scrutiny.1 0 3100. 303 Creative, 600 U.S. at 589.101. See, e.g., Tom Geoghegan, The gay people against gay marriage, BBCNEWS (June 11, 2013), https://www.bbc.com/news/magazine-22758434 [https://perma.cc/6PPZ-L5UT] (noting that some gay people remain opposed to same-sexmarriage despite laws permitting it, with some describing same-sex couples'adoption of the trappings of heterosexual marriage as "weird" and some lesbiansopposing marriage on feminist grounds).102. See Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015) ("Content-basedlaws-those that target speech based on its communicative content-arepresumptively unconstitutional and may be justified only if the governmentproves that hey are narrowly tailored to serve compelling state interests.").103. See Ward v. Rock Against Racism, 491 U.S. 781, 798-99 (1989) ("[W]ereaffirm today that a regulation of the time, place, or manner of protected speechmust be narrowly tailored to serve the government's legitimate, content-neutralinterests but that it need not be the least restrictive or least intrusive means ofdoing so. Rather, the requirement of narrow tailoring is satisfied 'so long as the ... regulation promotes a substantial government interest that would be achieved[Vol. 84584PUBLIC ACCOMMODATIONS LAWSDefenders of the decision make similar arguments. For example, RickClaybrook suggests that "all vendors who object to serving same-sexmarriages" are not discriminating "against sexual orientation," rather theyare "refusing to collaborate with a message."104 Claybrook compares thisscenario to a Black restaurateur who refuses "to cater a white supremacistorganization's banquet," asserting that the discrimination here "is notagainst whites as a class, but against the message of these particularwhites."105 This makes the same assumption that the Court's majoritymakes in its hypotheticals: that a same-sex wedding is equivalent to apolitical statement in favor of the institution of same-sex marriage.This closer look at the Court's hypotheticals proves them to be notonly distinct from Colorado's laws, but also unlikely to ever come aboutdue to their reliance on hypothetical, content-based publicaccommodations laws. This raises serious questions over both the Court'shypotheticals, as well as the arguments of those defending the 303Creative outcome who rely on similar concerns to claim that invalidationof public accommodations laws is, in certain cases, necessary.Even though the hypothetical arguments the 303 Creative Courtemploys in support of its argument have significant problems, the Courtseems to think they are enough to prove its point. With these questionableclaims and-as discussed in more detail below-the parties' stipulationsdoing a significant amount of the work, 303 Creative sets the stage forexpansive discriminatory practices fueled by First Amendment claims.III. THE IMPLICATIONS OF 303 CREATIVE: MORE DISCRIMINATIONWhile many states have public accommodations laws that prohibitdiscrimination against LGBTQ individuals, holes remain in theseprotections. While numerous states and localities prohibit discriminationon the basis of sexual orientation, several of these states have legislativecarveouts that permit religious exemptions.'06 303 Creative threatens totake things even further by creating a constitutionalized basis forindividuals and businesses to discriminate, no matter what laws are passedat the national, state, and local level. While the 303 Creative Court andsome commentators claim this is unlikely, this Part demonstrates whyless effectively absent the regulation."') (quoting United States v. Albertini, 472U.S. 675, 689 (1985)).104. Rick Claybrook, Speech by Association, L. & LIBERTY (July 25, 2023),https://lawliberty.org/speech-by-association/ [https://perma.cc/Q6Z2-CUV9].105. Id.106. See Elizabeth Sepper, The Role of Religion in State PublicAccommodations Laws, 60 ST. LoUIs U. L.J. 631, 635-36, 653-54, 657 (2016).2024] 5 85LOUISIANA LAW REVIEWthese claims are unconvincing, and details the potential discriminatoryoutcomes that may result from the Court's ruling.A. Unconvincing Arguments Regarding LimitationsIn 303 Creative, Justice Sotomayor raised a number of hypotheticalscenarios in her dissenting opinion:Although the consequences of today's decision might be mostpressing for the LGBT community, the decision's logic cannot belimited to discrimination on the basis of sexual orientation orgender identity. The decision threatens to balkanize the marketand to allow the exclusion of other groups from many services. Awebsite designer could equally refuse to create a wedding websitefor an interracial couple, for example. How quickly we forget thatopposition to interracial marriage was often because "'AlmightyGod ... did not intend for the races to mix."' Yet the reason fordiscrimination need not even be religious, as this case arises underthe Free Speech Clause. A stationer could refuse to sell a birthannouncement for a disabled couple because she opposes theirhaving a child. A large retail store could reserve its family portraitservices for "traditional" families. And so on.107The majority rejected these arguments, arguing that they were based onfacts that were not before the Court:Instead of addressing the parties' stipulations about the caseactually before us, the dissent spends much of its time adrift on asea of hypotheticals about photographers, stationers, and others,asking if they too provide expressive services covered by the FirstAmendment. But those cases are not this case. Doubtless,determining what qualifies as expressive activity protected by theFirst Amendment can sometimes raise difficult questions. But thiscase presents no complication of that kind. The parties havestipulated that Ms. Smith seeks to engage in expressive activity.And the Tenth Circuit has recognized her services involve "purespeech." Nothing the dissent says can alter this-nor can itdisplace the First Amendment protections that follow.108107. 303 Creative v. Elenis, 600 U.S. 570, 638-39 (2023) (Sotomayor, J.,dissenting) (internal citations omitted).108. Id. at 599 (internal citations omitted).5 86 [Vol. 84PUBLIC ACCOMMODATIONS LAWSOther commentators reflect the limits the Majority asserts apply to itsholding. Darpana Sheth, of the Foundation for Individual Rights inEducation (FIRE), asserts that "thanks to the culture wars," there are anumber of mistaken assumptions about the 303 Creative case and itsscope.109 Sheth asserts that the decision "does not open the door to wantondiscrimination in the provision of'goods and services" because the caseinvolved "a form of expression, which implicates the FirstAmendment." 0 Like the 303 Creative Majority, Sheth argues that manygoods and services will not implicate expressive conduct on behalf of thebusiness, and governments may continue to require the provision of theseservices to various defined protected classes."'Attempts to dismiss arguments about interracial marriage and otherexamples of potential discrimination are unconvincing. The Majority in303 Creative remained laser-focused on the case before it, noting that theparties stipulated that the case involved "pure speech" and that the casedid not involve the hypothetical discriminatory actions Sotomayordiscussed.1 2 The Majority asserted that no manner of hypotheticalreasoning or concern over expressive conduct changes the facts beforeit113it."But Sotomayor was not advancing a bizarre argument hat the force ofher legal arguments somehow alters the facts before the Court. Rather, sheargued about the negative implications the Majority's ruling was likely tohave and used those negative consequences to argue in favor of analternative outcome. Indeed, the majority engaged in similar, hypothetical-based reasoning earlier in its opinion where it warned that an alternateruling would lead to the government forcing muralists and filmmakers toproduce art with which they disagree.1 4 Even though these were not thefacts before the Court, both the majority and dissent recognized that thelogic of the Court's opinion may apply to future cases with differentfacts-so it is no response to simply assert that those facts are not those ofthe present case.A similar issue arose with the Court's response to the dissent's critiqueof the claim that the case is limited to only those situations where109. See Darpana Sheth, Myth-busting reactions to the Supreme Court'sdecision in 303 Creative v. Elenis, FIRE, https://www.thefire.org/news/myth-busting-reactions-supreme-courts-decision-303-creative-v-elenis [https://perma.cc/6JFJ-DBV6] (updated July 7, 2023).110. Id111. Id.112. See 303 Creative, 600 U.S. at 587.113. See id.114. See id. at 588-90.2024] 587LOUISIANA LAW REVIEWbusinesses' and individuals' goods and services constitute expressiveconduct."5 The Court was correct that the parties stipulated that theconduct at issue was expressive."16 The dissent's concern, however, wasnot with the present parties, but with future cases where businesses attemptto apply the label "expressive conduct" to all types of goods andservices.1 7 In those cases, there is no guarantee that the parties will simplystipulate away all dispute over the nature of whether the conduct at issueis expressive. Indeed, the fact that 303 Creative rested on suchcomprehensive and crucial stipulations likely makes it an exceptionallyeasy case, compared with future cases that may require litigation andargument over these stipulated facts."'B. Avenues for Further DiscriminationConcerns over the Roberts Court's reliance on the right to free speechto strike down hosts of government laws and regulations did not begin with303 Creative. Referring back to an era where the Court struck down swathsof government regulations on the basis of a right to liberty of contractoriginating in the Fourteenth Amendment, critics refer to modern casesstriking down laws on First Amendment grounds as a form of "FirstAmendment Lochnerism."19 Jeremy Kessler identifies historicalexamples of the Court overturning laws on First Amendment grounds "theearly years of First Amendment Lochnerism."12 0 While the 303 CreativeCourt attempted to characterize its holding as limited, this Subsectionexplores how it fits the mold of these Lochnerism critiques and may extendto a wide array of scenarios involving public accommodations laws.115. See id. at 591-92.116. See id. at 581.117. See id. at 639-40.118. See id. at 581 (listing the stipulations to which Smith and Coloradoagreed).119. See Enrique Armijo, Faint-Hearted First Amendment Lochnerism, 100B.U. L. REV. 1377, 1380 (2020) (introducing the phenomenon of FirstAmendment Lochnerism and parallels drawn by critics between the Court'smodern First Amendment jurisprudence and the Court's decisions in the early20th Century, including Lochner v. New York, 198 U.S. 45 (1905)). See alsoSorrell v. IMS Health Inc., 564 U.S. 552, 603 (2011) (arguing that the Court'sinvalidation of a state law restricting the disclosure of prescribing information onFirst Amendment grounds threatened to "reawaken[] Lochner's pre-New Dealthreat of substituting judicial for democratic decisionmaking where ordinaryeconomic regulation is at issue").120. See generally, Jeremy K. Kessler, The Early Years of First AmendmentLochnerism, 116 COLUM. L. REV. 1915 (2016).[Vol. 84588PUBLIC ACCOMMODATIONS LAWS1. Extending 303 Creative's Logic to Racial DiscriminationHow might the Court's ruling in 303 Creative pave the way for furtherdiscrimination against LGBTQ individuals and other members ofprotected classes? Sotomayor raises one possibility: there is nothing in thelogic of the Court's ruling that prevents website designers like Smith fromrefusing to create wedding websites for interracial couples if the websitedesigner objects to the notion of interracial marriage."' After all,preparing such a website would presumably be contrary to the websitedesigner's "belief that marriage should be reserved to unions between oneman and one woman [of the same race]."' 2Nothing in the Court's reasoning suggests that a refusal to do businesswith other protected classes, including those of a certain race or sex, isprecluded so long as the business can claim that doing business withmembers of these classes would implicate their expressive conduct insome way. Yet despite imposing no limitations addressing this scenario,the Court does little to address it. Beyond fretting over the dissent'soverreliance on hypotheticals and arguing that the hypotheticals are notimplicated in the facts of the present case, the Majority fails to respond tothis critique.'And why only race and sexual orientation? With no principledlimitation to the scope of its holding, there is little in 303 Creative thatsuggests any meaningful barrier to private business decisions to refuseservice for people based on their sex or nationality. A bar may prohibitfemale customers out of the concern that serving women alcoholdemonstrates approval of women being out on the town rather than caringfor their children, or encouragement of sexual immorality.12 4 Servingpeople from other countries may offend a xenophobic businessowner whois concerned that providing these services sends a message that immigrantsare welcome in America. These refusals-based on businesses' andindividuals' concern over the expressive implications of providingservices to certain classes of people-may now be backed by the force ofFirst Amendment protections under the logic of 303 Creative.121. 303 Creative, 600 U.S. at 638-39 (Sotomayor, J., dissenting).122. Cf id. at 580.123. See id. at 598-99.124. See Elizabeth Sepper & Deborah Dinner, Sex In Public, 129 YALE L.J.78, 86-96 (2019) (describing 1960s-era restrictions barring women fromnumerous types of businesses for these and other reasons).2024] 5 89LOUISIANA LAW REVIEW2. Broad Formulations of "Expressive Conduct"This leads into the next means by which 303 Creative may extend tomany more types of business: the potential for manipulation of the phrase,"expressive conduct," that purportedly limits the ruling. Recognizing thatmany states have similar public accommodations laws, the Court suggeststhat its ruling is limited as it applies only to those instances where publicaccommodations laws end up compelling speech or expressive activity.12sThe Court did not delve into the weeds of what makes contentexpressive-relying instead on the parties' stipulation that Smith'splanned wedding websites would have been expressive conduct.126Accordingly, while the Court's prior case law delves into what makescontent expressive, the 303 Creative Court did not clarify how preciselyits prior doctrine on the subject applied. 127The dissent, however, took issue with this characterization, arguingthat businesses like 303 Creative were manipulating the notion of goods'and services' "expressive quality" to "exclude a protected group," a tacticthat would "nullify public accommodations laws." 121 Indeed, the Court'sreasoning, which equates the expression involved in developing a weddingwebsite with the expression involved in developing a website critiquingthe institution of same-sex marriage, does a fair amount of work towardan expansive reading.129 Citing the petitioners' brief, the Court raises theprospect of a "male website designer married to another man to designwebsites for an organization that advocates against same-sex marriage."130But such a hypothetical is divorced from the facts before the Court. Smithwas not asked to create a website advocating in favor of same-sexmarriage, she was concerned about being asked to create a weddingwebsite that happened to celebrate the union of a same-sex couple. By125. 303 Creative, 600 U.S. at 590-92.126. Id. at 593-94.127. See, e.g., Spence v. State of Washington, 418 U.S. 405, 409-11 (1974)(calling for an analysis of whether conduct "was sufficiently imbued withelements of communication to fall within the scope of the First and FourteenthAmendments," which requires evaluating the activity itself and the context inwhich that activity occurs); United States v. O'Brien, 391 U.S. 367, 376-77(1968) (rejecting the notion that "an apparently limitless variety of conduct canbe labeled 'speech' whenever the person engaging in the conduct intends therebyto express an idea," but assuming that the conduct at issue in the case-burning adraft card-was "sufficient to bring into play the First Amendment").128. 303 Creative, 600 U.S. at 633 (Sotomayor, J., dissenting).129. See id. at 590.130. Id.[Vol. 84590PUBLIC ACCOMMODATIONS LAWScomparing such a task to a website that engages in political advocacyagainst gay people, Smith is suggesting that the mere recognition of asame-sex couple's wedding is speech in favor of same-sex marriage,thereby importing all of the argumentative force of speech on politicalissues and matters of public concern into her First Amendment claim. 3 1Such an argument makes sense if one looks to Justice Gorsuch's priorpositions on the issue. Gorsuch, who authored the majority opinion in 303Creative,132 wrote a concurring opinion in Masterpiece Cakeshop, inwhich Justice Alito joined.133 There, Gorsuch set forth an expansive visionof what constitutes expressive conduct in the context of weddings, arguingthat whatever the design, a wedding cake is inherently expressive:Nor can anyone reasonably doubt that a wedding cake withoutwords conveys a message. Words or not and whatever the exactdesign, it celebrates a wedding, and if the wedding cake is madefor a same-sex couple it celebrates a same-sex wedding. Like "anemblem or flag," a cake for a same-sex wedding is a symbol thatserves as "a short cut from mind to mind," signifying approval ofa specific "system, idea, [or] institution." It is precisely thatapproval that Mr. Phillips intended to withhold in keeping withhis religious faith.134Gorsuch goes on to assert that treating a wedding cake like any other cakeis akin to suggesting "that for all persons sacramental bread is just breador a kippah is just a cap.""3 With this context, it is little surprise thatGorsuch's majority opinion in 303 Creative treats the creation of a website131. See Virginia v. Black, 538 U.S. 343, 365 (2003) (recognizing "lawfulpolitical speech" as the "core of what the First Amendment is designed toprotect"); Meyer v. Grant, 486 U.S. 414, 425 (1988) (stating that speech onpolitical issues raised through initiative petitions is "an area in which theimportance of First Amendment protections is 'at its zenith"'); R.A.V. v. City ofSt. Paul, 505 U.S. 377, 422 (1992) (Stevens, J., concurring) (noting a "roughhierarchy in the constitutional protection of speech" in which "[c]ore politicalspeech occupies the highest, most protected position"); Holder v. HumanitarianL. Project, 561 U.S. 1, 42 (2010) (Breyer, J., dissenting) (recognizing the"elementary" notion that "speech and association for political purposes is the kindof activity to which the First Amendment ordinarily offers its strongestprotection").132. 303 Creative, 600 U.S. at 577.133. Masterpiece Cakeshop, Ltd. v. Colo. Civ. Rts. Comm'n, 584 U.S. 617,643 (Gorsuch, J., concurring).134. Id. at 650 (Gorsuch, J., concurring) (internal citations omitted).135. See id. at 653 (Gorsuch J., concurring).2024] 591LOUISIANA LAW REVIEWfor a same-sex wedding as the expressive equivalent of creating a websiteadvancing political arguments against the notion of same-sex marriage.136This is not to say that developing a wedding website is not anexpressive act. But equating expression that tells the story of a couple'srelationship, a wedding's location, and the dress code with politicalstances for or against same-sex marriage ignores nuanced distinctionsbetween different types of expression and portrays expression related toweddings as political speech. This move did not go unnoticed by thedissent. Sotomayor notes that Smith's claim was that the First Amendmentpermits her to "refuse to sell any 'websites for same-sex weddings,' eventhough the company plans to offer wedding websites to the generalpublic," a "categorical exemption" that Sotomayor argued should berejected due to its "sweeping nature."'37Fueled by the 303 Creative's already broad approach to what conductconstitutes protected speech, businesses may feel emboldened to advancesimilarly broad definitions of "expressive conduct" in support of furtherlitigation against public accommodations laws. Sticking with weddings, ifit is already established that the simple act of creating a wedding websitethat happens to be for a same-sex couple constitutes expression in favor ofsame-sex marriage, a range of other businesses may refuse service as wellsimply on the grounds that providing services for a wedding between twopeople of the same sex constitutes a tacit endorsement of their union.Using this broader logic, a vendor need not claim that the particular goodthey develop or provide contains an expressive element-rather, the mereact of providing the good or service constitutes an endorsement of same-sex marriage. By this logic, those with colorable First Amendmentobjections to public accommodations laws may include not the already-litigated professions of website developers and bakers,138 or the artisticexpression of florists, photographers, and cellists, but also vendors whoprovide services as expressively inert (yet essential) as cutlery, tables, andguest seating.Other businesses may join the fray. A restaurant may refuse to seatsame-sex couples, out of concern that other customers who see gaycouples eating at the restaurant will conclude that the restaurant condonestheir relationship. The same argument applies to a restaurant thatdisapproves of interracial relationships. Or perhaps all potential customerswho happen to belong to a race which the restaurant owner believes areinherently inferior. Don't worry-same-sex couples, interracial couples,136. See 303 Creative, 600 U.S. at 590.137. See id. at 635 (Sotomayor, J., dissenting).138. See id. See generally also Masterpiece Cakeshop, 584 U.S. 617.[Vol. 84592PUBLIC ACCOMMODATIONS LAWSand people of color may still order takeout for discrete pickup-so long asthey refrain from flaunting their relationships or races to the extent that itcontradicts the restaurant's desired message of intolerance.As noted above, the Court has addressed the question of what makesconduct expressive in prior cases, looking to whether "[a]n intent toconvey a particularized message was present, and [whether] in thesurrounding circumstances the likelihood was great that the messagewould be understood by those who viewed it."139 But the 303 Creativedecision provides no guidance on how to determine whether a business'sconduct is expressive-a complicated question in a post-social-mediaworld in which seemingly banal content may take on unpredictableexpressive connotations.140 Instead, because the case was based onstipulations and predictions over future conduct, the Court'sdeterminations over expressive conduct were unargued and decided on thebasis of party-provided hypotheticals rather than a pre-existingviolation.1413. Discrimination on the Basis of Religious ExerciseA less certain, but potentially significant, means by which privatebusinesses may leverage the logic of 303 Creative to discriminate againstcustomers is by raising First Amendment free exercise claims, or ReligiousFreedom Restoration Act (RFRA) claims. In challenging Colorado's Anti-Discrimination Act, Smith and 303 Creative raised free exercise claimsalong with their free speech claims.'42 Masterpiece Cakeshop alsoinvolved both a free speech and free exercise challenge to the Act.143139. See Spence v. State of Washington, 418 U.S. 405, 410-11 (1974).140. Mask usage in the wake of COVID-19 is an example, with politicizationof the pandemic and safety measures leading to political protests over the wearingof facemasks. Steven Taylor & Gordon J.G. Asmundson, Negative AttitudesAbout Facemasks During the COVID-19 Pandemic: The Dual Importance ofPerceived Ineffectiveness and Psychological Reactance, 16 PLoS ONE, no. 2(Feb. 17, 2021) (describing anti-mask protest activities and how relatedsentiments connected to opinions over vaccination and other public healthpolicies). See also Allen Smith, Stop Employees from "Mask Shaming"Colleagues, SHRM (Apr. 4, 2022), https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/stop-mask-shaming.aspx [https://perma.cc/J4G2-8QWS] (discussing the phenomenon of "mask-shaming," inwhich those who wear masks are ridiculed or criticized).141. See 303 Creative LLC v. Elenis, 600 U.S. 570, 589-90 (2023).142. See 303 Creative LLC v. Elenis, 6 F.4th 1160, 1168 (10th Cir. 2021).143. See Masterpiece Cakeshop, 584 U.S. at 629-31.2024] 593LOUISIANA LAW REVIEWIn Masterpiece Cakeshop, the petitioners argued that providingwedding-related services to a same-sex couple would run contrary to thepetitioners' genuinely held religious beliefs, and that any legalrequirement that they provide those services would violate the petitioners'religious freedom.'" While the Court ruled in favor of the petitioners, itdid so because those charged with enforcing the law exhibited hostilitytoward religion-leading the Court to characterize the case as an instanceof discriminatory enforcement rather than a case where the law at issuewas, itself, constitutionally defective.'45In 303 Creative, Smith argued in the United States Court of Appealsfor the Tenth Circuit that Masterpiece Cakeshop controlled becauseColorado's Act posed more of a burden for religious businesses thansecular businesses.14 6 As an example, Smith argued that "althoughColorado admits that a business is not required to design a websiteproclaiming 'God is Dead' if it would decline such a design for anycustomer, [Smith] must design a website celebrating same-sex marriage,even though [she] would decline such a design for any customer."147 TheTenth Circuit ruled that Smith failed to demonstrate that the law disfavoredreligious speakers rather than favoring LGBTQ consumers.'48 FavoringLGBTQ consumers, however, did not establish that the state had targetedreligious speakers, as Smith provided no evidence "that Colorado permitssecularly-motivated objections to serving LGBT consumers."149 When thecase proceeded to the Supreme Court, the Court only addressed Smith'sfree speech claims.'5 0Neither Masterpiece Cakeshop nor 303 Creative broached thepotential conflict between public accommodations laws and religiousfreedom. For now, these cases remain governed by Employment Divisionv. Smith.151 There, the Court took up a challenge by two former employeesof the Douglas County Council on Alcohol and Drug Abuse Preventionand Treatment, who had been fired due to their use of peyote-thepossession of which was a felony under Oregon law-and who weredenied unemployment benefits because they had been disqualified for144. Id. at 638-39 ("Phillips ... contended that requiring him to create cakesfor same-sex weddings would violate his right to the free exercise of religion").145. Id.146. 303 Creative, 6 F.4th at 1185.147. Id. (internal citations omitted).148. See id. at 1186 (arguing that the Act subjected religious objections toproviding service to greater scrutiny than objections with a secular basis).149. Id.150. See 303 Creative LLC v. Elenis, 600 U.S. 570, 583-85 (2023).151. See Dep't of Hum. Res. of Or. v. Smith, 494 U.S. 872 (1990).594 [Vol. 84PUBLIC ACCOMMODATIONS LAWS"work-related 'misconduct."'"5 2 The former employees argued that theytook peyote for sacramental purposes in connection with their sincerereligious beliefs as members of the Native American Church.13 Inprevious cases, the Court had subjected laws applied in a manner thatincidentally burdened religious exercise to a strict scrutiny analysis-sometimes finding in favor of the plaintiff,154 and sometimes upholdingthe enforcement of the law."5 The Smith Court took a different approach,holding that generally applicable laws that incidentally burdened the freeexercise of religion did not run afoul of the First Amendment.15 6Should courts follow Smith, they will likely conclude that publicaccommodations laws are "valid, neutral laws of general applicability"which are therefore not subject to scrutiny in the face of Free Exercisechallenges."7 Yet, Smith may not be long for this world. In an opinionconcurring in the judgment in Fulton v. City ofPhiladelphia, Justice Alito,joined by Justices Thomas and Gorsuch, argued that Smith was "ripe forreexamination," setting forth examples of potential laws that could burdenreligious exercise, yet be permitted under Smith's rubric.5 8 JusticesBarrett and Kavanaugh wrote their own concurrence, beginning theirdiscussion with a paragraph suggesting that there were serious textual and152. Id at 874.153. See id.154. See Sherbert v. Verner, 374 U.S. 398, 407-09 (1963) (overruling adetermination that plaintiff, a Seventh-Day Adventist, was ineligible forunemployment benefits because she refused to accept employment at jobs thatrequired her to work on Saturdays); Wisconsin v. Yoder, 406 U.S. 205, 218-19(1972) (ruling in favor of Amish plaintiffs challenging a law requiring thecompulsory education of children up to the age of 16).155. See United States v. Lee, 455 U.S. 252, 258-60 (1982) (ruling that eventhough requiring Amish plaintiffs to pay social security taxes constituted a burdenon their free exercise rights, the government's compelling interest behindrequiring the tax left plaintiffs with "no basis for resisting the tax"); Bob JonesUniv. v. United States, 461 U.S. 574, 603-04 (1983) (rejecting religiousuniversity's challenge to adverse tax determination based on the university'srefusal to permit interracial dating on religious grounds, finding that thegovernment's interest in eradicating racial discrimination in education wascompelling and that there were no less restrictive means available to achieve thatinterest).156. See Dep't ofHum. Res. of Or., 494 U.S. at 885.157. See Rodney W. Harrell, State Religious Free-Exercise Defenses toNondiscrimination Laws: Still Relevant After Masterpiece Cakeshop, 87 UMKCL. REV. 297, 301 (2019).158. See Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1883-84 (2021)(Alito, J., concurring).2024] 595LOUISIANA LAW REVIEWstructural arguments against Smith, although the historical record was"more silent than supportive" of arguments against Smith.159 Theremainder of the concurrence, in which Justice Breyer joined, noted thateliminating Smith would raise a host of questions, including what level ofscrutiny would apply in cases burdening religion, and whether religiousorganizations and individuals would need to be treated differently.160While Smith remains good law for now, statutes may strengthenbusinesses' case for challenging public accommodations laws on religiousfreedom grounds. The federal government passed the Religious FreedomRestoration Act (RFRA) three years after Smith, which "brought back thesame sort of strict scrutiny model that had been jettisoned in Smith."16 'The Supreme Court soon held that RFRA was unconstitutional to theextent it applied to state law, as it was beyond Congress's power to passsuch a restriction.'6 2 While this resulted in the federal RFRA statute'srestriction to action by the federal government only, several states passedtheir own versions of RFRA to require strict scrutiny for laws that createa substantial burden for religious exercise.'63 In Burwell v. Hobby Lobby,the Court confirmed that closely-held corporations have an interest in thefree exercise of religion for RFRA purposes, holding that the AffordableCare Act violated RFRA to the extent it required Hobby Lobby to provideits employees with healthcare coverage that included coverage for certainforms of contraception.'"This sets the stage for a conflict between businesses' rights to religiousfreedom and public accommodation laws that prohibit discrimination onthe basis of sexual orientation. Rodney Harrell notes that eight states fitthis description-with Connecticut, Illinois, New Mexico, and RhodeIsland having passed statutes that require strict scrutiny for governmentaction that burdens religious freedom, and Massachusetts, Minnesota,159. See id at 1882 (Barrett, J., concurring). Justice Breyer did not join in thefirst paragraph of this concurrence, although he joined the remainder of theopinion. Id160. Id. at 1882-83 (Barrett, J., concurring).161. Christopher C. Lund, Religious Liberty After Gonzales: A Look at StateRFRAs, 55 S.D. L. REV. 466, 471-72 (2010); Religious Freedom Restoration Actof 1993, Pub. L. No. 103-141, 107 Stat. 1488 (1993) (codified at 42 U.S.C. §2000bb).162. See City of Boerne v. Flores, 521 U.S. 507, 532, 535-36 (1997).163. Lund, supra note 161, at 476-79.164. See Burwell v. Hobby Lobby Stores, Inc. 573 U.S. 682, 703-04, 708, 736(2014).[Vol. 84596PUBLIC ACCOMMODATIONS LAWSWashington, and Wisconsin interpreting their state constitutions to require"strict scrutiny similar to that required by many state RFRAs." 165Were the Court to begin recognizing religious objections to publicaccommodations laws-whether through overruling or narrowing Smithor through a federal or state RFRA statute-it could create a significantgap in legal protections for disadvantaged groups.'" Defenders of theCourt's 303 Creative decision assert that the ruling would have beennarrower had it been decided on free exercise grounds, as such adetermination would require the assertion of a sincere religious belief insupport of a desire to discriminate against potential customers.167 Whilethis characterization is accurate, its argumentative force derives from theassumption that 303 Creative will not be extended into the realm ofreligious freedom-an assumption that is unlikely given ongoing effortsto employ the clause to attack laws including the one at issue in the 303Creative case.168Bringing things back to 303 Creative, one of its key limitingprinciples-the notion that a business or individual must be providing agood or service that constitutes expressive conduct-would not apply incases involving free exercise claims. All that would be necessary wouldbe a claim of a sincerely held religious belief that precludes providingservice to the protected class at issue.169 Because courts refuse to entangle165. Harrell, supra note 157, at 298.166. See Lawrence G. Sager & Nelson Tebbe, The Reality Principle, 34CONST. COMMENT. 171, 173 (2019) ("The central aim of civil rights law is toprotect members of vulnerable groups from the harms of structural injustice; thatvital project would be undermined by a broad carve out for religious dissent.").167. See, e.g., A Huge Win for the First Amendment, NAT'L REV. (June 30,2023, 5:01 pm) https://www.nationalreview.com/2023/06/a-huge-win-for-the-first-amendment/ [https://perma.cc/797H-5VEL] (arguing that because 303Creative was not decided on religious liberty grounds, its holding is "morebroadly applicable, as it does not require business owners to prove that theirobjections are specifically religious").168. See Howard Gillman & Erwin Chemerinsky, The Weaponization of theFree-Exercise Clause, THE ATLANTIC (Sept. 18, 2020), https://www.theatlantic.com/ideas/archive/2020/09/weaponization-free-exercise-clause/616373/ [https://perma.cc/7JY4-ENA3]; Masterpiece Cakeshop, Ltd. v. Colo. Civ. Rts. Comm'n,584 U.S. 617, 629-31 (2018); 303 Creative LLC v. Elenis, 6 F.4th 1160, 1168(10th Cir. 2021).169. See Burwell, 573 U.S. at 724 (noting that the Court cannot examinewhether a plaintiff's belief in a RFRA case is flawed or reasonable); Thomas v.Rev. Bd. of Ind. Emp. Sec. Div., 450 U.S. 707, 716 (1981) (in the context of aclaim for unemployment benefits after an employee terminates employment dueto a claim that religious beliefs preclude the work required, the "narrow function2024] 597LOUISIANA LAW REVIEWthemselves with the inner working of religious groups or their doctrines,courts do not to consider whether the religious belief is reasonable or if abusiness's or individual's interpretation of their particular religiousdoctrine is a valid one.1 0 Accordingly, plaintiffs in free exercise suitswould not need to demonstrate expressive conduct and would need onlydemonstrate that being required not to discriminate against certaincustomers is contrary to their sincerely held religious beliefs-therebyavoiding one of the primary limits the 303 Creative Court emphasizes.1 7 1IV. CONSTITUTIONALLY SUSPECT CLASSES: A LIMITING PRINCIPLE?The prospect of speech-based racial discrimination poses concerns forpotential extensions of 303 Creative. But the Court's existing case lawsuggests that where discrimination strays from anti-LGBTQ behavior andinto race-based exclusions, interests in preventing discrimination becomeso significant that the force of free speech interests runs out. Here, onemay find a potential argument for limiting the scope of the Court's 303Creative ruling.In Bob Jones University v. United States, the Court confronted auniversity policy prohibiting interracial dating and marriage amongstudents, which the university had promulgated based on what the Courtdeemed to be its genuinely religious beliefs.17 2 The IRS had denied theuniversity's tax-exempt status on the grounds that the school was engagingin racial discrimination, and the university argued that this violated its Freeof a reviewing court... is to determine whether there was an appropriate findingthat petitioner terminated his work because of an honest conviction that such workwas forbidden by his religion.").170. See Hernandez v. Comm'r of Internal Revenue, 490 U.S. 680, 699 (1989)("It is not within the judicial ken to question the centrality of particular beliefs orpractices to a faith, or the validity of particular litigants' interpretations of thosecreeds."). See also Presbyterian Church in U.S. v. Mary Elizabeth Blue HullMem'l Presbyterian Church, 393 U.S. 440, 450 (1969) (ruling that lower court'sexamination of whether a religious belief departed from a particular doctrine"require[d] the civil court to determine matters at the very core of a religion-theinterpretation of particular church doctrines and the importance of those doctrinesto the religion," and that "[p]lainly, the First Amendment forbids civil courts fromplaying such a role").171. See 303 Creative LLC v. Elenis, 600 U.S. 570, 592 (2023).172. See Bob Jones Univ. v. United States, 461 U.S. 574, 580-81 (1983). Theschool had previously "completely excluded" Black people from admission upuntil 1971 but revised its policy after a Fourth Circuit decision that prohibitedprivate schools from excluding students based on race. Id. at 580.[Vol. 84598PUBLIC ACCOMMODATIONS LAWSExercise rights.173 As the Court had not yet decided Employment Divisionv. Smith, it applied a stringent level of scrutiny to the government's action,noting that the state "'may justify a limitation on religious liberty byshowing that it is essential to accomplish an overriding governmentalinterest." 4 The Court concluded that the government had a compellinginterest in "eradicating racial discrimination in education," which had"prevailed, with official approval, for the first 165 years of this Nation'sconstitutional history." 17 5 The Court further held that the university's freeexercise interests "cannot be accommodated with that compellinggovernment interest" and that there were no less restrictive meansavailable to achieve the interest.17 6Mark Killenbeck flags Bob Jones University as an example of theCourt grappling with the issue of whether religious beliefs that are,themselves, discriminatory may be invoked to refuse service toconsumers.17 7 Killenbeck argues that while the Court's ruling providessome cursory discussion of the issue, it is "not at all clear" that it addressesthe issue of "whether government can 'devalue[] religious reasons fordeclining [a] request' to provide services and whether 'religiousbeliefs . . . [can be] discriminatory in and of themselves.""78 Despite thisdisconnect, Killenbeck thinks it highly unlikely that the Court "willsanction religiously motivated discrimination on the basis of race."17 9While Bob Jones University and Killenbeck's discussion all concernfree exercise rights, the discussion suggests a potential answer tohypotheticals like those raised by the 303 Creative dissent and this Articlein which businesses refuse to serve customers on the basis of race, so longas they have expressive reasons for doing so.180 Even if the Courtrecognizes that First Amendment interests may be undermined by publicaccommodations laws that forbid discrimination based on race, the interestin preventing discrimination in public accommodations may be soprofound that violation of free speech or free exercise rights may be173. See id. at 602-03, 605.174. Id. at 603 (quoting United States v. Lee, 455 U.S. 252, 257-58 (1982)).175. Id. at 604.176. Id.177. See Killenbeck, supra note 28, at 792-93.178. Id. at 793 (citing Brief for Petitioners at 43, Masterpiece Cakeshop, Ltd.v. Colo. Civ. Rts. Comm'n, 584 U.S. 617 (2018) (No. 16-111)).179. See Killenbeck, supra note 28, at 793.180. See 303 Creative LLC v. Elenis, 600 U.S. 570, 639 (2023) (Sotomayor,J., dissenting).2024] 599LOUISIANA LAW REVIEWoutweighed by the interest of preventing racial discrimination.""Preventing racial discrimination may be so significant a governmentinterest that it may override countervailing First Amendment claims.But such an approach raises the question of whether governmentinterests in shielding protected groups from discrimination extends beyondracial discrimination. 303 Creative suggests that there are limits onprotected classes, as the interest in protecting gay people fromdiscrimination by private businesses is not enough to overcome thosebusinesses' free speech interests.One possible answer may be to take a more permissive approach topublic accommodations laws that protect groups recognized as "suspectclasses" in equal protection cases. Despite the Fourteenth Amendment'sEqual Protection Clause, state actors may generally treat groups of peopledifferently so long as there is a rational basis for doing so.182 But there isa small group of exceptions to this general rule. Classifications based on"race, national origin, citizenship, parents' marital status, and sex" aredeemed "suspect" classifications and subjected to heightened scrutiny.183This is because these classifications are deemed "presumptivelyinvidious," making it "appropriate to enforce the mandate of equalprotection by requiring the State to demonstrate that its classification hasbeen precisely tailored to serve a compelling governmental interest.""One potential limit on 303 Creative could be that state publicaccommodations laws that prohibit discrimination based on theseconstitutionally founded suspect classes should overcome FirstAmendment challenges by businesses and individuals who claim thatserving these classes of people violates their free expression rights.Existing precedent suggests that the legal groundwork for such anapproach is already in place. While Bob Jones University dealt withreligious free exercise claims, its logic, which relied on the compellinggovernment interest in eradicating racial discrimination, could beextended to First Amendment claims as well. In Roberts v. U.S. Jaycees,the Court upheld a Minnesota law that "prohibit[ed] gender discriminationin places of public accommodation" in the face of a First Amendment181. See Killenbeck, supra note 28, at 793 (noting that the United States madethis argument in its brief in Masterpiece Cakeshop).182. See Suzanne B. Goldberg, Equality Without Tiers, 77 S. CAL. L. REv.481, 482-83, 489 (2004). See also Crawford v. Marion Cnty. Election Bd., 553U.S. 181, 207 (2008) (Scalia, J., concurring) (recognizing poverty and disabilityas examples of non-suspect classifications).183. See Daniel Evans Peterman, Socioeconomic Status Discrimination, 104VA. L. REv. 1283, 1290 (2018).184. Plyler v. Doe, 457 U.S. 202, 216-17 (1982).600 [Vol. 84PUBLIC ACCOMMODATIONS LAWSchallenge by a private organization, the Jaycees, that had sought to excludewomen from holding full voting membership positions in theorganization.185 To be sure, the First Amendment right at issue was thefreedom of expressive association rather than freedom of speech.18 6 Still,the Roberts Court's reasoning may well apply to cases involving claimsthat free speech rights permit discrimination on the basis of sex, as theCourt noted that the Minnesota law protected people from discrimination"based on archaic and overbroad assumptions," and the deprivations ofdignity and lost benefits to society that such discrimination caused.187 Thecourt concluded that Minnesota had advanced these interests "through theleast restrictive means of achieving its ends," and that the Jaycees hadfailed to demonstrate how requiring women to hold full votingmembership roles would impose "any serious burdens on the malemembers' freedom of expressive association.""' The First Amendmentchallenge to Minnesota's public accommodations law therefore failed.189Even if we accept that public accommodations laws limited toconstitutionally recognized suspect classes deserve stronger considerationin the face of free speech challenges, this raises the question of what levelof constitutional scrutiny ought to be applied to public accommodationslaws in such cases. In a classic First Amendment case involving a content-based law restricting freedom of speech, courts tend to apply strictscrutiny-requiring that the government's restriction be narrowly tailoredto advance a compelling interest-so long as the speech at issue doesn'tfall into one of several narrow categories of unprotected speech.'90The analysis is not so clean in public accommodations cases. Recallthat in the Roberts case above, the Court noted that the State had advancedits compelling interest in preventing discrimination against women"through the least restrictive means of achieving its ends."'9 1 Butsubsequent cases striking down public accommodations laws took a moreabsolutist approach. In Hurley v. Irish-American Gay, Lesbian and185. See Roberts v. U.S. Jaycees, 468 U.S. 609, 613-16, 625-26 (1984).186. See id. at 617-18.187. See id. at 625.188. Id. at 626.189. See id. at 628-29, 631.190. See Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015) ("Content-basedlaws-those that target speech based on its communicative content-arepresumptively unconstitutional and may be justified only if the governmentproves that they are narrowly tailored to serve compelling state interests.");United States v. Stevens, 559 U.S. 460, 468-69 (2010) (describing the categoriesof unprotected speech).191. See Roberts, 468 U.S. at 613-16, 625-26.2024] 601LOUISIANA LAW REVIEWBisexual Group of Boston, the Court did not discuss whetherMassachusetts' public accommodations law was narrowly tailored tofurther a compelling government interest. Instead, the Court framedMassachusetts' law, when applied in the context of a parade, as having noother object than "simply to require speakers to modify the content of theirexpression to whatever extent beneficiaries of the law choose to alter itwith messages of their own." 192 The Court framed this as "nothing lessthan a proposal to limit speech in the service of orthodox expression," anotion flatly at odds with the First Amendment.93 As for precedent inwhich restrictions had been upheld, the Court dismissed those as notresulting in meaningful restrictions on free speech-as the shopping mallin one case was not likely to be associated with the speech of peoplehanding out handbills, and as a dining club subject to a publicaccommodations law remained free to turn away those with contraryexpressive views.1 94 Those cases, as Hurley characterized them, were notso much instances where restrictions on speech passed strict scrutiny asthey were cases where the rights to free expression and association werenot meaningfully infringed in the first place.Moreover, in Boy Scouts ofAmerica v. Dale, the Court acknowledgedits holding in Roberts, but emphasized that there had been no proof of"serious burden" on expressive association in that case.195 Surveying priorcases in which the Court had upheld public accommodations laws, it statedthat "in th[o]se cases, the associational interest in freedom of expressionhas been set on one side of the scale, and the State's interest on theother."19 6 It then relied on Hurley, which it claimed "applied traditionalFirst Amendment analysis," which it relied upon to address the applicationof public accommodations laws to the Boy Scouts' exclusion of a gayassistant scoutmaster.'97 Despite casting the Hurley approach as"traditional," and despite rejecting an "intermediate standard of review"urged by Dale, the Court did not go on to identify a level of scrutiny,discuss compelling interests, or analyze how narrowly the law wastailored.198 As in Hurley, the Court stated that retaining Dale as an assistant192. See Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S.557, 578 (1995).193. See id. at 579.194. See id. at 579-81 (discussing Pruneyard Shopping Ctr. v. Robins, 447U.S. 74 (1980) and N.Y. State Club Ass'n, Inc. v. City of New York., 487 U.S. 1(1988)).195. See Boy Scouts of Am. v. Dale, 530 U.S. 640, 657-59 (2000).196. Id. at 658-59.197. See id. at 659.198. Id. at 659-61.[Vol. 84602PUBLIC ACCOMMODATIONS LAWSscoutmaster "would significantly burden the organization's right to opposeor disfavor homosexual conduct," and concluded that "[t]he state interestsembodied in New Jersey's public accommodations law do not justify sucha severe intrusion on the Boy Scouts' rights to freedom of expressiveassociation."'99 Nowhere in its opinion did the Court state what thoseinterests were or whether they were compelling.This opaque analysis leaves courts in a lurch when it comes toscrutinizing public accommodations laws that prohibit discriminationbased on constitutionally suspect classes. One possible solution is that theabsolutist approach of Hurley and Dale may be avoided in cases involvingthese suspect classes, as Bob Jones University and Roberts both involvedsuch classes, and both employed something looking more like scrutinyanalysis. Alternatively, courts may seize on language in Dale, stating that"the associational interest in freedom of expression has been set on oneside of the scale, and the State's interest on the other," and conclude thatthe scale must balance in favor of the State when First Amendment claimsare advanced with a goal of excluding constitutionally recognized suspectclasses from receiving goods or services.200 Either of these approachesmay avoid some of the tougher potential applications of 303 Creative-particularly those hypotheticals involving interracial marriages.But beyond confusion over how to merge the doctrines ofconstitutional suspect classifications and the First Amendmentimplications of public accommodations laws, a broader argument againstrelying on constitutional suspect classes in curtailing the scope ofchallenges to public accommodations laws, is the inflexibility ofconstitutional suspect class doctrine. Constitutional suspect classes arelimited to only those five groups the Court has recognized in its priordecisions as suspect.201 The Court has shown little willingness to expandthis small list of suspect classes.202 Kenji Yoshino ties this reluctance to"pluralism anxiety," a notion not dissimilar from the concerns discussedin the preceding Section:Many Americans view civil rights as an endless parade of groupsclamoring for state and social solicitude. Even traditional liberalsdecry the nation's "balkanization," calling us back to the ideals of199. Id. at 659.200. See id. at 658-59.201. See Peterman, supra note 183, at 1290 (identifying these classes as "race,national origin, citizenship, parents' marital status, and sex").202. See William D. Araiza, After the Tiers: Windsor, Congressional Powerto Enforce Equal Protection, And the Challenge of Pointillist Constitutionalism,94 B.U. L. REv. 367, 385-86 (2014).2024] 603LOUISIANA LAW REVIEWintegration and assimilation.The jurisprudence of the United States Supreme Court reflects thispluralism anxiety. Over the past decades, the Court hassystematically denied constitutional protection to new groups,curtailed it for already covered groups, and limited Congress'scapacity to protect groups through civil rights legislation. TheCourt has repeatedly justified these limitations by adverting topluralism anxiety. These cases signal the end of equality doctrineas we have known it. 2 03Even the Supreme Court's decisions striking down laws targeting gaypeople and upholding same-sex marriage have not gone so far as torecognize sexual orientation as a suspect classification.2 4 In Romer v.Evans, the Court took up an equal protection challenge to an amendmentto Colorado's state constitution, which prohibited treatment ofhomosexual and bisexual people as minorities deserving of any protectedstatus.20 The Court did not reach the question of whether sexualorientation was a protected class, as it held that the amendment failed tohave any rational relation to a legitimate end-the most deferential levelof scrutiny required under the Equal Protection clause, and one which didnot require a suspect class determination to apply.206 In Lawrence v. Texas,the Court struck a Texas law criminalizing sodomy.207 The Court declinedto review the law on Equal Protection grounds-striking it down as aviolation of substantive due process instead-and therefore avoided thequestion of whether sexual orientation was a suspect class.208 In Obergefellv. Hodges, the Court used a hybrid approach employing both the dueprocess and equal protection analysis to strike down state laws prohibitingsame-sex marriage.20 In doing so, however, the Court did not recognizeLGBTQ people as a suspect class.2 10Obergefell was a landmark decision, but the Court's failure torecognize sexual orientation as a suspect class is a glaring omission in the203. Yoshino, supra note 16, at 748.204. See Max Isaacs, LGBT Rights and the Administrative State, 92 N.Y.U. L.REv. 2012, 2019-21 (2017).205. See Romer v. Evans, 517 U.S. 620, 623-24 (1996).206. See id. at 631-32.207. See Lawrence v. Texas, 539 U.S. 558, 578-79 (2003).208. See id. at 574-75, 578-79.209. See Obergefell v. Hodges, 576 U.S. 644, 672-73, 675 (2015).210. See id.[Vol. 84604PUBLIC ACCOMMODATIONS LAWSCourt's analysis.2' Peter Nicholas argues that the Court's failure torecognize sexual orientation as a suspect class has caused harm to LGBTQpeople, and that this harm will persist in the form of legal uncertainty andattempts at discriminating against LGBTQ people in contexts other thanthe right to marry.2 1 2 This failure provides compelling support for KenjiYoshino's claim that the "canon has closed" on the development of suspectclassifications.2 13Should the Court's designation of suspect classifications remainstagnant, it will remain a limited and inflexible constraint on FirstAmendment challenges to public accommodations laws. To be sure, it isnot a meaningless limit-indeed, I suspect this is how disputes involvingFirst Amendment objections to serving interracial couples will be resolvedshould that scenario come to pass. But while a limitation based inconstitutionally suspect classes may help resolve some of the mostextreme cases that may result from 303 Creative, it remains of little use tothose who fall outside of these classes, including those who facediscrimination on characteristics such as "age, disability, and sexualorientation."214V. A MIDDLE GROUND: TAKING A PROPORTIONAL APPROACHIn light of the unsatisfactory solution of countering First Amendmentchallenges to public accommodations laws by resorting to theconstitutional law of suspect classifications, this Part proposes 'analternative solution of balancing rights claims rather than adopting awinner-take-all approach. Drawing on work by Jamal Greene, I argue that303 Creative exemplifies a categorical approach to rights claims-awinner-takes-all approach where the Court's perceived options are tocome down entirely on the side of the right to be free of discrimination orthe right to free expression. A more nuanced approach to the issue maylead to outcomes that respect both rights-although doing so requiresthose approaching the dispute to look past extremes and reconceptualizethe scope of rights.211. See Megan M. Walls, Obergefell v. Hodges: Right Idea, Wrong Analysis,52 GONZ. L. REv. 133, 141 (2017) ("By failing to apply, or even discuss, sexualorientation as a suspect class, the Court has left open other questions involvingLGBT rights.").212. See Peter Nicolas, Obergefell's Squandered Potential, 6 CAL. L. REV.137, 142 (2015).213. Yoshino, supra note 16, at 757.214. See id. at 756.6052024]LOUISIANA LAW REVIEWA. The Problem of Categorical Rights ClaimsJamal Greene begins his Harvard Law Review Foreword, Rights AsTrumps?, with a discussion of Masterpiece Cakeshop.215 One framing ofthe dispute presents the customers, Charlie Craig and Dave Mullins, asindividuals with rights claims precluding the bakery owner, Jack Phillips,from refusing to sell cakes to them "simply because they are gay men,"while Phillips asserts an expressive right that he cannot be compelled toproduce art against his will.216 Under this framing, "Phillips has his rights,so do Craig and Mullins, and, crucially, so do the people of the State ofColorado in whose name its public accommodation law speaks. This is aportrait of rights on all sides, reconcilable only at retail, if at all." 217An alternate framing presents a "darker portrait, a legal Guernicacluttered with slippery slopes, law school hypotheticals, and assortedhorribles on parade."218 Greene notes the hypotheticals the justices raisedin oral argument, with Justice Gorsuch asking whether Colorado law"would require a baker to sell a cake with a cross on it to a member of theKu Klux Clan," while Justice Alito asked if the "law could force the bakerto provide a cake honoring the anniversary of Kristallnacht."2 19 Thesequestions, Greene argues, reflect "a portrait of rights on one side, bad faithon the other, and powerful disagreement about which is which. Thisconflict is reconcilable only at wholesale, and without mercy to theloser." 220Greene observes that the latter approach is based in a "noble instinct"that balancing rights "against the public good is to deny themaltogether."22 1 The approach dates back generations, exemplified byJustices Holmes's and Harlan's competing dissents in Lochner v. NewYork.222 This absolutist approach represents the approach Justice Holmesadopted in his Lochner dissent.223 But Greene goes on to suggest hat thisapproach to framing rights "creates many problems for constitutionallaw," including difficulties in application to the myriad scenarios that mayarise in a complex legal system, tortured definitions of rights and theirscope that result from absolute treatment, and an overly adversarial215. See Greene, supra note 17, at 31.216. Id.217. Id.218. Id.219. Id. at 31-32.220. Id at 32.221. Id.222. See id. at 56-57.223. Id.[Vol. 84606PUBLIC ACCOMMODATIONS LAWSapproach to rights disputes that requires the denial of rights on one side-leading to increased polarization and requiring the parties to argue fromextreme positions.22 4 Greene surveys arguments over antidiscriminationclaims, social and economic rights, abortion, school integration, andSecond Amendment rights, and observes that this absolute or "categoricalframe" of rights pervades these disputes.2 5 He notes common themes inhow these disputes are adjudicated:First, the Court resorts casually to slippery slope, hypotheticalarguments to silence claims made in the here and now, as indisparate impact and positive rights cases. Second, the Courtstruggles to reconcile potential rights conflicts with existingdoctrinal architecture, as in the abortion area. Third, the Courtmaintains thin heuristics to temper its entry into complex socialproblems, as in the school integration context. Finally, the Courtadopts a romantic vision of doctrinal simplicity and coherence, asin Heller.226Over thirty years ago, Mary Ann Glendon critiqued the absoluteframing of rights as well, noting that the notion that one's rights "trump[]everything else in sight" pervades rights discourse in the United Stateseven though, in reality, these rights frequently conflict, and these conflictsare routinely resolved.227 Tracing the origin of these claims back toAmerica's founding and that era's absolutist rhetoric regarding propertyand other rights, Glendon argues that this longstanding habit of speakingabout rights absolutes left Americans with little in the way ofconceptualizing harm to rights as time went on.228 Owen Fiss notes similarissues with a "libertarian view" of the right to self-expression, and arguesthat an approach to the First Amendment that frames strong rights ofpeople against the government "is unable to explain why the interests ofspeakers hould take priority over the interest of those individuals who arediscussed in the speech, or who must listen to the speech, when those twosets of interests conflict."229 Fiss describes an "impasse" in cases involvingstate regulation of hate speech, arguing that "liberals have been divided,224. See id. at 32-34, 70-79.225. See id. at 43-56.226. Id. at 56.227. See MARY ANN GLENDON, RIGHTS TALK: THE IMPOVERISHMENT OFPOLITICAL DISCOURSE 19-20 (1991).228. See id. at 20-25.229. See OWEN FIss, THE IRONY OF FREE SPEECH 2-3 (1996).2024] 607LOUISIANA LAW REVIEWalmost at war with themselves, some favoring liberty, some equality."230Alex Loehndorf adds to the chorus of critiques, describing how emotionalinvestment along with misinformation about the nature of constitutionalrights makes constitutionalized disputes over competing rights claimsparticularly extreme, toxic, and dangerous to democracy.23 1An absolutist approach to rights disputes has become pervasive in thewake of the "rights explosion" that has gone on for "half a century andcounting."232 During that time, the diversity of rights has increased and therights themselves have become more competitive, leaving courts tostruggle with reconciling "a diverse, unpredictable array of conflicting,important, and deeply felt individual and group interests with thegovernment's existential interest in governing."233 Extreme arguments andpolarized politics are the result.234Summarizing the arguments of the parties in Masterpiece Cakeshop,Greene paints a picture that is strikingly similar to the interplay betweenthe Majority and Dissent in 303 Creative.2 35 A victory for the same-sexcouple in Masterpiece Cakeshop:would mean that "the compelled speech doctrine would cease toexist," that the Thirteenth Amendment would be violated, and thatthe government could "compel attendance at religious rituals." Itcould disbar Christian lawyers and strip Christian doctors of theirmedical licenses. It could force Jehovah's Witness children tosalute the flag, or force Virginia Baptists to pay to supportmainstream Christian teaching. It would be consistent with theSpanish Inquisition, akin to forcing Christians to bow beforeRoman gods, to forcing Jews to submit to the golden statue ofNebuchadnezzar, to the beheading of Sir Thomas More forrefusing to affirm the annulment of Henry VIII's marriage toCatherine of Aragon and sign the Oath of Succession confirmingAnne Boleyn's place as Queen of England.236230. Id at 15.231. See Alexander Loehndorf, Rights Talk and Constitutional Emotivism,2023 CANADIAN J. L. & JuRIs. 1, 24-27 (2023).232. See Greene, supra note 17, at 78.233. Id at 78-79. See also Loehndorf, supra note 231, at 22-24 (describinghow "constitutional emotivism," defined as "the conflation of moraldisagreements with constitutional rights grievances" has expanded and given riseto a ungrounded competing claims of absolute rights).234. Greene, supra note 17, at 78-79; Loehndorf, supra note 231, at 22-24.235. See Greene, supra note 17, at 80-81.236. Id.[Vol. 84608PUBLIC ACCOMMODATIONS LAWSBut a victory for the baker would "likewise be dismal (though perhaps notequally so) according to the briefs in support of the couple":Arguments of Phillips's sort have been used "to justify anti-miscegenation laws" and "school segregation." "Landlords couldrefuse to rent to interracial couples, employers could refuse to hirewomen or pay them less than men, and a bus line could refuse todrive women to work .... " "[A] racist baker could refuse to sell'Happy Birthday' cakes to African-American customers, a screenprinter could refuse to sell a banner announcing a Muslim family'sreunion, and a tailor could refuse to sell a gay man a custom suitfor a charity gala." "[A] family portrait studio could enforce a 'NoMexicans' policy. A banquet hall could refuse to host events forJewish people. A hair salon could turn away a lesbian woman whowants a new hair style" or refuse to help a teenage girl prepare forher quinceafera out of opposition to Mexican immigration.237Were Greene not writing five years before the Court's 303 Creativeopinion, it would be easy to confuse his portrayal of the MasterpieceCakeshop arties' and amici's claims with the arguments in play in 303Creative.The dynamic between First Amendment rights and the rights ofLGBTQ people illustrates the absolutist treatment of rights that Greenecritiques. Luke Boso describes the "tension between liberty and equality"as an "old yet active fault line that shakes and disrupts our social norms,laws, and the very nature of our public discourse.238 Boso argues that thistension exists in the context of LGBTQ rights as a result of the Courtcarving out exceptions to antidiscrimination laws on First Amendmentgrounds, highlighting the Court's decisions in Hurley and Dale.239Critiques of categorical rights claims should be distinguished fromnotions of First Amendment absolutism. Justice Hugo Black, for example,summed up his approach to free speech rights by stating that the FirstAmendment's statement hat "Congress shall make no law" abridging thefreedom of speech or the press is an absolute ban and that "I believe that'no law' means no law." 240 Black suggested that the notion of unprotected237. Id. at 81.238. Luke A. Boso, Anti-LGBT Free Speech and Group Subordination, 63ARIz. L. REV. 341, 353 (2021).239. See id. at 376-79.240. Edmond Cahn, Justice Black and First Amendment "Absolutes": APublic Interview, 37 N.Y.U. L. REv. 549, 553 (1962). See also Hugo Black, TheBill of Rights, 35 N.Y.U. L. REv. 865, 879 (1960) (describing the Constitution's2024] 609LOUISIANA LAW REVIEWcategories of speech like libel, obscenity, and fighting words should berejected, and strongly opposed the use of "balancing tests" to determinewhether speech falls outside of the First Amendment's protections.2 41 Anabsolutist approach like Black's is both deep and broad, and while itcarries some of the characteristics of the categorical approach byeschewing balancing analysis, it avoids the tendencies of that approach toavoid potential extreme outcomes by developing curtailed, and sometimescontorted, pictures of the scope of the First Amendment's protection.2 4 2Alexander Meiklejohn takes an absolute approach to FirstAmendment protections that looks more like the categorical approach-arguing that First Amendment rights cannot be overridden in situationswhere those rights are exercised in connection with the activities ofgovernance, such as voting, education, literature, and "public discussionsof public issues."243 While Meiklejohn presents this approach in an articletitled, The First Amendment is an Absolute, he dismisses seemingcontradictions in his absolutist approach by noting that "there are manyforms of communication which, since they are not being used as activitiesof governing, are wholly outside the scope of the First Amendment,"including "'libel, slander, misrepresentation, obscenity, perjury, falseadvertising, solicitation of crime, complicity by encouragement, [and]conspiracy.'"244 This qualification distinguishes Meiklejohn's approachfrom that of stronger absolutists like Black, who take issue with the testsused to define these unprotected forms of speech and argue for a farbroader range of First Amendment protections.245 But it is closer to theabsolutism characterized by 303 Creative and related disputes-where theanalysis boils down to an absolute recognition of the state's interest in"absolute guarantees of individual rights"). See also N.Y. Times Co. v. Sullivan,376 U.S. 254, 297 (1964) (arguing that the First Amendment should be read tobar all libel suits arising from criticism of the "government, its actions, or itsofficials").241. See Konigsberg v. State Bar of Cal., 366 U.S. 36, 66-67 (1961) (Black,J., dissenting).242. See Greene, supra note 17, at 33-34, 70-79.243. See Alexander Meiklejohn, The First Amendment is an Absolute, 1961 S.CT. REv. 245, 256-57 (1961). Meiklejohn makes this point elsewhere as well,noting that the absolute language of the First Amendment "admits of noexceptions" and "[t]o say that no laws of a given type shall be made means thatno laws of that type shall, under any circumstances, be made." ALEXANDERMEIKLEJOHN, POLITICAL FREEDOM: THE CONSTITUTIONAL POWERS OF THEPEOPLE 20 (1960).244. MEIKLEJOHN, supra note 243, at 258 (quoting Konigsberg, 366 U.S. at 49).245. See Konigsberg, 366 U.S. at 63-64 (Black, J., dissenting).[Vol. 84610PUBLIC ACCOMMODATIONS LAWSpreventing discrimination, or the absolute recognition of a business's orindividual's right to free speech.B. Categorical Rights Claims in the Court's Public AccommodationsCasesWhile Greene does not discuss the Court's decisions in Bob JonesUniversity, Roberts, Hurley, or Dale, these cases all bolster his case thatthe modern Court applies a categorical approach to rights disputes.246 Asdiscussed previously, the Court's approach to the clash between the rightof access and First Amendment claims tends to involve little meaningfulbalancing of interests.2 47 In cases ruling in favor of laws requiringnondiscrimination, the Court reached its decision by both noting thecompelling government interest in avoiding discrimination, whilesimultaneously downplaying the notion that speech rights were burdenedin any meaningful way. In Bob Jones University, for example, the Courtemphasized the "compelling" interest in "eradicating racial discriminationin education," and concluded that this interest "substantially outweighswhatever burden denial of tax benefits places on petitioners' exercise oftheir religious beliefs," without delving into the nature of those interestsor the burden of the denial of benefits.248 The Court stated that thoseinterests "cannot be accommodated with that compelling governmentalinterest," and concluded, without analysis, that no less restrictive meanswere available to achieve the interest in eradicating discrimination.249 TheCourt was even more explicit in Roberts, finding not only that the statehad a compelling interest in "[a]ssuring women equal access to ... goods,privileges, and advantages," but that the Jaycees had "failed todemonstrate that the [Public Accommodations] Act imposes any seriousburdens on the male members' freedom of expressive association."2 50 Inboth of these cases, the Court found in favor of the state by minimizing theasserted speech rights of the organization challenging the non-discrimination laws, an approach consistent with the categorical approachto rights that Greene critiques.'246. See generally Bob Jones Univ. v. United States, 461 U.S. 574 (1983);Roberts v. U.S. Jaycees, 468 U.S. 609 (1984); Hurley v. Irish-Am. Gay, Lesbian& Bisexual Grp. of Bos., 515 U.S. 557 (1995); Boy Scouts of Am. v. Dale, 530U.S. 640 (2000).247. See supra notes 181-90 and accompanying text.248. See Bob Jones Univ., 461 U.S. at 604.249. Id.250. Roberts, 468 U.S. at 626.251. See Greene, supra note 17, at 33-34.2024] 611lLOUISIANA LAW REVIEWDespite such a one-sided approach in cases rejecting First Amendmentclaims against non-discrimination laws, the Court takes a similarcategorical approach in the opposite direction when ruling in favor of thosechallenging public accommodations laws. In Hurley, the Courtacknowledged that Massachusetts' public accommodations law, "[o]n itsface," served the objective of ensuring that gays and lesbians who wantedto use public accommodations would "not be turned away merely on theproprietor's exercise of personal preference."2 5 2 But in the context ofapplying this law to bar parade organizers from turning away a group ofgay, lesbian, and bisexual Irish-Americans, this interest shifted from ananti-discrimination purpose to one of "requir[ing] speakers to modify thecontent of their expression to whatever extent beneficiaries of the lawchoose to alter it with messages of their own."2 s3 With this framing, thegovernment's position is easy to reject, and the Court does soemphatically:The very idea that a noncommercial speech restriction be used toproduce thoughts and statements acceptable to some groups or,indeed, all people, grates on the First Amendment, for it amountsto nothing less than a proposal to limit speech in the service oforthodox expression. The Speech Clause has no more certainantithesis.254This approach, which emphasizes the speech interests of the paradeorganizers while casting the government's interest as little more thanseeking to enforce its own views and opinions, demonstrates the tendencyof a categorical rights approach to maximize one rights claim whiledownplaying or ignoring any interests to the contrary.In Dale, the Court took a subtler approach, albeit one that is stillconsistent with the categorical rights approach. There, the Courtdistinguished contrary cases like Roberts as instances whereorganizations' First Amendments were not burdened in any meaningfulway-unlike the case before it, which involved a burden on the BoyScouts' right of expressive association.2 ss While suggesting that "theassociational interest in freedom of expression has been set on one side ofthe scale, and the State's interest on the other," the Court did little in theway of weighing either interest-instead citing its decision in Hurley,252. Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557,578 (1995).253. Id.254. Id.255. See Boy Scouts of Am. v. Dale, 530 U.S. 640, 658-59 (2000).[Vol. 84612PUBLIC ACCOMMODATIONS LAWSasserting that enforcing the public accommodations law would"significantly burden the organization's right to oppose or disfavorhomosexual conduct," and concluding that "[t]he state interests embodiedin New Jersey's public accommodations law do not justify such a severeintrusion on the Boy Scouts' rights to freedom of expressiveassociation."25 6 Nowhere in this analysis does the Court explicitly describethe State's interest, and nowhere does the Court elaborate on why theburden on the Boy Scouts' expressive rights is as "severe" as the Courtclaims. While the Dale Court was not as explicit in its one-sided analysisas it was in Hurley, this approach to the dispute-coupled with its explicitreliance on Hurley throughout the analysis-strongly suggests that thecategorical approach is once again at work.This brings us to 303 Creative, a case that brings the categoricalapproach to a head. The discussion above illustrates how the Court'sopinion fits into the categorical reasoning that Greene critiques.2 7 At theoutset of its analysis, the Court pays lip service to the government interestsin play, noting its previous recognition "that governments in this countryhave a 'compelling interest' in eliminating discrimination in places ofpublic accommodation."25 8 But this compelling interest is quickly replacedby a story of expanding government power-with Colorado and otherstates passing public accommodations laws prohibiting discrimination onthe basis of sexual orientation.25 9 And after a brief survey of its opinionsin Hurley and Dale, the state's interest becomes not one of anti-discrimination, but the conscription of private business owners "todisseminate the government's preferred messages," an outcome that"would spell [the] demise" of the First Amendment.260 The 303 CreativeCourt bolsters this rhetoric with horror stories of the implications of acontrary decision, including compelled Zionist films, atheists being forcedto paint evangelical murals, and gay website developers being forced tomake websites for organizations advocating against same-sex marriage.261Gone is any discussion seeking to balance the State's interest in preventingdiscrimination against the speech interests of website designers. Indeed,that interest is all but forgotten in the Court's overwhelming focus onSmith's speech interests and the prospects of Colorado using public256. Id at 659.257. See supra Part I.258. 303 Creative LLC v. Elenis, 600 U.S. 570, 590 (2023).259. See id. at 590-92.260. See id. at 592.261. See id. at 589-91. See also supra Part III (discussing and critiquing theCourt's reliance on hypotheticals).2024] 613LOUISIANA LAW REVIEWaccommodations laws to enforce its preferred orthodoxy.262 With such aframing, how could any other outcome be possible?Some may disagree with this characterization of the 303 Creative case.William Dailey, for example, mirrors the Court's reasoning by repeatingthe Majority's claim that a contrary rule would "force a man married toanother man to design a website opposing same-sex marriage," anddescribing the dissent's hypotheticals as "quite misleading" in light ofSmith's stipulation that she would provide services to gay people "in allways but those that would require her to create speech that she disagreedwith." 263 As Dailey portrays it, "while she would decline to create a lesbiancouple's wedding site, she would happily work with them on their businesssite."2" In response to backlash about the decisions likely consequences,Dailey asserts that "nothing in the opinion suggests that the proverbiallunch counter may now be closed to L.G.B.T. people" and describes theCourt's ruling as "narrow." 265Interestingly, Dailey invokes Greene's scholarship on rights, andfavorably cites his "prudent guidance" against absolutism and that courtsshould resolve rather than escalate conflicts.26 6 How this applies to 303Creative is unclear. Indeed, Dailey references Greene after describingbacklash to the 303 Creative decision, suggesting that he may hold thedissenting justices or critics of the opinion at fault for engaging in rightsabsolutism.2 67 Dailey goes on to compare 303 Creative to a separate,unanimous ruling in Groff v. DeJoy, which involved a dispute over afederal postal worker's request for a religious accommodation.268 Daileyconcludes his article with the following summation:The court unanimously followed the path of engaging one anotheras neighbors rather than litigants in Groff, but it was divided onhow to do so in 303 Creative. That means we will continue to havethe challenge, and the opportunity, to learn to be more hospitableto those with whom we differ. Rights like free speech, after all,are only meaningful when we recognize them for people withwhom we disagree, sometimes passionately. People may also262. 303 Creative, 600 U.S. at 589-91.263. See Dailey, supra note 11.264. Id. One could just as easily state that "Smith stipulated that she wouldprovide the service of creating wedding websites to all customers other than thosewho happened to be gay." But that wouldn't be as good for the argument.265. Id.266. Id. (citing Greene, supra note 17).267. Id.268. Id. (discussing Groff v. DeJoy, 143 S. Ct. 2279 (2023)).[Vol. 84614PUBLIC ACCOMMODATIONS LAWSdiffer about whether pressing one's right in a given instance isobligatory or wise. We may find in considering such a path ofconciliation that graces abound for us, as they did for thatanonymous woman of Shunem and the great prophet Elisha.269On one reading, Dailey appears to be invoking Greene's critique ofrights absolutism to chide the dissent and critics of the Court's 303Creative ruling for raising the temperature of the dispute. If that is hispoint, then this entire Article demonstrates why such a claim is misplaced.An alternative, more charitable reading is that one must keep Greene'smessage in mind in a post-303 Creative world. If this is what Dailey isgetting at, his invocation of Greene's reasoning in an article that fails toacknowledge the 303 Creative Court's absolutist approach is puzzling. Butbringing Greene's work into the picture is a move worth making. I nowturn to how Greene's reasoning has a place in discussions of 303 Creativeand how similar rights disputes may be adjudicated in a more nuanced andcontext-sensitive manner.C. An Alternative: ProportionalityAt the outset of this Part, I introduced Jamal Greene's portrayal offraming rights disputes as categorical disputes-a framing that results inan all-or-nothing tendency of resolving rights claims, devaluing one sideof the dispute in favor of the other, and creating confusing accounts of thescope of rights as new conflicts arise. Greene goes on to offer analternative approach in which courts take a proportional approach to rightsdisputes.Greene contrasts the categorical approach to rights claims with a"proportionality" framing of rights, which involves "a structured approachto limitations on rights."27 0 Greene writes that this approach is best"understood as a transsubstantive analytic frame, a kind of intermediatescrutiny for all, that is designed to discipline the process of rightsadjudication on the assumption that rights are both important and, in ademocratic society, limitable." 271 Rather than treat a finding that one side'srights simply trump the rights of others, recognition of rights on all sidesand of the conscious weighing of each side's claims against the other is amore favorable approach. Greene argues that this approach will "forcelitigants and their fellow citizens to match their claims to this world, and269. Id.270. See Greene, supra note 17, at 58.271. Id.2024] 61 5LOUISIANA LAW REVIEWto acknowledge the mutual and legitimate presence within it of others whohold contrary values and commitments."2 72The seeds of this approach to rights proportionality can be foundthroughout the literature analyzing the tension between publicaccommodations laws and the First Amendment. Enrique Armijo proposesa version of "Faint-Hearted First Amendment Lochnerism,"acknowledging the Court's willingness to strike down laws on free speechgrounds, but suggests boundaries for First Amendment rights originatingin private law-arguing that the "First Amendment should not stand in theway of government compulsions of speech where a failure to disclose thatsame information would be a basis for private law liability." 273 Armijodraws on a number of examples from civil law and applies them to lawsand regulations regarding fraud, compelled disclosure, and informedconsent requirements.2 74This approach, however, does not cleanly apply to publicaccommodations laws-a scenario in which "the government is affectingspeech in ways only it can."2 7 Armijo suggests that while such laws willbe subject to First Amendment scrutiny, the interest in eradicatingdiscrimination will likely be compelling enough to justify interferencewith the right to free speech-although the government will be required toact "as narrowly as possible to achieve its goal." 276 While thischaracterization is conclusory and, in the case of the discrimination againstsexual orientation, ultimately disproven by 303 Creative, it hints at abalancing of interests that is absent from the case law.Discussing Bob Jones University and Roberts, David Bernstein framesthe Bob Jones and Roberts outcomes as instances in which "a state'sinterest in eradicating discrimination can trump a constitutional right." 2 77Bernstein expresses skepticism over the outcome in Roberts, noting thatfederal law did not prohibit public accommodations discrimination on thebasis of sex and referred only to a state's "purportedly compelling" interestto "overrid[e] a federal right"-an outcome that Bernstein characterizes asbizarre.278 While Bernstein is skeptical to the outcome in Roberts, hiscritique contains the skeleton of a proportionality approach-albeit oneapplied in a questionable manner. Bernstein's argument may be272. Id. at 82.273. Armijo, supra note 119, at 1399.274. See id. at 1400-15.275. See id. at 1429-30.276. See id. at 1430.277. See David E. Bernstein, Sex Discrimination Laws Versus Civil Liberties,1999 U. Cm. LEGAL F. 133, 163-64 (1999).278. See id. at 164.[Vol. 84616PUBLIC ACCOMMODA TIONS LAWSsupplemented by suggesting that a right of access based in federal law hasmore democratic legitimacy-as a majority of lawmakers representingpeople from across the country, rather than a single state, would need toreach a consensus that such a statutory right is required.A proportionality approach in a case like 303 Creative would delveinto the interests on both sides and avoid outcome-orientedmischaracterizations and hypotheticals. This is not to say that reasoningfrom hypotheticals is off-limits. Indeed, doing so remains essential forparsing out the interests at issue by comparing them with alternatescenarios. For example, determining the level of the free speech interestsin 303 Creative would involve a comparing the magnitude of the freespeech interest behind preparing a wedding website for a same-sex coupleswith alternate hypotheticals, like preparing a business website for thatsame couple, or preparing a website advocating in favor of same-sexmarriage for that same couple. Smith's own admissions suggested that herspeech interests are minimal or nonexistent in the case of the businesswebsite, as she stipulated that she was "'willing to work with all peopleregardless of classifications such as race, creed, sexual orientation, andgender,' and she 'will gladly create custom graphics and websites' forclients of any sexual orientation."2 79But what if those clients "of any sexual orientation" sought to make awebsite espousing the virtues of same-sex marriage? Smith claims that she"will not produce content that 'contradicts biblical truth' regardless of whoorders it," which, combined with her "sincerely held religious conviction"that "marriage is a union between one man and one woman" suggests thatthis would be contrary to what she wishes to express.280 Smith wouldarguably have a stronger speech claim in a case like this, compared with acase where she was making some generic business website, because thespeech at issue is political speech-which the Court recognizes is at thecore of First Amendment protections.281This context helps inform an inquiry into Smith's speech interests in303 Creative. Preparing a wedding website for a same-sex couple isexpressive conduct-it involves speech, such as how the couple met, whatthey do for a living, where they live, and when the wedding will be, forexample. But it's a logical leap to hold this speech equivalent to theexpressive conduct of preparing a website making political arguments infavor of same-sex marriage. While Smith stipulated that her weddingwebsites would be "expressive in nature" and that the websites would279. 303 Creative LLC v. Elenis, 600 U.S. 570, 582 (2023).280. See id.281. See discussion supra note 127.2024] 617LOUISIANA LAW REVIEW"express Ms. Smith's and 303 Creative's message celebrating andpromoting' her view of marriage," this is not so much a stipulation of factas it is to a legal conclusion regarding the level of Smith's speech rights.28 2To pause the proportionality analysis for a moment, one may arguethat creating a wedding website for a couple of any race or gender makeupconstitutes a political statement in favor of that particular form ofmarriage. But this argument is questionable. For one, much, if not all, ofthe wedding website's speech will originate not with the website developerbut with the couple themselves, who will provide the information on howthey met, what they do, where they live, where the wedding will be, andwhether the dress code will be white-tie, black-tie, formal, cocktail, semi-formal, festive, casual, tropical, themed, come as you are, business casual,or clothing-optional.283 And does everything on the website bear Smith'sseal of tacit approval? If the couple requires a white-tie or black-tie dresscode, is Smith endorsing events that are overly formal and alienating tonormal people? If the wedding is in a red state or a blue state, is Smithagreeing to the politics of the location? And, God forbid, what sort ofspeech is Smith advancing if the wedding is themed? If it's a Disneywedding, is Smith advocating a Disney Adult lifestyle?284And even if one grants the assumption that creating a wedding websitefor a same-sex couple expresses some level of approval for the institutionof same-sex marriage, there still seems to be a meaningful differencebetween the implied approval of a wedding website and the explicitapproval of that form of marriage through a political advocacy site.Accordingly, even if one grants Smith's claim that her creation of awedding website for a same-sex couple would send a message of approvalregarding same-sex marriages, the infringement of her speech interests isof a lower degree than the alternate scenario of a same-sex couple askingfor a website making political arguments in favor of same-sex marriage.Getting back to the proportionality discussion, proportionality alsorequires consideration of the government's interest as well. This means nolonger minimizing or ignoring the interest of eliminating discrimination asthe Court did in Hurley and Dale. But it also means no minimizing orignoring the interest of those challenging the law, as the Court did inRoberts and Bob Jones University. To be sure, those interests may be282. See 303 Creative, 600 U.S. at 582.283. See Jen Glantz, Every Wedding Dress Code Explained, BRIDES (June 1,2023), https://www.brides.com/story/wedding-dress-code-explained [https://perma.cc/UGC4-E6RC] (where I got most, but not all, of these dress code labels).284. See Deanna Schwartz, For some adults who love Disney, it's like areligion, NAT'L PUB. RADIO (June 11, 2022), https://www.npr.org/2022/06/11/1104056661/disney-adults [https://perma.cc/NZ55-GJHY].[Vol. 84618PUBLIC ACCOMMODATIONS LAWSgenerally abhorrent, such as the sincere belief that "the Bible forbidsinterracial dating and marriage."285 But to the extent that abhorrent beliefsare implicated in a rights dispute, there's a fair probability that the interestin preventing discrimination will be even stronger.2 86Jamal Greene suggests how a proportionality approach may be usedto address the dispute in Masterpiece Cakeshop, arguing that a court"could have imposed a duty on Phillips to provide a custom cake-or itsequivalent-to Craig and Mullins." 287 Phillips could have hired a sous chefor a subcontractor who could have prepared the cake behind the scenes.288Alternatively, Greene suggests that wedding ceremonies themselves betreated as fundamentally different from other activities that may be subjectto public accommodations laws, given the inherently expressive nature ofweddings.2 89 Greene acknowledges these are not perfect solutions-couples may still suffer harm to their dignity by being relegated to asubcontractor or suffering speech-based iscrimination to the extent theirwedding is concerned-but the balancing of the interests may still bepreferable to an extreme, categorical approach that ultimately recognizesone side's claim as absolute with the other side's claim as virtuallynonexistent.290And consider how the proportionality analysis would change theCourt's framing of the dispute in 303 Creative. Rather than portraying thecase as a government seeking to impose a preferred orthodoxy to force abusinessowner to speak in a certain way, the analysis would require a diveinto the interests on both sides. For Smith, such an approach wouldrecognize that she does have speech interests in play and wouldacknowledge her concern over the message her website would send abouther views on same-sex marriage. At the same time, this approach woulddistinguish the expressive act of creating a wedding website from alternateactions like Smith creating her own website professing her views on theissue of same-sex marriage or being required to create a website espousingthe moral, political, and religious legitimacy of same-sex marriage-actions that would implicate her speech interests to a greater degree.285. See Bob Jones Univ. v. United States, 461 U.S. 574, 580 (1983).286. This may lead to outcomes that track constitutionally protected classes,although the case-by-case nature of proportionality analysis allows the Court tobe more flexible in weighing interest than is permitted under the set-in-stonecategories of constitutionally suspect classes.287. Greene, supra note 17, at 162.288. Id.289. Id.290. See id. at 162-63.2024] 619LOUISIANA LAW REVIEWThe approach would also look to context, including the fact that Smithis not a random citizen forced into sending a message by a maliciousgovernment, but a citizen who decided to get into the wedding websitebusiness with full knowledge that laws now permit same-sex people to getmarried. This is not to say that Smith's assumption of the risk thatconsumers would seek out a same-sex wedding completely negates herright to free speech, but it may undermine the strength of Smith's speechclaims. And unlike the 303 Creative Court's analysis, a proportionalanalysis of the dispute would recognize the government's interest inpreventing discrimination against groups who have faced historicaldiscrimination-particularly in Colorado.291 Rather than pay hasty lipservice to the interest without considering whether it is compelling or howit stacks up against Smith's speech claims, a proportional analysis willlook into historical and contemporary discrimination against LGBTQpeople and how this factors in to the strength of the state's countervailinginterests.292This discussion and these examples highlight only several aspects ofthe nuanced analysis that proportionality brings to rights disputes. To besure, a wholesale adoption of this approach could lead to the complicationor elimination of clear constitutional rules. But to the extent that these rulestend to be based on overly abstract, extreme reasoning characteristic ofcategorical framing, this change may be welcome. As Greene argues:Mediating rights would mean shifting our collective emphasisfrom whether the Constitution includes particular rights to whatthe government is actually doing to people and why. Courts shoulddevote less time to parsing the arcane legalisms-probes oforiginal intentions, pedantic textual analysis, and mechanicalapplication of precedent-that they use to discriminate between291. See Romer v. Evans, 517 U.S. 620, 623-24 (1996).292. An analysis of contemporary trends will reveal that things look prettydire. See Dustin Jones & Jonathan Franklin, Not just Florida. More than a dozenstates propose so-called "Don't Say Gay" Bills, NAT'L PUB. RADIO (Apr. 10,2022, 7:01 AM), https://www.npr.org/2022/04/10/1091543359/15-states-dont-say-gay-anti-transgender-bills [https://perma.cc/X9FB-FYFT]; Jo Yurcaba, Withover 100 anti-LGBTQ bills before state legislatures in 2023 so far, activists saythey're "fired up", NBC NEWS (Jan. 14, 2023, 7:50 AM), https://www.nbcnews.com/nbc-out/out-politics-and-policy/100-anti-lgbtq-bills-state-legislatures-2023-far-activists-say-fired-rcna65349 [https://perma.cc/JKU2-HHQD]; AnnetteChoi & Will Mullery, 19 states have laws restricting gender-affirming care, somewith the possibility of a felony charge, CNN (June 6,2023, 3:10 PM), https://www.cnn.com/2023/06/06/politics/states-banned-medical-transitioning-for-transgender-youth-dg/index.html [https://perma.cc/24QM-FTVM].[Vol. 84620PUBLIC ACCOMMODATIONS LAWSthe rights they think the Constitution protects and the ones theythink it doesn't and spend more time examining the facts of thecase before them: What kind of government institution is acting?Is there good cause grounded in its history, procedures, orprofessional competence to trust its judgments? What are its statedreasons? Are those reasons supported by evidence? Are therealternatives that can achieve the same ends at less cost toindividual freedom or equality? Knowing that courts will ask thesekinds of questions makes other government actors ask them, too,as they craft their own policies and structure their own behavior.It makes rights recognition and enforcement a shared enterprise,one that is of, by, and for all the people and not just the judges.293Critics may argue that all of this discussion over proportionality ismisguided, because situations like that in 303 Creative do not involvecompeting rights claims. Businesses and individuals subject to publicaccommodations laws have such a claim, as they're invoking their right tofree speech. But the government, in passing laws prohibitingdiscrimination on the basis of identified protected classes, does not have asimilar set of rights claims, as it is ultimately unaffected by discriminatorypractices and, as a government, cannot be deemed to hold rights.This approach takes too narrow of a view of constitutional disputesover public accommodations laws. Public accommodations laws are notproperly viewed as conflicts solely between a business and thegovernment, as these laws are only "invoked when an individual seeksaccess to an establishment and the proprietor tries to prevent hisentrance."2 94 This implicates the right of individuals to "be free fromdiscriminatory practices when they participate in the marketplace," or a"right of access," with longstanding roots in the common law.295 Publicaccommodations laws define and, in some cases, expand the scope of thisright of access by prohibiting discrimination against consumers by a wider293. Greene, supra note 17, at xx.294. See Lauren J. Rosenblum, Note, Equal Access or Free Speech: TheConstitutionality of Public Accommodations Laws, 72 N.Y.U. L. Rev. 1243, 1249(1997).295. See Lucien J. Dhooge, Public Accommodation Statutes and SexualOrientation: Should There Be a Religious Exemption for Secular Businesses?, 21WM. & MARY J. WOMEN & L. 319, 368 (2015) ("Individuals have a right to befree from discriminatory practices when they participate in the marketplace.").See generally Joseph William Singer, No Right to Exclude: PublicAccommodations and Private Property, 90 Nw. U. L. REv. 1283 (1996)(discussing the history and evolution of the common law right of access).2024] 621LOUISIANA LAW REVIEWrange of businesses.29 6 It is therefore proper to view constitutionallitigation over public accommodations laws as a conflict between theindividual right of access and businesses' right of free speech.Critics may also take issue with the proportionality approach byarguing that it gives too much power to judges and Justices to determinethe scope of rights. Eric Segall critiques Greene's proposal approach byarguing that such an approach cedes too much power to unelected judgesand Justices:[T]he real problem is that federal courts just make too manyimportant decisions. Adding more factors, flexible balancing tests,and warm rhetoric about competing rights by the Justices wouldlikely just push these issues to the lower courts and not to localand national politics, where they truly belong.297Under Segall's approach, "[w]here the constitutional text is unclear, andthe history contested, judges should stay out of major politicalcontroversies, not inject more subjective judicial factors into them."298Segall's arguments against expansive judicial review and theredistribution of power to other branches are far more extensive than thoseset forth in his critique of Greene and can only be addressed briefly here.299To start, though, caution is warranted when critiquing judicial review infavor of pushing disputes over rights into other branches of government.296. See Rashmi Dyal-Chand, Autocorrectingfor Whiteness, 101 B.U. L. REV.191, 238 (2021) ("Since as early as the enactment of the Civil Rights Act of 1866,statutory and case law has articulated a clear right of access that overrides therights of owners of public accommodations to exclude individuals on the basis ofrace and other protected classes."); Michael J. Klarman, The Plessy Era, 1998 S.CT. REv. 303, 307 (1998) ("Additional civil rights legislation enacted in the 1870ssolidified protection for the suffrage, as well as forbidding race discrimination injury selection and guaranteeing blacks equal rights of access to common carriersand public accommodations."); Pamela Griffin, Comment, Exclusion and Accessin Public Accommodations: First Amendment Limitations Upon State Law, 16PAC. L.J. 1047, 1047-48 (1985); but see Singer, supra note 295, at 1292-93(arguing that the historical evidence is "not at all clear" on whether the "c.mmonlaw always limited the duty to serve the public to innkeepers and commoncarriers").297. Eric J. Segall, The Battle Over Rights Is the Problem But Judges Are Notthe Solution, 37 CONST. COMMENT. 171, 180 (2022).298. Id. at 181.299. See, e.g., ERIC J. SEGALL, SUPREME MYTHS: WHY THE SUPREME COURTIS NOT A COURT AND ITS JUSTICES ARE NOT JUDGES (2012) (arguing that theSupreme Court decides cases on the basis of ideological preferences rather thanlaw and arguing for reforms to reduce the Court's power).[Vol. 84622PUBLIC ACCOMMODATIONS LAWSSegal favors returning many hot-button rights disputes "to the states andhaving them decided locally," claiming that keeping judges out of "majorpolitical controversies" will "facilitate more healthy discussion amongboth our citizens and elected officials."3 00 This claim, however, minimizesdemocratic shortcomings at the state and local level-wheregerrymandering and turnout issues may result in state and local policiesthat are not representative of the community.30' In light of theunrepresentative nature of state and local governments, it is less clear howmuch less representative court determinations are than governmentpolicies.More fundamentally, though, it is unclear how moving from anabsolutist approach to rights disputes to a proportional approachindependently results in greater power to the judiciary. Segall's critiquedraws its force from extensive judicial review practices and the notion thatthe judiciary has the final word in rights disputes. These are differentissues from how rights disputes themselves are adjudicated, and it isunclear how courts taking a more proactive stance to recognizing bothsides of a dispute and considering more factual circumstances increasescourts' overall power. Indeed, the alternative is for courts to simply hangtheir hats on a winner-take-all rule and decide in favor of a party on thebasis of little more than this determination. If courts are required to gothrough more analytical hoops in a proportional analysis, this at leastforces them to set forth claims on all sides and address relevant facts andinterests that may render the ultimate outcome less extreme. While thismay not solve problems of courts' disproportionate power over rightsdisputes, it may lead to more nuanced and thought-out determinations bycourts.CONCLUSIONIf we are to take the Court at its word, 303 Creative is a limited opinionthat will have minimal implications for public accommodations laws. Butthe Court's own reasoning gives us ample reason to doubt it. In the face ofa Colorado law prohibiting discrimination on the basis of sexualorientation in providing goods and services, the Court implied that300. See Segall, supra note 297, at 179, 181.301. See ZOLTAN L. HAJNAL, AMERICA'S UNEVEN DEMOCRACY: RACE,TURNOUT, AND REPRESENTATION IN CITY POLITICS 24, 42-43 (2010) (describinglow turnout rates in local elections and how turnout rates vary by race); MiriamSeifter, Countermajoritarian Legislatures, 121 COLUM. L. REv. 1733, 1759-62(2021) (describing barriers to representation at the level of state legislatures, suchas winner-take-all rules and gerrymandering).2024 ] 623LOUISIANA LAW REVIEWpenalties for discrimination in the provision of same-sex wedding serviceswould lead to a world of atheists forced to make evangelical murals andgay people forced to develop homophobic websites.02 To be clear,Colorado's Anti-Discrimination Act did not prohibit discrimination on thebasis of film content or homophobia. And were it to do so, it would be acontent-based restriction on speech deserving of strict scrutiny from theoutset.These inconvenient facts did not stop the Court from relying onoverwrought hypotheticals and mischaracterizations of the State's interestto reach its decisions. In doing so, the Court signaled that its opinion mayapply to cases beyond the scope of the case before it. And the Court's rushto rely on such flawed argumentation should prompt us to take the Court'sassurances that its opinion is limited with more than a grain of salt.303 Creative has the potential to disrupt a host of publicaccommodations laws. Expansive claims of expressive conduct andextending First Amendment claims to justify racial discrimination are onlytwo examples of what the Court's logic permits. Should the Court take upreligious freedom as a further basis for invalidating publicaccommodations laws, the boundaries of constitutionally shieldeddiscrimination will continue to grow.But there are limits the Court may impose. A minimalist Court mayrely on suspect classes it has identified in Equal Protection cases to keepFirst Amendment claims from justifying attempts to discriminate based onrace or sex. Such an approach, however, is stagnant-relying on aninflexible, limited number of suspect classes ill-suited for evolvingprejudices. Instead, courts ought to seriously consider a proportionalityapproach to adjudicating rights claims-delving into the intricacies ofclaimed expressive interests, the state's interests in preventingdiscrimination, and the context in which each dispute plays out. Doing somay lead to a less absolutist approach to rights disputes, mitigate distortionin setting out the scope of rights, and move discussions over rightsviolations away from the divorced, abstract realm of legal theorizing tosomewhere closer to reality.302. 303 Creative LLC v. Elenis, 600 U.S. 570, 590 (2023).[Vol. 84624

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