| Original Full Text | Boston University School of Law Scholarly Commons at Boston University School of Law Faculty Scholarship 2024 Do Public Accommodations Laws Compel “What Shall Be Orthodox”?: The Role of Barnette in 303 Creative LLC v. Eleni Linda C. McClain Boston University School of Law Follow this and additional works at: https://scholarship.law.bu.edu/faculty_scholarship Part of the Civil Rights and Discrimination Commons, and the Supreme Court of the United States Commons Recommended Citation Linda C. McClain, Do Public Accommodations Laws Compel “What Shall Be Orthodox”?: The Role of Barnette in 303 Creative LLC v. Eleni , in 68 Saint Louis University Law Journal (2024). Available at: https://scholarship.law.bu.edu/faculty_scholarship/3738 This Article is brought to you for free and open access by Scholarly Commons at Boston University School of Law. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarly Commons at Boston University School of Law. For more information, please contact lawlessa@bu.edu. Do Public Accommodations Laws Compel “What Shall Be Orthodox”?: The Role of Barnette in 303 Creative LLC v. Eleni Boston University School of Law Research Paper Series No. 24-4 March 1, 2024 Linda C. McClain School of Law, Boston University Electronic copy available at: https://ssrn.com/abstract=4745476 1 Do Public Accommodations Laws Compel “What Shall Be Orthodox”?: The Role of Barnette in 303 Creative LLC v. Elenis Linda C. McClain1 (forthcoming, 68 SAINT LOUIS UNIVERSITY LAW JOURNAL, 2024) By allowing all views to flourish, the framers understood, we may test and improve our own thinking both as individuals and as a nation. For all these reasons, “[i]f there is any fixed star in our constitutional constellation,” West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 642 (1943), it is the principle that the government may not interfere with “an uninhibited marketplace of ideas,” McCullen v. Coakley, 573 U.S. 464, 476 (2014). —303 Creative LLC v. Elenis, 600 U.S. 570, 584-85 (2023) [I]t is dispiriting to read the majority suggest that this case resembles [Barnette]. A content-neutral equal-access policy is “a far cry” from a mandate to “endorse” a pledge chosen by the Government. FAIR, 547 U. S. 47, 62 (2006). This Court has said “it trivializes the freedom protected in Barnette” to equate the two. Requiring Smith’s company to abide by a law against invidious discrimination in commercial sales to the public does not conscript her into espousing the government’s message. It does not “invad[e]” her “sphere of intellect” or violate her constitutional “right to differ.” All it does is require her to stick to her bargain [to offer her services to the public, not “retreat from the promise of open service.” —303 Creative LLC v. Elenis, 600 U.S. 570, 636 (2023) (Sotomayor, J., dissenting) Introduction Public accommodations laws are an example of positive federal and state governmental action undertaken to prevent the denial of—as such laws typically express it—the “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place 1 Robert Kent Professor of Law, Boston University School of Law. Many thanks to Carlos Ball, who delivered the 2023 Richard J. Childress Memorial Lecture, “Progressive Constitutionalism and its Libertarian Discontents: The Case of LGBTQ Rights,” at Saint Louis University School of Law, and to symposium editor Ryan Brooks, who invited me to participate in the related program. Thanks also to my co-panelists for their insightful commentaries, particularly Elizabeth Sepper, who commented on an earlier draft of this article. I benefited from comments at a faculty workshop at the University of Arizona, James E. Rogers College of Law. I am grateful to BU Law student Sanketh Bhaskar for valuable research assistance. This article also benefitted from discussion with and comments by James Fleming, my co-author on a related book project, “What Shall Be Orthodox” in Polarized Times. Electronic copy available at: https://ssrn.com/abstract=4745476 2 of public accommodation.”2 Such laws prohibit discrimination on the basis of certain categories or characteristics: race, color, religion, or national origin in Title II of the landmark Civil Rights Act of 1964 and, in most states, a broader set of protected classifications, including not only sex, but also—in about half the states—sexual orientation and gender identity.3 Such laws have been the target of “unrelenting” objections, including libertarian arguments that they intrude on private choice and violate constitutional “rights of contract, association, or freedom from involuntary servitude”4 as well as objections grounded in freedom of religion and speech. This article concentrates on First Amendment objections that the U.S. Supreme Court avoided in Masterpiece Cakeshop v. Colorado Civil Rights Commission5 but embraced (6-3) in 303 Creative LLC v. Elenis6: public accommodations laws compel governmental orthodoxy. These objections invoke West Virginia Board of Education v. Barnette’s celebrated language: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein.”7 They also cite subsequent Supreme Court cases that drew on Barnette to conclude that a state law compelled speech or expression, including Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston8— 2 See, e.g., Col. Rev. Stat., Section 24-34-601 (2) (a) (2023); Elizabeth Sepper, The Original Meaning of “Full and Equal Enjoyment” of Public Accommodations, 11 CAL. L. REV. ONLINE 572, 577 (2021) (explaining that Congress chose the “full and equal enjoyment” text of Title II of Civil Rights Act of 1964 “against the background of state courts’ interpretation of identical, and near-identical, language in state civil rights acts”). 3 Nat’l Conference of State Legislatures, State Public Accommodations Laws, NCSL (June 25, 2021), https://www.ncsl.org/civil-and-criminal-justice/state-public-accommodation-laws (reporting that 25 states protect on the basis of sexual orientation and 24 on the basis of gender identity). 4 See Samuel R. Bagenstos, The Unrelenting Libertarian Challenge to Public Accommodations Laws, 66 STAN. L. REV. 1205, 1217 (2014). 5 584 U.S. ___ 138 S. Ct. 1719 (2018). 6 600 U.S. 570 (2023). 7 319 U.S. 624, 642 (1943). 8 515 U.S. 562 (1995). Electronic copy available at: https://ssrn.com/abstract=4745476 3 which involved the application of Massachusetts’ public accommodations law to a privately organized St. Patrick’s Day parade—and Wooley v. Maynard9—which involved a New Hamphshire law making it a crime to obscure the words “Live Free or Die” on state license plates. Business owners, their lawyers, and judges who have invoked Barnette and its progeny argue that state public accommodations laws requiring that businesses not discriminate based on sexual orientation in providing goods and services compel both speech and silence.10 In 303 Creative, website designer Lorie Smith argued that Colorado’s antidiscrimination law (CADA) compelled her speech by requiring that, if she expanded her business to offer website design for weddings, she must offer those services to same-sex couples on the same terms as different-sex couples, and compelled her not to speak by prohibiting her from posting a statement on her website explaining why she will not design websites for same-sex weddings. 11 Echoing claims made in earlier cases, she argued that if business owners are not exempted from such laws, they are forced to express a governmental orthodoxy at odds with their sincere religious belief about marriage. Along with Barnette’s “fixed star” passage, other famous passages from the opinion also feature in these cases. One is Justice Robert Jackson’s declaration that “the test” of the substance of freedom is “the right to differ as to things that touch the heart of the existing order.”12 Others include references to enforcing rights as preserving the “individual freedom of mind” over 9 430 U.S. 705 (1977). 10 See, e.g., Brief for Petitioners at 28-29, Masterpiece Cakeshop. Ltd. v. Colorado C.R. Comm’n, 138 S. Ct. 1719 (2018) (No. 16-111). 11 Complaint at 5-8, 303 Creative LLC v. Elenis, 405 F. Supp. 3d 907 (D. Colo. 2019), aff'd, 6 F.4th 1160 (10th Cir. 2021), rev’d, 600 U.S. 570 (2023) (No. 1:16-cv-02372). 12 Barnette, 319 U.S. at 642. Electronic copy available at: https://ssrn.com/abstract=4745476 4 “officially disciplined uniformity” and to the First Amendment’s purpose as reserving “from all official control” the “sphere of intellect and spirit.”13 Still another is his dire warning that “compulsory unification of opinion achieves only the unanimity of the graveyard.”14 Also quoted is his eloquent conclusion, “the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings.”15 In 303 Creative, Justice Gorsuch, writing for the 6-3 conservative majority, found persuasive the analogy between business owners being forced to speak and violate conscience and the Jehovah’s Witness public elementary school students in Barnette being compelled to salute the flag. As Carlos Ball observes in this symposium, “[a]ccording to 303 Creative, there is no constitutional difference” between these two contexts; prioritizing Smith’s “right to set restrictions on the expressive services she offered for sale over the equality right of LGBTQ customers,” the majority treated as “constitutionally irrelevant” the fact that Colorado’s antidiscrimination law “became applicable only after the designer chose to sell her services to the general public.”16 Before 303 Creative, other business owners had analogized between a forced flag salute and being required to provide various wedding-related goods and services to same-sex couples, including wedding cakes, photography, video recording, floral arrangements, and invitations. Several state courts rejected the analogy,17 but some accepted it.18 13 Id. at 637, 642. For citations, see 303 Creative, 600 U.S. at 585. 14 Barnette, 319 U.S. at 641. For citations to this passage, see, e.g., Brush & Nib Studio, LC v. City of Phoenix, 448 P.3d 890, 896-97 (Ariz. 2019); Brief of Amici Curiae Prof. Dale Carpenter, Prof. Eugene Volokh, Ilya Shapiro, American Unity Fund, and Hamilton Lincoln Law Institute in Support of Petitioners, at 8, 303 Creative LLC v. Elenis, 600 U.S. 570 (2023) (No. 21-476). 15 See Brief of Amici Curiae Prof. Dale Carpenter et al, supra note 14, at 8 (quoting Barnette, 319 U.S. at 641). 16 Carlos Ball, Progressive Constitutionalism and Its Libertarian Discontents: The Case of LGBTQ Rights, 68 SAINT LOUIS UNIV. L. J. (forthcoming 2024), available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4651650. 17 See, e.g., Elane Photography, LLC. v. Willock, 309 P.3d 53, 64 (N.M. 2013). 18 See, e.g., Brush & Nib Studio, LC v. City of Phoenix, 448 P.3d 890 (Ariz. 2019); Telescope Media Group v. Lucero, 936 F.3d 740 (8th Cir. 2019). Electronic copy available at: https://ssrn.com/abstract=4745476 5 This article evaluates the triumph of the Barnette-inspired compelled speech objections to public accommodations law, with the 303 Creative majority opinion as the primary text. There, Justice Gorsuch quotes the beginning of Barnette’s “fixed star” passage, “if there is any fixed star in our constitutional constellation,” but adapts the rest of the passage. That fixed star becomes “the principle that the government may not interfere with ‘an uninhibited marketplace of ideas.’”19 Here Gorsuch moves from the public school room to the commercial marketplace, which he recasts as a marketplace of ideas. However, his opinion gives little guidance about how broadly the protection of creative expression in this “marketplace of ideas” will extend. He admits possible future “somewhat difficult questions” about “what qualifies as expressive activity protected by the First Amendment,” yet he dismisses as a “sea of hypotheticals” the concerns raised by Justice Sotomayor’s dissent.20 303 Creative’s embrace of the Barnette analogy also invokes the powerful symbolism of constitutional protection of an unpopular, disfavored, persecuted, even hated, religious minority. Indeed, Justice Gorsuch situates the Court’s protection of Smith against compelled speech—and orthodoxy—in the commercial marketplace as the latest in a series of courageous First Amendment decisions by the Court, beginning with Barnette: “Eighty years ago in Barnette, this Court affirmed that ‘no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion,’” even though “the speech rights it defended were deeply unpopular; at the time, the world was at war and many thought respect for the flag and the pledge ‘essential for the welfare of the state.’”21 In most of the recent public 19 303 Creative LLC v. Elenis, 600 U.S. 570, 584-85 (2023). 20 Id. at 599; for Sotomayor’s concerns, see id. at 638-40. 21 Id. at 601-02. Electronic copy available at: https://ssrn.com/abstract=4745476 6 accommodations cases, however, the business owners drawing the analogy belong to Christian majority traditions that (at least until recent decades) enjoyed considerable political success in arguing that the majority had a right to enforce its moral views (if you will, an orthodoxy) upon nonconforming dissenters through civil and even criminal law.22 The expansion of antidiscrimination laws to prohibit discrimination based on sexual orientation, together with Obergefell v. Hodges’s extension of the fundamental constitutional right to marry to same-sex couples, have spurred this shift to rhetoric about hitherto dominant religions being an embattled and unpopular minority at risk.23 Therefore, additional potent sources for claims that public accommodations laws compel orthodoxy are the Obergefell dissents. Most dramatically, Justice Alito’s dissent echoes Barnette through his warning that the Court’s decision “will be used to vilify Americans who are unwilling to assent to the new orthodoxy.”24 At the same time, Smith and others cite to the Obergefell majority opinion for its “promise” to religious believers of their continuing freedom to express their views. The 303 Creative litigation illustrates the intertwining of compelled orthodoxy claims from the Obergefell dissents with invocations of Barnette. 22 See LINDA C. MCCLAIN, WHO’S THE BIGOT: LEARNING FROM CONFLICTS OVER MARRIAGE AND CIVIL RIGHTS LAW 183, 192-93 (2020) (discussing the evolution of the culture wars in Colorado from Romer v Evans to Masterpiece Cakeshop). In a forthcoming article, Kate Redburn charts how certain groups within the “New Christian Right” pursued a political strategy of “attack[ing] gay rights at the ballot box” in the name of protecting morality while the Christian Legal Society and the subsequent Alliance Defending Freedom (ADF) “portrayed Christians as a disfavored minority group in court.” Id. at 26. Redburn discusses how, in Hurley, the ADF relied on Barnette to deploy “speech egalitarianism” in advancing the compelled speech argument and laying the foundation for an “equal right to exclude” in public accommodations that bore fruit in 303 Creative. See Kate Redburn, The Equal Right to Exclude: Compelled Expressive Commercial Conduct and the Road to 303 Creative v. Elenis, 111 CALIF. L. REV. (forthcoming 2024) (draft on file with author). The ADF represented Jack Phillips as well as Lorie Smith. See also Melissa Murray, The Geography of Bigotry, 99 B.U. L. REV. 2611, 2624 (2019) (arguing that assertions of religious exemptions to antidiscrimination laws are a way of shrinking the public sphere and recreating an “earlier epoch” when “sex was confined to heterosexual marriage and homosexuality was condemned”). 23 As Dale Carpenter has argued: “By definition, only groups that are unpopular—in the sense that they are acting contrary to the legislative majority’s demands—will need to defend themselves.” Dale Carpenter, Expressive Association and Anti-Discrimination Law After Dale: A Tripartite Approach, 85 MINN. L. REV. 1515, 1547 (2001). 24 Obergefell v. Hodges, 576 U.S. 644, 741 (2015) (Alito, J. dissenting). Electronic copy available at: https://ssrn.com/abstract=4745476 7 This article argues that 303 Creative’s use of Barnette extracts it from its wartime antitotalitarian context and (as Justice Sotomayor’s 303 Creative dissent warns) “‘trivializes the freedom protected in Barnette,’” while also undermining public accommodations laws.25 Such invocations of Barnette also fail to heed Justice Jackson’s call (in his famous dissent in Terminiello v. City of Chicago) for “practical wisdom” rather than doctrinaire absolutism in applying the First Amendment.26 Part I offers a brief explication of Barnette’s status in the constitutional law canon. I discuss two of Barnette’s progeny, Wooley and Hurley, which feature prominently in arguments that public accommodations laws compel speech and impose a governmental orthodoxy. Part II explains how Barnette and Obergefell intertwine in such claims. To put 303 Creative in context, Part III looks back to one significant case in which business owners unsuccessfully asserted that public accommodations laws prescribed or compelled orthodoxy, Elane Photography LLC. v. Willock. In this pre-Obergefell case, the Supreme Court of New Mexico rejected a photographer’s analogy to Barnette. The majority’s reasoning shaped later state court rulings (including that of the Colorado appellate court in Masterpiece Cakeshop). Of particular interest are the concurring opinion’s explanations of (1) why the analogy between student and business owner fails in light of important civil rights cases concerning race discrimination and (2) why business owners’ participation in the commercial marketplace requires certain limits on their freedom in order to secure the status of equal citizenship for all. Part IV discusses how Justice Kennedy, writing for the Court in Masterpiece Cakeshop, avoided the compelled speech issue 25 303 Creative, 600 U.S. at 636 (Sotomayor, J., dissenting) (quoting Rumsfield v. Forum for Academic and Institutional Rights (FAIR), 547 U.S. 47 (2006)). 26 337 U.S. 1 (1948). Electronic copy available at: https://ssrn.com/abstract=4745476 8 (over the objection of Justice Thomas’s concurrence). Finally, Part V turns to the 303 Creative litigation, highlighting the role of Barnette initially in the Tenth Circuit appeal and ultimately in the Supreme Court’s review. A brief conclusion follows. I. Barnette in the Canon and in Context A. Barnette In West Virginia State Board of Education v. Barnette, the Supreme Court struck down a compulsory flag salute in public schools.27 Jehovah’s Witness children had refused to salute the flag, on the ground that doing so would violate their religious convictions, and had been expelled from school.28 Under the West Virginia law, expelled children could be “proceeded against as a delinquent,” and their parents or guardians were “liable to prosecution.”29 Justice Jackson’s majority opinion protecting their First Amendment right not to be compelled to affirm a belief may be the most eloquent, stirring, and revered opinion in constitutional law.30 Perhaps the most famous passage is Jackson’s declaration quoted above, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein.”31 In recent decades, Barnette’s “fixed star” seems at risk of becoming an exploding star in various culture war battles. In addition to its prominent role in constitutional challenges to public 27 319 U.S. 624 (1943) (overruling Minersville School Dist. v. Gobitis, 310 U.S. 586 (1940)). 28 Id. at 629-30. 29 Id. at 629. 30 As Justin Driver observes, “No less an authority than Richard Posner has contended that Justice Jackson’s work in Barnette ‘may be the most eloquent majority opinion in the history of the Supreme Court.’” JUSTIN DRIVER, THE SCHOOL HOUSE GATE: PUBLIC EDUCATION, THE SUPREME COURT, AND THE BATTLE FOR THE AMERICAN MIND 65 (2018). Driver adds, “whatever Supreme Court majority opinion might claim the runner-up spot in eloquence lags so far behind Barnette as to render the event no contest at all.” Id. 31 Barnette, 319 U.S. at 642. Electronic copy available at: https://ssrn.com/abstract=4745476 9 accommodations law, this passage features in recent culture war controversies over school curriculum, both in opposition to state laws banning schools teaching so-called “divisive concepts” about racism (especially critical race theory) and sexism as well as in opposition to school district efforts to engage in culturally responsive teaching.32 Gender identity issues are also a site of claims of government compelling orthodoxy, ranging from teachers invoking Barnette to object to having to call students by their preferred pronouns to controversies over laws banning or protecting gender affirming care.33 The historical context of Barnette, decided in 1943 just after the United States entered World War II, is important. Only three years earlier, in Minersville v. Gobitis, the Court (in an opinion written by Justice Frankfurter) upheld a compulsory flag salute against challenge by Jehovah’s Witness school children.34 Indeed, the language of the West Virginia law challenged in Barnette “consisted largely of quotations drawn from Justice Frankfurter’s Gobitis opinion.”35 Jackson’s “disgust” for Gobitis was “well documented before his appointment to the Supreme Court” in 1941;36 he had published a book that “derided” the decision.37 As Attorney General, Jackson, like some other prominent members of the Roosevelt Administration, perceived that Gobitis had spurred a rise in violence against Jehovah’s Witnesses.38 Further, some speeches by 32 I discuss these conflicts in “A ‘Fixed’ or Exploding Star in our Constitutional Constellation? West Virginia v. Barnette and Battles over ‘What Shall be Orthodox’” (2023 McGlinchey Lecture, Tulane Law School, co-authored with James E. Fleming, unpublished manuscript on file with author). 33 Id. In the Conclusion, infra, I mention Justice Thomas’s invocation of the “fixed star” passage in his dissent from the Court’s denial of cert in a challenge to the state of Washington’s ban on conversion therapy. 34 310 U.S. 586 (1940). 35 DRIVER, supra note 30, at 62. 36See Robert L. Tsai, Reconsidering Gobitis: An Exercise in Presidential Leadership, 86 WASH. U. L. REV. 363, 397 (2008). 37DRIVER, supra note 30, at 64. 38 See Tsai, supra note 36, at 397; see also DRIVER, supra note 30, at 64 (“many observers, including the U.S. Department of Justice, drew a direct causal link between Gobitis and the surging violence against Jehovah’s witnesses”). Electronic copy available at: https://ssrn.com/abstract=4745476 10 those in the Administration expressly drew parallels between “mob violence” and “mob punishment” “meted out” against Jehovah’s Witnesses and Nazism, warning, “We shall not defeat the Nazi evil by emulating its methods.”39 As Robert Tsai observes, “Urging a reconceptualization of the coerced flag salute as a tyrannical act, the administration invited others to make the right of conscience a wartime imperative.”40 The dramatic passages in Justice Jackson’s opinion about “the unanimity of the graveyard” must be read in the context of World War II and the Supreme Court’s recognition of the threats posed by the rise of “nationalism” and “our present totalitarian enemies.”41 As Justin Driver points out, the Court’s “willingness to issue Barnette in the midst of the nation’s involvement in World War II struck many observers as adding to the decision’s luster.”42 The Wall Street Journal described Barnette as arriving at a time when “[w]e are in a war for our very life,” and argued that it was crucial to “reject the view that minority rights are ‘privileges or acts of grace by an omnipotent state which can be withdrawn at any time when the majority which happens to exercise the State’s power chooses to do so.’”43 Three features of Justice Jackson’s opinion bear mention in considering the Barnette analogy in challenges to public accommodations laws. First, Jackson emphasized that Barnette did not involve a clash of rights; rather, it involved a clash between the Jehovah’s Witnesses’ right and the authority of the state.44 Today’s antidiscrimination cases, by contrast, do involve a clash of rights: between the rights of persons covered by such laws to access goods and services and be 39 Tsai, supra note 36, at 406 (quoting speech by Solicitor General Francis Biddle). 40 Id. at 373. 41 Barnette, 319 U.S. at 640-41. 42 DRIVER, supra note 30, at 69. 43 Id. at 69 (quoting The Wall Street Journal). 44 Barnette, 319 U.S. at 630. Electronic copy available at: https://ssrn.com/abstract=4745476 11 treated with equal dignity and respect in the marketplace and the First Amendment rights of religious business people who object to providing goods and services to them.45 Second, Jackson argued that the Jehovah’s Witness children’s disobedience was harmless to other students and posed no danger to the state’s pursuit of its end, national unity.46 Today’s antidiscrimination cases, by contrast, if they permit religious business people to discriminate, do harm other people, e.g., LGBTQ persons, and do significantly undermine the state’s pursuit of its end, ensuring “full and equal enjoyment” as part of securing the status of equal citizenship for all. Finally, the dissenting Jehovah’s Witnesses were a small and widely despised minority who had been subject to nationwide attacks for their views and actions.47 As mentioned above, in today’s antidiscrimination cases, by contrast, the dissenting business people typically are from historically majority and politically prominent religious traditions. The declarations by conservatives like Justices Scalia, Thomas, and Alito that religious opponents of LGBTQ rights are being subjected to animosity and charges of bigotry48 should not distract us from these distinguishing facts. Finally, a caveat is in order about the “fixed star” passage itself. Despite its seemingly “facially absolutist language” against governmental orthodoxy, as Toni Massaro observes, “[a] moment’s reflection on the wide range of circumstances in which government can, and does, prescribe what shall be orthodox in matters of public opinion and compel individual speech makes 45 On this point, see Part III for discussion of Elane Photography, LLC. v. Willock, 309 P.3d 53, 64 (N.M. 2013) (quoting Barnette, 319 U.S. at 630). 46 319 U.S. at 640-42. 47 Vincent Blasi and Seana V. Shiffrin, The Story of West Virginia State Board of Education v. Barnette: The Pledge of Allegiance and the Freedom of Thought, in CONSTITUTIONAL LAW STORIES 409, 419-22 (Michael C. Dorf ed., 2nd ed., 2009). 48 For examples, see MCCLAIN, supra note 22, at 154-80, 204-09; Davis v. Ermold, 592 U.S. __, 141 S.Ct. 3, 4 (2020) (Thomas, J., joined by Alito, J.) (stating that Obergefell “enables the government to brand religious adherents who believe that marriage is between one man and one woman as bigots, making their religious liberty concerns easier to dismiss”). Electronic copy available at: https://ssrn.com/abstract=4745476 12 clear that even this most cherished liberal right to resist orthodoxy bows often to democratic reality.”49 There is “no across-the-board constitutional mandate against government-compelled expression.”50 With respect to education itself, Barnette affirmed that states could require teaching in civics and history, even as it invalidated the compulsory Pledge of Allegiance.51 As Robert Post similarly observes, “education in the United States would grind to a halt” if Barnette (as Gorsuch suggests in 303 Creative) entails that “persons cannot [be] compelled to ‘speak as the State demands or face sanctions.’”52 B. Barnette’s Progeny: Wooley and Hurley Barnette’s prominence in recent challenges to public accommodations laws cannot be measured simply by counting citations to it. Some Supreme Court decisions that have drawn on Barnette themselves have become crucial citations for certain points in Barnette. Here I briefly discuss two, Wooley and Hurley. In Wooley, the Court considered whether “the State of New Hampshire may constitutionally enforce criminal sanctions against persons who cover the motto “Live Free or Die” on passenger vehicle license plates because that motto is repugnant to their moral and religious beliefs.”53 Like Barnette, Wooley involved Jehovah’s Witnesses, in this case a husband and wife; the husband, who covered up the motto with tape and took other measures to avoid displaying it, served a 15-day jail sentence.54 In an opinion written by Chief Justice Burger, the 49 Toni M. Massaro, Tread on Me!, 17 J. OF CONST. L. 365, 407 (2014). 50 Id. at 368. Of course, the Roberts Court has ratcheted up First Amendment protection since Professor Massaro made that observation. 51 Barnette, 319 U.S. at 631. 52 See Robert Post, Public Accommodations and the First Amendment: 303 Creative and “Pure Speech,” Yale Law School, Public Law Research Paper, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4571196 (posted Sept. 13, 2023), at 27. 53 Wooley v. Maynard, 430 U.S. 705 (1977). 54 Id. at 706. Electronic copy available at: https://ssrn.com/abstract=4745476 13 Court began its analysis, citing Barnette, with “the proposition that the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all.”55 These rights “are complementary components of the broader concept of ‘individual freedom of mind’” referenced in Barnette.56 While a compulsory flag salute was a “more serious infringement upon personal liberties” than “the passive act of carrying the state motto on a license plate,” a common element is a “state measure” that “forces an individual, as part of his daily life,…to be an instrument for fostering public adherence to an ideological point of view he finds unacceptable.”57 As in Barnette, the state “‘invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.’”58 The “table of authorities” in the briefs filed by Smith and her amici in 303 Creative reveal frequent citations to Wooley, including the Barnette-inspired passages quoted above.59 As discussed below, Smith’s attorney also alluded to Wooley in her oral argument. Another Barnette-influenced case even more central to the compelled orthodoxy challenge to public accommodations laws is Hurley, extensively cited on both sides in the 303 Creative litigation.60 In Hurley, the South Boston Allied War Veterans Council, an unincorporated private association that organized the annual St. Patrick’s Day-Evacuation Day 55 Id. at 714. 56 Id. (citing Barnette, 319 U.S. at 637). 57 Id. at 715. 58 Id. (citing Barnette, 319 U.S. at 642). 59 See, e.g., Brief for the Petitioners, at 17, 23, 29, 40, 303 Creative LLC v. Elenis, 600 U.S. 570 (2023) (No. 21-476); Brief of Amici Curiae Prof. Dale Carpenter et al, supra note 14, at vi (citing references to Wooley as “passim”). 60 Whether Hurley was a “defeat for the LGBT movement” or consistent with First Amendment principles that supported the movement has been the subject of extensive commentary, which I do not engage here. See, e.g., CARLOS A. BALL, THE FIRST AMENDMENT AND LGBT EQUALITY: A CONTENTIOUS HISTORY 197-205 (2017). Electronic copy available at: https://ssrn.com/abstract=4745476 14 Parade in Boston, successfully argued that applying Massachusetts’ public accommodations law to require it to allow GLIB (a group of gay, lesbian, and bisexual descendants of Irish immigrants) to march in the parade violated its First Amendment rights. GLIB sought to march for various expressive purposes, including “to express pride in their Irish heritage as openly gay, lesbian, and bisexual individuals” and to demonstrate that such individuals existed.61 When the Council denied GLIB’s application, GLIB marched in the 1992 parade after obtaining a state-court order.62 The next year, when the Council again denied GLIB’s application, GLIB filed a lawsuit and prevailed in state court (including the Supreme Judicial Court) on its claim that the Council’s denial violated Massachusetts’ public accommodations law.63 The U.S. Supreme Court granted the Council’s petition for certiorari “to determine whether the requirement to admit a parade contingent expressing a message not of the private organizers’ own choosing violates the First Amendment.”64 In an opinion authored by Justice Souter, the Court unanimously held that it did.65 Souter quoted Barnette’s statement that “symbolism [as in a flag salute or refusal] is a primitive but effective way of communicating ideas” to address “the protected expression that inheres in a parade” under the First Amendment.66 Importantly, Souter affirmed the basic legitimacy and constitutionality of public accommodations laws. Massachusetts’ public accommodations law has a “venerable history” and the expansion of its scope to include more protected categories falls “well within the State’s 61 Hurley, 515 U.S. at 561. 62 Id. 63 Id. at 563-65. 64 Id. at 566. 65 Id. 66 Id. at 569 (citing Barnette, 319 U.S. at 632). Electronic copy available at: https://ssrn.com/abstract=4745476 15 usual power to enact when a legislature has reason to believe that a given group is the target of discrimination;” “they do not, as a general matter, violate the First or Fourteenth Amendment.”67 He referred to Barnette’s “fixed star” language in discussing the “peculiar way” in which Massachusetts’ public accommodations law had been applied to the Council.68 Souter distinguished the permissibility of a state “at times” prescribing “what shall be orthodox in commercial advertising”—for example, by prohibiting false advertising—from Barnette’s “general rule” that the state “may not compel affirmance of a belief with which the speaker disagrees.”69 He further articulated that the general rule that speakers have “the right to tailor the speech”—whether they are “ordinary people” or “business corporations”—reflects “the point of all speech protection, which is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.”70 Mirroring the Council’s brief, which drew heavily on Barnette,71 the Hurley opinion cited Barnette in support of the proposition that “the very idea that noncommercial speech restriction be used to produce thoughts and statements acceptable to some groups or, indeed, all people, grates on the First Amendment, for it amounts to nothing less than a proposal to limit speech in the service of orthodox expression.”72 Justice Souter elaborated a distinction between regulating conduct and speech: While the law is free to promote all sorts of conduct in place of harmful behavor, it is not free to interfere with speech for no better reason than promoting an approved message or 67 Id. at 572. 68 Id. 69 Id. at 573 (citing Zauderer v. Office of Disiplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 651 (1973), and Barnette, 319 U.S. at 642). 70 Id. at 575. 71 See Redburn, supra note 22, at 49. 72 Hurley, 515 U.S. at 579. Electronic copy available at: https://ssrn.com/abstract=4745476 16 discouraging a disfavored one, however enlightened either purpose may strike the government.73 Souter fortified the conclusion that this case fell into the latter category by stressing that the parade took place in public streets, places where a speaker’s expression should be free from content-based “interference” by the state.74 In 303 Creative, Colorado and its amici distinguished Hurley as an “unusual” or (in Hurley’s words) “peculiar” application of a state public accommodations law to a nonprofit association’s parade, not relevant to a for-profit business like Smith’s.75 Smith and her amici, however, argued for Hurley’s direct relevance.76 The majority of the Supreme Court agreed with her, describing Hurley as an example of the First Amendment protecting a right to present a “message” even if it is “unpopular.”77 As Kate Redburn observes, the Alliance Defending Freedom (ADF) (which both aided the Council’s attorney in Hurley and represented Smith in 303 Creative) “and other movement organizations spent nearly thirty years trying to extend” the Court’s analysis in Hurley—that “enforcement of some public accommodations laws” violated the Free Speech Clause—from “the ‘peculiar’ situation in Hurley to public accommodations enforcement in general.” They “finally succeeded” in 303 Creative, at least with respect to “arguably expressive products.”78 II. Twin Pillars for Compelled Orthodoxy Claims: Barnette and Obergefell 73 Id. 74 Id. 75 Brief for the United States as Amicus Curiae Supporting Respondents, at 10-16, 303 Creative LLC v. Elenis, 600 U.S. 570 (2023) (Hurley involved “unusual” application of public accommodations laws). 76 Brief of Amici Curiae Prof. Dale Carpenter et al, supra note 14, at 4-6, 12-15 (urging Court to “reaffirm Hurley”). 77 303 Creative, 600 U.S. at 586 (quoting Snyder v. Phelps, 562 U.S. 443, 456 (2011)). 78 Redburn, supra note 22, at 50-51. Electronic copy available at: https://ssrn.com/abstract=4745476 17 In addition to invoking Barnette and its progeny, arguments against antidiscrimination laws as compelling orthodoxy draw on the majority and dissenting opinions in Obergefell. While business owners liken themselves, on the one hand, to the vulnerable religious dissenters in Barnette, they sharply distinguish themselves, on the other, from racial segregationists unwilling to serve Black customers or to accept interracial marriages. They contend that their refusals to provide wedding goods and services to same-sex couples due to their sincere religious beliefs are wrongly analogized to refusals by “odious” racists and bigots to serve Black persons. In support, they cite Justice Kennedy’s statements in Obergefell that “many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises” and that the Court was not “disparag[ing]” them or their beliefs.79 Jack Phillips and his amici in Masterpiece Cakeshop provide abundant illustrations of this argument.80 Notably, the only explicit reference to Barnette in Obergefell is in Justice Kennedy’s majority opinion, when he rejects the argument (voiced by the dissenters) that the Court should wait for further “legislation, litigation, and debate” rather than rule immediately in favor of the same-sex couples seeking recognition of their right to marry.81 Kennedy references Justice Jackson’s famous language about the purpose of the Bill of Rights—or, as Kennedy puts it, “the idea of the Constitution”—as being “to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.”82 Kennedy’s reference illustrates that 79 576 U.S. at 672. 80 MCCLAIN, supra note 22, at 194-99. 81 Obergefell, 576 U.S. at 676. 82 Id. at 677. Electronic copy available at: https://ssrn.com/abstract=4745476 18 Barnette sometimes features in the expansion of constitutional rights to previously excluded groups. As noted above, Justice Alito’s dissenting opinion in Obergefell echoed Barnette in predicting that the Court’s decision “will be used to vilify Americans who are unwilling to assent to the new orthodoxy.”83 Alito dramatically argued that those who cling to old beliefs about marriage might whisper them in their homes, but “risk being labeled” as bigots if they utter them in public and risk being “treated as such by governments, employers, and schools.”84 He objected to Kennedy’s comparison between now-repudiated forms of race and sex discrimination in marriage laws and state laws restricting same-sex couples from marrying, contending that “the implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.”85 This fiery rhetoric helped fuel objections to public accommodations laws. Despite vehement conservative criticisms of Justice Kennedy’s majority opinion in Obergefell, business owners who object to providing wedding goods and services to same-sex couples have invoked certain language from it. In addition to the “decent” and “honorable” language quoted above, they also cite his statement that “religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned” and may continue to engage with those who disagree “in an open and searching debate.”86 These business owners argue that not exempting them from antidiscrimination laws will violate Obergefell’s “promise.” 83 Id. at 644, 741 (Alito, J. dissenting). 84 Id. 85 Id. 86 Id. at 680 (majority opinion). Electronic copy available at: https://ssrn.com/abstract=4745476 19 In 303 Creative, website designer Lorie Smith rested her successful challenge to Colorado’s public accommodations law on these twin pillars of the compelled orthodoxy claim. She both appealed to Obergefell’s “promise” and compared herself to the students in Barnette. At the oral argument, her lawyer Kristen Waggoner opened and closed with analogies to Barnette and its progeny: “If the government may not force motorists to display a motto, school children to say a pledge, or parades to include banners, Colorado may not force Ms. Smith to create and speak messages on pain of investigation, fine and re-education.”87 Waggoner also invoked the Obergefell majority and dissent, asserting, “Colorado asks this Court for the power to drive views like Ms. Smith’s from the public square, views about marriage that this Court has held are honorable and decent, promises that it has provided that the government would not mandate orthodoxy.”88 In such arguments, business owners’ refusals of service or selective offering of service become the expression of views, a premise embraced by Justice Gorsuch’s reference to the commercial marketplace as a “marketplace of ideas.” III. A Road Not Taken: Elane Photography on Why Business Owners Are Not Like the School Children in Barnette In Elane Photography, LLC. v. Willock,89 a photographer, Elaine Huguenin, declined to photograph a commitment ceremony between two women because of her religious beliefs about marriage. At the time, New Mexico did not permit same-sex couples to marry but its Human Rights Act (NMHRA) prohibited discrimination based on sexual orientation in businesses considered “public accommodations.” After Willock, one of the women, filed a discrimination 87 Transcript of oral argument, 303 Creative LLC v. Elenis, No. 21-476, at 4-5 (Dec. 5, 2022). 88 Id. at 152-53. 89 309 P.3d 53, 77-80 (N.M. 2013) (Bosson, J., concurring). Electronic copy available at: https://ssrn.com/abstract=4745476 20 complaint, the New Mexico Human Rights Commission concluded that Elane Photography had discriminated on the basis of sexual orientation. The photographer appealed, but the district, appellate, and highest court of New Mexico all affirmed. Some subsequent state court decisions (including the Colorado court in Masterpiece Cakeshop) cited the New Mexico Supreme Court’s doctrinal analysis as to why Barnette’s prohibition against compelled expression—and similar prohibitions in cases like Wooley—did not apply to businesses operating as public accommodations.90 In reaching the opposite conclusion, 303 Creative implicitly overrules Elane Photography, but it is still instructive as a constitutional road not taken by the Supreme Court. It is especially instructive to revisit the concurring opinion’s approach to Barnette. A. The Majority Opinion In her appeal, Huguenin cited Barnette and Wooley to argue that the NMHRA compelled speech because she was forced “to speak the government’s message” and “engage in unwanted expression.”91 In support, amici The Cato Institute, joined by Professors Dale Carpenter and Eugene Volokh and others, argued that Wooley (which “heavily relied” on Barnette) was controlling and that it, along with Barnette and Hurley, afforded photographers and others “engaged in expression” a right to refuse to engage in “First Amendment-protected expression.”92 Quoting Wooley (which, in turn, quoted Barnette), the brief argued, “the right to speak and the right to refrain from speaking are complementary components of the broader concept of ‘individual freedom of mind.’”93 “Democracy and liberty” themselves rested on 90 See, e.g., State of Washington v. Arlene’s Flowers, 441 P.3d 1203 (Wash. 2019), reconsidered and affirmed, 91 309 P.3d at 63-64. 92 Brief of Amici Curiae The Cato Institute, Prof. Dale Carpenter, and Prof. Eugene Volokh, Elane Photography, LLC v. Willock, at 3-5, 8-21, 309 P.3d 53, 64 (N.M. 2013) (Case No. 33, 687), https://www.cato.org/sites/cato.org/files/pubs/pdf/Elane-Photog-filed-brief.pdf. 93 Id. at 5. The brief also quoted the passage from Wooley (quoting Barnette) on prohibiting compelled expression because it “invades the sphere of intellect and spirit. . . .” Id. at 6. Electronic copy available at: https://ssrn.com/abstract=4745476 21 protecting such “individual freedom of mind.”94 To illustrate the high stakes, the brief quoted Alexander Solzhenitsyn’s admonition to “his fellow Russians” to “‘live not by lies,’” that is, “to refuse to endorse speech that they believe to be false.”95 The Supreme Court of New Mexico’s majority opinion disagreed that Barnette and Wooley controlled. It held that Barnette’s prohibition on government prescribing orthodoxy was inapt because the NMHRA “does not require Elane Photography to recite or display any message” or even to take photographs.96 Instead, it “only mandates that if Elane Photography operates a business as a public accommodation, it cannot discriminate against potential clients based on their sexual orientation.”97 Therefore, the majority concluded, requiring a business to offer goods and services to a same-sex couple on the same basis as they would to a different-sex couple does not “compel speech” as the law in Barnette did—and as had the laws in other compelled speech cases (such as the New Hampshire law requiring residents to display “Live Free or Die” on their license plates).98 Further, the majority observed that, while West Virginia’s statute in Barnette “had little purpose other than to promote the government-sanctioned message” of “national unity,” antidiscrimination laws “have important purposes that go beyond expressing government values: they ensure that services are freely available in the market and protect individuals from humiliation and dignitary harm.”99 The court found a more apt analogy in Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (FAIR),100 where the U.S. Supreme Court concluded that 94 Id. at 7. 95 Id. 96 Elane Photography, 309 P.3d at 64. 97 Id. 98 Id. at 65. 99 Id. 100 547 U.S. 47 (2006). Electronic copy available at: https://ssrn.com/abstract=4745476 22 a requirement that universities receiving federal funding had to allow military recruiters access to university facilities and services on the same basis as non-military recruiters did not compel speech.101 In that case, the Court had found there was nothing “approaching a Government-mandated pledge or motto” that the universities had to endorse.102 Notably, in FAIR the Court declared that it “trivializes the freedom protected in Barnette and Wooley” to suggest that “compelling a law school that sends scheduling e-mails for other recruiters to send one for a military recruiter” is the same as “forcing a student to pledge allegiance, or forcing a Jehovah’s Witness to display the motto ‘Live Free or Die.’”103 Similarly, the New Mexico Supreme Court concluded that NMHRA did not require businesses that came within the public accommodations law to make “any affirmation of belief,” but simply required them to offer their services to the public without discriminating based on protected classifications.104 The majority also distinguished Barnette because of the impact of refusals on third parties. The “dissenting students’ choice not to salute the flag ‘[did] not bring them into collision with rights asserted by any other individual,’” while a business’s asserted right to refuse service “directly conflicts” with the right of a potential customer to obtain goods and services “from a public accommodation without discrimination on the basis of her sexual orientation.”105 Finally, the court rejected Elane Photography’s argument that, because photographing same-sex ceremonies is an expressive event, NMHRA compelled it to communicate messages it did not wish to convey: “that such ceremonies exist” and that they “deserve celebration and 101 Elane Photography, 309 P.3d at 65. 102 Id. 103 FAIR, 547 U.S. at 62, 70. 104 Elane Photography, 309 P.3d at 31. 105 Id. at 64 (quoting Barnette, 319 U.S. at 630). Electronic copy available at: https://ssrn.com/abstract=4745476 23 approval.”106 The court observed that Elane Photography “sells its expressive services to the public” and it “expresses its clients’ messages in its photographs” only because it is “hired to do so.”107 B. The Concurrence: The “Price of Citizenship” in the “Marketplace of Commerce” In Masterpiece Cakeshop, Justice Kennedy directed that future disputes over constitutional challenges to antidiscrimination laws “must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”108 A good model for such an approach is Justice Bosson’s concurring opinion in Elane Photography. Bosson speaks more directly than the majority did to the owners of Elane Photography, Elaine and Jonathan Huguenin, acknowledging that they viewed themselves “in much the same position as the students in Barnette,” since they believe that “certain commands of the Bible . . . must be obeyed.”109 He stated that “their religious convictions deserve our respect” as well as an answer to the question, how can “the state of New Mexico compel them to ‘disobey God’ in this case?”110 Bosson answered by invoking two additional landmark cases: Loving v. Virginia and Heart of Atlanta Motel v. United States.111 As did the majority opinion, Justice Bosson observed that the refusal of the students in Barnette to salute the flag did not, as Justice Jackson put it, collide with the rights of others.112 By contrast, refusing to serve customers because of their sexual orientation, 106 Id. at 65. 107 Id. at 67 (distinguishing Hurley). 108 Masterpiece Cakeshop, 138 S.Ct. at 1732. 109 Elane Photography 309 P.3d at 78 (Bosson, J., concurring). The analysis in this part draws on MCCLAIN, supra note 22, at 186-91. 110 Elane Photography, 309 P.3d at 78. 111 Id. at 78-79 (citing Loving v. Virginia, 388 U.S. 1 (1967); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964)). 112 Id. at 78. Electronic copy available at: https://ssrn.com/abstract=4745476 24 like refusing to serve customers because of their race (as in Heart of Atlanta Motel), would conflict with their rights, even if motivated by a religious belief in segregation.113 Loving, he argued, illustrates that the appeal to religious beliefs—e.g., a belief that God separated the races—cannot justify unconstitutional laws (or, by implication, not complying with public accommodations laws).114 Justice Bosson also reasoned from the legitimacy of the Civil Rights Act of 1964, upheld in Heart of Atlanta Motel, to that of present-day state antidiscrimination laws, which have evolved over time to include more protected groups.115 He interpreted New Mexico’s law as expressing the position that “to discriminate in business on the basis of sexual orientation is just as intolerable as discrimination directed toward race, color, national origin, or religion.”116 He concluded that complying with antidiscrimination law in the “marketplace of commerce” is a necessary accommodation that persons like the Huguenins must make, while remaining free to “think, to say, to believe, as they wish.”117 Bosson called this the “price of citizenship” that all people pay in “our civic life.”118 This “price,” some critics protest, is higher than religious believers should have to pay. The rhetoric in the Obergefell dissents about the perils faced by such believers if they dissent from the new “orthodoxy” about marriage amplified these criticisms. IV. Avoiding the Compelled Speech Issue in Masterpiece Cakeshop 113 Id. at 79. 114 Id. at 78-79. 115 Id. at 79. 116 Id. 117 Id. 118 Id. at 80. Electronic copy available at: https://ssrn.com/abstract=4745476 25 Masterpiece Cakeshop owner Jack Phillips’s challenge to Colorado’s public accommodations law (CADA) asked the U.S. Supreme Court to hold that the failure to allow him an exemption from preparing a wedding cake for same-sex couples violated both his free speech and his free exercise of religion. Phillips and his many amici cited Barnette and other compelled speech cases that have drawn on it, like Wooley119 and Hurley.120 Quoting Barnette, Phillips argued: “The Commission dismisses the First Amendment when it is most needed—to help people in a pluralistic society navigate through sincere differences on matters ‘that touch the heart of the existing order.’”121 He also compared the symbolism of a wedding cake to that of a flag, as a “‘as a short cut from mind to mind.’”122 A. The Majority Opinion’s Analysis Writing for the Court, Justice Kennedy did not reach the merits of Phillips’s compelled speech claim. He called it “difficult” since few persons viewing a “beautiful wedding cake” might regard its “creation” as “an exercise of protected speech.”123 He did not foreclose the argument, observing that it could be an instance in which “application[s] of constitutional freedoms in new contexts can deepen our understanding of their meaning.”124 In addressing Phillips’s First Amendment free exercise claim, however, Kennedy quoted Barnette’s caveat against any official prescribing “what shall be orthodox.” The context is important. The majority did not rule that, under Barnette, CADA as such impermissibly compelled a governmental orthodoxy. Instead, Kennedy quoted Barnette’s “fixed star” language in the context of ruling that 119 430 U.S. 705 (1977) (cited Brief for Petitioners at 17, 25, 29-30, 46). 120 515 U.S. 557 (1995) (cited in Brief for Petitioners passim). 121 Brief for Petitioner at 3 (citing Barnette, 319 U.S. at 642). 122 Brief for Petitioner at 15 (citing Barnette, 319 U.S. at 632) and 24 (flag language). 123 Masterpiece Cakeshop, 138 S.Ct. at 1723. 124 Id. Electronic copy available at: https://ssrn.com/abstract=4745476 26 the Commission’s treatment of Phillips’s claim showed “hostility” toward his belief. He stated, “Just as ‘no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion,’ . . . it is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive.”125 In Masterpiece Cakeshop, the Court concluded that there was not a “principled rationale” for the Colorado Civil Rights Commissioners charged with enforcing CADA to allow three bakeries to decline to create anti-same-sex marriage cakes because of “the offensive nature of the message,” while rejecting Phillips’s appeal to offensiveness—of same-sex marriage to his religious beliefs about marriage—as a reason to decline to create wedding cakes for same-sex marriages.126 B. Justice Thomas’s Concurrence: CADA Does Compel Speech, Contrary to Barnette Justice Thomas (joined by Justice Gorsuch) would have reached and accepted Phillips’s compelled speech claim. He invoked Barnette to explain why. Thomas argued that the Colorado Supreme Court was wrong in concluding that Phillips’s conduct in creating wedding cakes was not expressive and not protected speech.127 He quoted Barnette for the point that “symbolism is a primitive but effective way of communicating ideas.”128 On his view, Barnette’s protection of “refusing to salute the flag” illustrates that “a wide array of conduct” can be expressive, 125 Id. (citing Matal v. Tam, 137 S. Ct. 1744, 1762-64 (2017) (Alito, J., concurring)). 126 Id. at 1731 (quoting Barnette, 318 U.S. at 642). Both the concurrence by Justices Kagan and Breyer and the dissent by Justices Ginsburg and Sotomayor strenuously disagree with Kennedy on whether there were principled distinctions between the cases. Id. at 1732-33 (Kagan, J., concurring); id. at 1748, 1751 (Ginsburg, J., dissenting). In his concurrence, Justice Gorsuch vehemently disagreed with Kagan on this point. Id. at 1737 (Gorsuch, J., concurring). 127 Id. at 1740 (Thomas, J. concurring). 128 Id. at 1741 (quoting Barnette, 319 U.S. at 623). Similarly, in his concurrence, Justice Gorsuch wrote, “Like ‘an emblem or flag,’ a cake for a same-sex wedding is a symbol that serves as ‘a short cut from mind to mind,’ signifying approval of a specific ‘system, idea, [or] institution.’” Id. at 1748 (Gorsuch, J., concurring) (quoting Barnette, 319 U.S. at 632). Electronic copy available at: https://ssrn.com/abstract=4745476 27 including creating a wedding cake.129 Thomas favorably quoted Phillips’s view about the inherently communicative nature of his wedding cakes: that “a wedding has occurred, a marriage has begun, and the couple should be celebrated.”130 Thus, forcing Phillips to create a wedding cake would force him to “acknowledge” a message he believes his faith forbids.131 Thomas also cited Barnette for the proposition that the Court’s compelled speech precedents have “rejected arguments that ‘would resolve every issue of power in favor of those in authority.’”132 Because Justice Thomas deemed both Phillips’s cake-creation and his refusal to create cakes as expressive speech, not simply conduct, he argued that CADA implicated the strict scrutiny test required when governmental regulation burdens speech and is not simply doing so incidental to regulating conduct. Thomas’s transformation of conduct into speech anticipates Justice Gorsuch’s move in 303 Creative.133 Thomas concluded that Colorado failed the strict scrutiny test because the state does not have a compelling interest in applying CADA to Phillips to prevent dignitary harm to same-sex couples and avoid subjecting them to “humiliation, frustration, and embarrassment.”134 While the couple, Craig and Mullins, cited Heart of Atlanta Motel to support their harm argument, Thomas asserted that such a rationale is “completely foreign to our free speech jurisprudence.”135 Instead, he quoted from Texas v. Johnson, in which the Court struck down a law restricting flag burning: States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, undignified, or unreasonable. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea 129 Id. at 1741-42. 130 Id. at 1743. 131 Id. at 1744. 132 Id. (citing Barnette, 319 U.S. at 636). 133 As discussed below, the Tenth Circuit ruled that Smith’s website design was “pure speech.” 134 Masterpiece Cakeshop, 138 S.Ct. at 1746. 135 Id. at 1746. Respondents cited to Justice Goldberg’s concurring opinion in Heart of Atlanta Motel. Electronic copy available at: https://ssrn.com/abstract=4745476 28 simply because society finds the idea itself offensive or disagreeable.” A contrary rule would allow the government to stamp out virtually any speech at will.136 After transforming a refusal of service into a speech act, Thomas argues that the very fact that the speaker’s “opinion” gives “offense” is a reason that it warrants constitutional protection against a governmental “orthodoxy.”137 In invoking Barnette as well as First Amendment cases protecting unpopular, offensive, even hateful speech, both Justice Thomas’s and Justice Gorsuch’s concurring opinions cast Phillips as a religious minority. For example, Gorsuch suggests a parallel between free speech and free exercise: “Just as it is the ‘proudest boast of our free speech jurisprudence’ that we protect speech that we hate, it must be the proudest boast of our free exercise jurisprudence that we protect religious beliefs that we find offensive.”138 Arguing that the Commissioners viewed Phillips’s religious beliefs as “irrational” or “offensive,” he added, “It is in protecting unpopular religious beliefs that we prove this country’s commitment to serve as a refuge for religious freedom.”139 This emphasis on the First Amendment protecting what is “unpopular” recurs in his majority opinion in 303 Creative. Justice Thomas reinforces this picture of Phillips as a dissenter in need of protection by envisioning him as (through his business decisions) rightfully using his free speech rights to criticize Obergefell: “This Court is not an authority on matters of conscience, and its decisions 136 Id. at 1746 (citing Texas v Johnson, 491 U.S. 397 (1989)). Not so long ago, the conservative Chief Justice Rehnquist, dissenting in Texas v. Johnson, argued that flag burning was conduct and that “Surely one of the high purposes of a democratic society is to legislate against conduct that is regarded as evil and profoundly offensive to the majority of people.” 491 U.S. at 435. 137 Masterpiece Cakeshop, 138 S.Ct. at 1746 (citing Hurley). 138 Id. at 1737 (Gorsuch, J., concurring). The “proudest boast” language, in turn, comes from a dissent by Justice Oliver Wendell Holmes, Jr. in United States v. Schwimmer, 279 U.S. 644, 655 (1929). 139 Masterpiece Cakeshop, 138 S.Ct. at 1737. Electronic copy available at: https://ssrn.com/abstract=4745476 29 can (and often should) be criticized.”140 Quoting Justice Alito’s Obergefell dissent, Thomas concludes, “in future cases, the freedom of speech could be essential to preventing Obergefell from being used to ‘stamp out every vestige of dissent’ and ‘vilify Americans who are unwilling to assent to the new orthodoxy.’”141 V. 303 Creative LLC v. Elenis: Applying Barnette to the Marketplace (of Ideas) Colorado asks this Court to do something it has never done before—bless government-mandated orthodoxy and require an artist to speak or stay silent contrary to her beliefs. —Brief for the Petitioners, 303 Creative LLC v. Elenis, No. 21-476, at 18 The Supreme Court agreed to address the compelled artistic speech argument that the majority in Masterpiece Cakeshop declined to reach when it granted certiorari in 303 Creative LLC v. Elenis142 on the question, “Whether applying a public accommodations law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.143 By that time, the Arizona Supreme Court and the Eighth Circuit Court of Appeals had favorably ruled on free speech challenges to the public accommodations laws of, respectively, the City of Phoenix and Minnesota brought by the ADF on behalf of stationers (in Phoenix)144 and wedding videographers (in Minnesota).145 Barnette and its progeny featured prominently in both opinions, providing a prequel to 303 Creative. For example, in Brush & Nib Studio, LC v. City of Phoenix, the Supreme Court of Arizona described the business owners, Joanna Duka and Breonna Koski, as holding unpopular views about marriage, deemed “old-fashioned or even offensive to some,” 140 Id. Indeed, in his concurrence in Dobbs v. Jackson Women’s Health Organization, Thomas openly called for the Court to overrule Obergefell. 142 S.Ct. 2228, 2301 (2022) (Thomas, J., concurring). 141 Masterpiece Cakeshop, 138 S.Ct.at 1748. 142 6 F.4th 1160 (10th Cir. 2021), cert. granted in part, 142 S. Ct. 1106 (2022). 143 U.S. Supreme Court, Orders in Pending Cases 4 (Feb. 22, 2022). 144 Brush & Nib Studio, LC v. City of Phoenix, 448 P.3d 890 (Ariz. 2019). 145 Telescope Media Group v. Lucero, 936 F.3d 740 (8th Cir. 2019). Electronic copy available at: https://ssrn.com/abstract=4745476 30 but invoked Barnette to state that we can “‘have intellectual individualism’ and ‘rich cultural diversities’ only at the price of allowing others to express beliefs that we may find offensive and irrational.”146 The court also invoked Barnette’s “fixed star” language and, more dramatically, its warning about how history reveals that “compulsory unification of opinion achieves only the unanimity of the graveyard.”147 By comparison, the three dissenting judges found the Barnette analogy inapt—“requiring businesses to treat customers equally is in no way comparable to compelling public school children to salute the flag”—and warned that allowing exemptions would risk “resurrecting the old Jim Crow laws of the South.”148 In their respective emphases, the majority and dissent anticipate Justices Gorsuch and Sotomayor in 303 Creative. In 303 Creative, as noted above, website designer Lorie Smith argued that Colorado’s antidiscrimination law (CADA) compels her speech by requiring that, if she expands her business to offer website design for weddings, she must offer those services to same-sex couples on the same terms as to different-sex couples, and compels her not to speak by prohibiting her from posting a statement on her website explaining why she will not design websites for same-sex weddings. Barnette featured repeatedly not only in the arguments made by Smith and her amici, but also in Justice Gorsuch’s majority opinion ruling in her favor. Further, in the proceedings below, in which the Tenth Circuit ruled against Smith, the dissent by Chief Judge Tymkovich cited Barnette 13 times, quoting nine different passages.149 Tymkovich linked Barnette’s warnings about coercing unity by measures of “ever-increasing severity” to George Orwell’s writings 146 Brush & Nib Studio, LC, 448 P.3d at 896 (citing Barnette, 319 U.S. at 641-42). 147 Id. at 896-97 (citing Barnette, 319 U.S. at 641). 148 Id. at 930 (J. Bales, dissenting). 149 See 303 Creative, 6 F.4th at 1192-1215 (Tymkovich, J., dissenting). Electronic copy available at: https://ssrn.com/abstract=4745476 31 about liberty, cautioning, “stifling minority speech is the prototypical ‘slippery slope’ toward authoritarianism.”150 Notably, Gorsuch works Tymkovich’s reference to Orwell into his majority opinion. In the following analysis of how Barnette featured in the 303 Creative litigation, I do not attempt to predict the future of public accommodations laws or the full implications of the Supreme Court’s ruling. As some commentators have observed, doing so is difficult both because of the Tenth Circuit’s ruling that Smith’s website design was “pure speech”151 and because of Justice Gorsuch’s emphasis upon how the Court’s holding followed from the parties’ stipulated facts.152 What I do stress is how Barnette features in his narrative of the need for constant vigilance on the part of the Court to affirm the First Amendment’s protection of individuals, their beliefs, and speech against an encroaching government. A. The Tenth Circuit Smith’s website design business originally did not include websites for weddings. She wished to expand to include them. She also wanted to post on her own website a statement (1) that she feels called by God to do wedding website design to explain “His true story about marriage . . . as a lifelong union between one man and one woman” and (2) that those convictions prevent her from creating websites “promoting and celebrating ideas or messages that violate my beliefs,” such as creating “websites for same-sex marriage or any other marriage that is not between one man and one woman.”153 Even before she offered wedding-related 150 Id. at 1196 (quoting Barnette, 319 U.S. at 640). Chief Judge Tymkovich quoted Barnette’s “fixed star” passage, saying “those words are as true now as they were then.” Id. at 1205 (quoting Barnette, 319 U.S. at 642). 151 The Tenth Circuit concluded that Colorado’s law survived the strict judicial scrutiny required because Colorado had no less restrictive alternative to advance its compelling governmental interest than to enforce its law against Smith. 303 Creative, 6 F.4th at 1176. 152 See Post, supra note 52. 153 303 Creative, 6 F. 4th at 1200 n.7. Electronic copy available at: https://ssrn.com/abstract=4745476 32 services, but while Masterpiece Cakeshop was pending, Smith brought a pre-enforcement challenge to CADA asserting Free Speech, Free Exercise, and Due Process challenges.154 In effect, she sought a declaratory judgment that CADA was unconstitutional.155 She challenged both (1) CADA’s requirement that she provide services without discrimination (what the Tenth Circuit called the Accommodation Clause) and (2) its requirement that she not post a public statement about why her beliefs lead her not to provide services for same-sex weddings (the Communication Clause).156 Thus, she alleged that these two clauses simultaneously compel speech and compel silence.157 1. The Majority Opinion The Tenth Circuit affirmed the district court decision granting summary judgment in favor of Colorado.158 However, the court differed from most prior courts rejecting challenges to state public accommodations laws because it concluded that Smith’s “creation of wedding sites is pure speech” and that CADA would be compelling her to offer services to same-sex couples through websites that “express approval and celebration of the couple’s marriage.”159 The majority, nonetheless, reasoned that Colorado’s law survived a strict scrutiny test under the First Amendment because the state had a “compelling interest in protecting both the dignity interests of members of marginalized groups and their material interests in accessing the 154 Id. at 1170. 155 Complaint at 59, 303 Creative LLC v. Elenis, 405 F. Supp. 3d 907 (D. Colo. 2019), aff'd, 6 F.4th 1160 (10th Cir. 2021) (No. 1:16-cv-02372). 156 303 Creative, 6 F.4th at 1168-70. 157 Complaint at 5, 303 Creative, 405 F. Supp. 3d 907 (D. Colo. 2019). 158 303 Creative, 6 F.4th at 1190. 159 Id. at 1176. Citing Obergefell, the majority reasons that the wedding itself is often a particularly expressive event. Id. (citing Obergefell, 576 U.S. at 657). Colorado (defending CADA) attempted to distinguish Barnette and Hurley on the ground that CADA “does not require a specific message or statement unrelated to regulating conduct.” Id. at 1177. Electronic copy available at: https://ssrn.com/abstract=4745476 33 commercial marketplace.”160 Citing Romer v. Evans, the court observed that “Colorado has a unique interest in remedying its own discrimination against LBGT people.”161 The court concluded that CADA was not narrowly tailored to preventing dignitary harms. Under precedents such as Hurley, the law could not “enforce that interest by limiting offensive speech”: “‘While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government.’”162 But, the court found, the law was narrowly tailored to promoting the second interest—“ensuring ‘equal access to publicly available goods and services.’”163 The court cited the landmark civil rights case, Heart of Atlanta Motel, as illustrating the “commercial consequences of public accommodation laws,” namely, prohibiting discriminatory practices to “help insure a free and open economy.” 164 2. The Dissent While the majority cited Barnette only once, to distinguish it,165 the dissent cited it 13 times.166 After beginning with a quotation from George Orwell (subsequently quoted by Justice Gorsuch)—“If liberty means anything at all, it means the right to tell people what they do not want to hear”167—Chief Judge Tymkovich concludes with Barnette.168 (Notably, as Solicitor General for Colorado, Tymkovich had unsuccessfully defended Amendment 2 to the state 160 Id. at 1178 (citing Roberts v. Jaycees, 468 U.S. 609, 624 (1984)). 161 Id. (citing Romer v. Evans, 517 U.S. 620, 630 (1996)). 162 Id. at 1179 (quoting Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 579 (1995)). 163 Id. 164 Id. (citing Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964)). 165 See id. at 1177. 166 See id. at 1192-1215 (Tymkovich, J., dissenting). 167 Id. at 1190. 168 Id. at 1215. Electronic copy available at: https://ssrn.com/abstract=4745476 34 constitution in Romer v. Evans.) While Justice Bosson’s concurring opinion in Elane Photography distinguished (1) the historical context of Barnette from the contemporary landscape of state antidiscrimination law and (2) the situation of the students refusing to salute the flag from a photographer refusing to serve a customer, Chief Judge Tymkovich found similarity in both respects. On his view, the risk of authoritarian governmental overreach is nigh. For example, he wrote, “compelled speech is deeply suspect in our jurisprudence—and rightly so given the unique harms it presents.”169 He invoked Justice Alito quoting Barnette on how commanding “‘involuntary affirmation’” coerces individuals into “betraying their convictions.”170 Furthermore, Tymkovich wrote, “the ‘[c]ompulsory unification of opinion’ about which Justice Jackson cautioned in Barnette is not only a social harm but a personal one”171 because diminishing the “field of permissible expression diminishes autonomy and free will.”172 He even linked Barnette’s warnings about coercing unity to Orwell, as he cautioned, “stifling minority speech is the prototypical ‘slippery slope’ toward authoritarianism.” He quoted Jackson, “As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity.”173 Continuing to quote Barnette, he writes, “It appears that the path to ‘coercive elimination of dissent’ is steep—and short.”174 On his view, Smith is a dissenter under threat. 169 Id. at 1194. 170 Id. at 1195 (quoting Janus v. Am. Fed’n of State, Cty., & Mun. Emps., Council 31, 138 S. Ct. 2448, 2464 (2018) (quoting Barnette, 319 U.S. at 633)). 171 Id. at 1193 (quoting Barnette, 319 U.S. at 641). 172 Id. at 1195. 173 Id. at 1196 (quoting Barnette, 319 U.S. at 640). 174 Id. at 1200 (quoting Barnette, 319 U.S. at 641). Electronic copy available at: https://ssrn.com/abstract=4745476 35 Chief Judge Tymkovich also quoted Barnette’s “fixed star” passage, saying “those words are as true now as they were then.”175 He described as “misguided” the majority’s supposed assurance that “Colorado has good reasons to violate Ms. Smith’s conscience for the greater good,” responding with Barnette’s language about the “very purpose of a Bill of Rights.”176 Pluralism and the need to accommodate diverse religious and other beliefs also feature, as he quoted Barnette’s language about applying the “limitations of the Constitution” with no fear that “freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization.”177 He then opined, “When all is said and done, allowing business owners like Ms. Smith to operate in accordance with the tenets of their faiths does not damage society but enriches it.”178 Although Colorado fails to “respect this diversity,” he argued, the First Amendment “protects” it by protecting Smith. Tymkovich concluded his dissent with Barnette’s admonition that “freedom to differ is not limited to things that do not matter much.”179 As applied to Smith, this means that the court must “presume” that she seeks to “live and speak by her faith,” not to “discriminate against any particular person or group.”180 Thus, while Colorado viewed her intended refusal to design certain websites as discrimination, he argued that the state should instead accept that refusal as “freedom to differ” (as Barnette puts it) as to “things that touch the heart of the existing order.”181 B. Arguments before the U.S. Supreme Court 175 Id. at 1205 (quoting Barnette, 319 U.S. at 642). 176 Id. at 1202 (quoting Barnette, 319 U.S. at 638). 177 Id. at 1212 (quoting Barnette, 319 U.S. at 641). 178 Id. at 1212. 179 Id. at 1215. 180 Id. 181 Id. (quoting Barnette, 319 U.S. at 642). Electronic copy available at: https://ssrn.com/abstract=4745476 36 The First Amendment exists to make sure that the state may not use the machinery of government to compel uniformity of opinion. See Barnette, 319 U.S. at 640-41. To permit a state untrammeled access within the marketplace of ideas would grant the power to regulate and silence those views that the state disapproves. App 80a (Tymkovich, C.J., dissenting). . . . [Petitioners] are compelled by their faith to say, and to not say, certain things while participating in their craft. The First Amendment, and this Court’s jurisprudence, afford Petitioners the space to create expression and market it while at the same time adhering to their faith. —Brief of Amici Curiae First Amendment Scholars in Support of Petitioners, 303 Creative LLC In her petition for certiorari, Lorie Smith contended that the Tenth Circuit’s decision “dims the most ‘fixed star in our constitutional constellation’: government cannot compel citizens to speak against their conscience.”182 Her amici similarly argued that CADA “violates the Free Speech Clause’s fixed star”—“the very Polaris of this Nation’s constellation of free speech jurisprudence”—and that, unless the Court corrected the Tenth Circuit decision, Colorado “is permitted to prescribe what is orthodox for public discourse and therefore compelling people, such as 303 Creative, to mouth support for views they find objectionable.”183 Such briefs use terms like “public discourse” and “uninhibited marketplace of ideas” (a term also used in Gorsuch’s majority opinion) to frame the issue as one of Colorado seeking to act as a “censor” or “guardian of the public’s minds” and to prohibit or eliminate “unpopular speech.”184 These briefs conflate the commercial marketplace with the marketplace of ideas, e.g. (quoting Tymkovich), “To permit a state untrammeled access within the marketplace of ideas would grant the power to regulate and silence those views that the state disapproves.”185 182 Petition for Writ of Certiorari at 19, 303 Creative LLC v. Elenis, 2021 WL 4459045 (2021) (No. 21-476). 183 Brief of Amici Curiae First Amendment Scholars in Support of Petitioners, at 16, 18, 303 Creative v. Elenis, No. 21-476 (in support of cert petition). This group of scholars filed a similar “merits” brief using the same language. 184 Id. at 7, 9-19. 185 Id. at 24. Electronic copy available at: https://ssrn.com/abstract=4745476 37 By contrast, amici for Colorado argued that, when a person enters “the marketplace of commerce,” they lose the “complete control” they enjoy in “the marketplace of ideas.”186 Echoing the late Justice Sandra Day O’Connor’s words in Roberts v. Jaycees, they argued, “Going into business marks a qualitative change in the nature of a person’s activity.”187 Similar to Chief Judge Tymkovich’s dissent (which they repeatedly quoted), Smith’s amici invoked various passages from Barnette, including its warning of the risk of compelling “uniformity of opinion.”188 Legal scholars Dale Carpenter, Eugene Volokh, and others filed an amicus brief featuring Barnette’s dramatic warning about the risks of governmental efforts to bring about “unification of opinion”: To compel speech is to conscript the individual’s mind in the service of the state. . . . A society that strives for “[c]ompulsory unification of opinion achieves only the unanimity of the graveyard.” W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 641 (1943). Our First Amendment is “designed to avoid these ends by avoiding these beginnings.” Id.189 Barnette’s progeny, Wooley and Hurley, also proved important in the briefs and Gorsuch’s opinion. Amici public accommodations scholars arguing in support of Colorado distinguished Hurley as, in the Supreme Court’s words there, a “‘peculiar’” application of public accommodations laws, which “‘as a general matter’” do not “‘violate the First or Fourteenth Amendments.’”190 They argued that, under “history, tradition, and precedent,” applying CADA to Smith’s website design business was not a similarly “peculiar” application or “rare” case.191 186 Brief of Public Accommodations Laws Scholars as Amici Curiae in Support of Respondents, at 6, 303 Creative LLC v. Elenis, No. 21-476 (quoting Jaycees, 468 U.S. at 636 (O’Connor, J., concurring in part and concurring in the judgment). 187 Id. 188 Brief of Amici Curiae First Amendment Scholars in Support of Petitioners, at 16, 18, 303 Creative v. Elenis, No. 21-476 (in support of cert petition). Id. at 24. 189 Brief of Amici Curiae Prof. Dale Carpenter et al, supra note 14, at 8. 190 Brief of Public Accommodations Laws Scholars, supra note 186, at 6. 191 Id. Electronic copy available at: https://ssrn.com/abstract=4745476 38 They also argued for a crucial distinction between “content-neutral laws that incidentally impact speech,” like CADA, and laws (such as those in Barnette and Wooley) that were “content based or facially aimed at speech.”192 To ignore that distinction, they argued (quoting Hurley) “trivializes the freedom protected in Barnette and Wooley.”193 In contrast, the Carpenter and Volokh amicus brief argued that such freedom was at stake: “requiring Smith to personally create expressive works does interfere” with the “‘individual freedom of mind’” protected by the First Amendment, as recognized in Barnette and Wooley.194 Their brief also argued that Hurley squarely applied to Smith’s website design (“pure speech”) and urged the Court to “reaffirm Hurley” and “remind the lower courts that state antidiscrimination laws are subject to the First Amendment’s protections, and clarify the circumstances in which heightened judicial scrutiny may be met.”195 Smith’s merits brief began with Barnette’s “what shall be orthodox” passage.196 Indeed, it asserted that the violation of her conscience by not being permitted an exemption from Colorado’s law was more “severe” than those suffered in Barnette, Wooley, or any other cases in which the Court had ruled that government compelled speech.197 Smith’s brief stated: “Not even the Barnette children had to compose the words or knit the flag that violated their conscience. This Court should not countenance a violation of conscience so severe that it eclipses . . . all [its] compelled speech precedents. . . .” 198 192 Id. at 7. 193 Id. 194 Brief of Amici Curiae Prof. Dale Carpenter et al, supra note 14, at 11. 195 Id. at 15. 196 Brief for the Petitioners, 303 Creative LLC v. Elenis, No. 21-476, at 2. 197 Id. at 23. 198 Id. Electronic copy available at: https://ssrn.com/abstract=4745476 39 As discussed above, Smith’s attorney, Kristen Waggoner (from the ADF) opened and closed her oral argument before the Supreme Court by appealing to Barnette and other compelled speech cases, concluding, “Colorado may not force Ms. Smith to create and speak messages on pain of investigation, fine and re-education.”199 Waggoner also invoked Obergefell’s “promise” that “government would not mandate orthodoxy” in arguing that Colorado should not be allowed “to drive views like Ms. Smith’s from the public square, views about marriage that this Court has held are honorable and decent.”200 While Smith evoked an image of being driven from the public square, Colorado’s brief opens with imagery of Coloradans who, “[e]very day,” “buy the goods and services they need from businesses that open their doors to the public,” and how customers—however they differ in how they “look, love, or worship”—“all expect to participate in the public marketplace as equals.”201 While Smith argued that CADA posed an even worse imposition on conscience than was at issue in Barnette, Colorado stressed the absence of Supreme Court precedent for First Amendment exemptions from antidiscrimination laws for businesses open to the public: “As an unbroken line of this Court’s decisions make clear, public accommodations laws permissibly regulate conduct when they require equal access to goods and services, even where the businesses engage in activities protected by the First Amendment.”202 The state cited cases rejecting First Amendment challenges to laws prohibiting sex discrimination (including Roberts v. Jaycees203) as well as race discrimination (including Newman v. Piggie Park Enterprises204 199 Transcript of oral argument, 303 Creative LLC v. Elenis, No. 21-476, at 4-5 (Dec. 5, 2022). 200 Id. at 152-53. 201 Brief on the Merits for Respondents, 303 Creative LLC v. Elenis, No. 21-476, at 1. 202 Id. at 13. 203 468 U.S. 609 (1984). 204 390 U.S. 400 (1968). Electronic copy available at: https://ssrn.com/abstract=4745476 40 and Heart of Atlanta Motel205).206 Colorado argued that reliance on Barnette and Wooley was wrong because CADA “does not require [Lorie Smith] to display or parrot state-sponsored ideologies.” 207 Instead, it “requires businesses to offer their goods and services for sale on an equal basis.”208 In an amicus brief in support of Colorado, the United States similarly appealed to Piggie Park and Heart of Atlanta Motel in emphasizing the vital role played by public accommodations laws like CADA in guaranteeing “equal access to the Nation’s commercial life.”209 At oral argument, Colorado’s attorney warned that the “sweeping” Free Speech Clause exemption that Smith sought—reaching far beyond “sincerely held religious beliefs”—would upend equal access to “our public marketplace.”210 As illustrated by Justice Ketanji Brown Jackson’s hypothetical about a photographer seeking to recreate nostalgic “Scenes with Santa” (with white children only), one question was whether an exemption for creative expression would permit racial discrimination.211 In response, Justice Alito brought up Obergefell’s language about opposition to same-sex marriage resting on “decent” and “honorable” beliefs to imply that, because Justice Kennedy would not have said the same thing about race discrimination, the race analogy was not appropriate.212 Smith’s counsel, however, did not appear to have a consistent or coherent answer about the race analogy or any limiting principle for a creative expression exemption. 205 379 U.S. 241 (1964). 206 Brief on the Merits for Respondents, supra note 201, at 14 (citing these three and other cases). 207 Id. at 19. 208 Id. 209 Brief for the United States as Amicus Curiae Supporting Respondents, at 1, 11. 210 Transcript of oral argument, at 59. 211 Id. at 26. 212 Id. at 81. Electronic copy available at: https://ssrn.com/abstract=4745476 41 C. The Supreme Court Embraces the Compelled Orthodoxy Claim My analysis of the Supreme Court’s decision in 303 Creative will highlight the role Barnette and its progeny play in Justice Gorsuch’s majority opinion. It then will compare Justice Sotomayor’s dissent. While the majority situates its decision as the latest example of a courageous Court standing up for the individual against an encroaching state, the dissent excoriates the majority for departing from the long history of the Court courageously defending citizenship-expanding antidiscrimination laws against backlash and repeated First Amendment challenges. Similarly, the majority, focusing on business owners, characterizes the marketplace for goods and services as one of “ideas,” such that a refusal of services expresses a significant idea; the dissent emphasizes customers and the laudatory ends furthered by requiring that the marketplace for goods and services be free from discrimination. 1. The Majority Opinion a. The Commercial Marketplace as a Marketplace of Ideas Justice Gorsuch’s majority opinion invokes Barnette at several points to frame his argument that, like the students in Barnette, website designer Lorie Smith confronted unconstitutional governmental compulsion. Hurley (one of Barnette’s progeny) and Boy Scouts of America v. Dale feature in his opinion as leading examples where the Court stopped similar compulsion. Early in the opinion, Gorsuch cites Dale for the proposition that “the framers designed the Free Speech Clause of the First Amendment to protect the ‘freedom to think as you will and to speak as you think.’”213 They saw these freedoms as being both an end and a means—an end because “freedom of thought and speech” are “among our inalienable human 213303 Creative LLC v. Elenis, 600 U.S. 570, 584-85 (2023) (quoting Boy Scouts of America v. Dale, 530 U.S. 640, 660-61 (2000)). Electronic copy available at: https://ssrn.com/abstract=4745476 42 rights” and a means because they are “‘indispensable to the spread and discovery of political truth.’”214 Justice Gorsuch then quotes the beginning of Barnette’s most famous passage, “if there is any fixed star in our constitutional constellation,” but adapts the rest of the passage so that the fixed star becomes “the principle that the government may not interfere with ‘an uninhibited marketplace of ideas.’”215 Thus, Gorsuch moves from the public elementary school room to the commercial marketplace, which becomes a marketplace of ideas, without acknowledging any differences. Notably, though, the case from which Gorsuch quotes, McCullen v. Coakley, was not about the commercial marketplace. Instead, it involved a First Amendment challenge by pro-life “sidewalk counselors” to a Massachusetts law creating a buffer zone around medical clinics that performed abortions.216 Because the law prohibited standing on a “public way or sidewalk” within “35 feet of an entrance, exit or driveway of a reproductive health care facility,” the petitioners contended that it had “considerably hampered” their efforts to persuade pregnant women against abortion.217 (Chief Justice Roberts, writing for the majority, concluded that, while the law was “neutral” rather than “content-based,” it still violated the First Amendment because it was not “narrowly tailored”: the legislature could have adopted “alternative measures that burdened substantially less speech” yet still achieved the government’s interest in public safety, patient access to healthcare, and unobstructed use of public sidewalks and roads.218) 214 303 Creative, 600 U.S. at 584-85 (quoting Whitney v. California, 274 U.S. 357 (1927) (Brandeis, J., concurring)). 215 Id. at 584-85 (emphasis added). 216 McCullen v. Coakley, 573 U.S. 464 (2014). 217 Id. at 473-74. 218 Id. at 485-97. Electronic copy available at: https://ssrn.com/abstract=4745476 43 The McCullen majority, in striking down the law, stressed the historical and continuing importance of “public streets and sidewalks” as “venues for the exchange of ideas.”219 By comparison with “other means of communication,” a listener on a public street or sidewalk “confronted with an uncomfortable message” cannot simply avoid it by turning a page, changing a channel, or leaving a website. Just as a speaker “can be confident he is not simply preaching to the choir,” a listener may encounter speech they “might otherwise tune out.”220 In summing up, Chief Justice Roberts observed, “In light of the First Amendment’s purpose ‘to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail,’ . . . this aspect of traditional public fora is a virtue, not a vice.”221 He added, “Petitioners wish to converse with their fellow citizens about an important subject on the public streets and sidewalks—sites that have hosted discussions about the issues of the day throughout history.”222 In 303 Creative, Gorsuch similarly envisions Smith and similar business owners as having First Amendment protection not to be forced by government to “create speech on weighty issues with which she disagrees” and to be able to express messages others do not want to hear.223 McCullen stressed the importance of being free to speak in public locations, while Gorsuch stresses being free not to speak in websites. Is a website design business really analogous to a public forum with respect to a marketplace of ideas, whether popular or 219 Id. at 476. 220 Id. 221 Id. (citing FCC v. League of Women Voters of Cal., 468 U.S. 364, 377 (1984)). 222 Id. at 496. 223 303 Creative, 600 U.S. at 596. Electronic copy available at: https://ssrn.com/abstract=4745476 44 unpopular? Are Smith’s website designs and refusals to design actually contributing to vital public discourse?224 b. CADA as the Latest Example of Governmental Overreach The West Virginia statute struck down in Barnette, Justice Gorsuch argues, is an example of how “governments in this country have sought to test” the “foundational principles” of freedom of speech and thought.225 He offers Hurley and Dale as examples of the First Amendment protecting a right to present speech or a “message” even if it is “unpopular” (Hurley), the government considers it “deeply ‘misguided’” (Dale), or it is “likely to cause ‘anguish’ or ‘incalculable grief.’”226 “Generally,” Gorsuch continues, “the government may not compel a person to speak its own preferred messages.”227 He enlists Barnette to address where the Tenth Circuit went wrong: it “thought Colorado could compel speech from Ms. Smith consistent with the Constitution,” contrary to the teaching of Barnette, Hurley, and Dale. In Barnette, “this Court found impermissible coercion when West Virginia required school children to recite a pledge that contravened their convictions on threat of punishment or expulsion.”228 The state’s “dictates,” he continues (quoting Barnette), “invaded the sphere of intellect and spirit which it is the purpose of the First Amendment to reserve from all official control.”229 224 Robert Post argues that the key issue in 303 Creative is not whether Smith’s website design was “pure speech,” which can be regulated in various contexts, but whether it was “public discourse,” subject to stricter protection. See Post, supra note 52. 225 303 Creative, 600 U.S. at 585. 226 Id. at 586 (quoting Snyder v. Phelps, 562 U.S. 443, 456 (2011)). 227 303 Creative, 600 U.S. at 586. In support, Gorsuch cites Tinker v. Des Moines, 393 U.S. 503 (1969), in which the Court upheld students’ First Amendment right to wear armbands as a form of political protest, as well as Wooley (the license plate case). 228 303 Creative, 600 U.S. at 589. 229 Id. at 585. Electronic copy available at: https://ssrn.com/abstract=4745476 45 Gorsuch views the plight of Smith as “similar” to the “choice” put to the school children: “If she wishes to speak, she must either speak as the State demands or face sanctions for expressing her own beliefs,” such as “compulsory participation in remedial training,” filing compliance reports, and “paying monetary fines.”230 He again turns to Barnette in rejecting Colorado’s argument (and that of Justice Sotomayor’s dissent) that CADA imposed only an “incidental burden on speech” and was consistent with other precedents (such as Rumsfield v. FAIR).231 Instead, Colorado “seeks to force an individual to ‘utter what is not in [her] mind’ [quoting Barnette] about a question of political and religious significance.”232 Justice Gorsuch insists that the First Amendment extends to “all persons engaged in expressive conduct, including those who seek profit (such as speechwriters, artists, and website designers).”233 While the dissent (as discussed below) argued that because Barnette, Hurley, and Dale involved school children and nonprofit organizations, it was “dispiriting” to apply them to commercial activity, Gorsuch retorted, “If anything is truly dispiriting here, it is the dissent’s failure to take seriously this Court’s enduring commitment to protecting the speech rights of all comers, no matter how controversial—or even repugnant—many may find the message at hand.”234 c. The Court as Protector Against Compelled Speech (or Silence) In closing dramatically, Justice Gorsuch treats the Court’s protection of Smith against compelled speech—and orthodoxy—as the latest in a series of courageous First Amendment decisions. As stated above, he writes, “Eighty years ago in Barnette, this Court affirmed that ‘no 230 Id. 231 Id. at 596. 232 Id. at 586 (citing Barnette, 319 U.S. at 634). 233 Id. at 600-01. 234 Id. at 600-01. Electronic copy available at: https://ssrn.com/abstract=4745476 46 official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion,’” even though “the speech rights it defended were deeply unpopular; at the time, the world was at war and many thought respect for the flag and the pledge ‘essential for the welfare of the state.’”235 The Court, fifty years ago, “protected the right of Nazis to march through a town home to many Holocaust survivors and along the way espouse ideas antithetical to those for which this Nation stands.”236 He continues the chronology with Masterpiece Cakeshop, “five years ago,” in which Justice Kennedy, invoking Barnette’s “fixed star” passage, stated that “it is not . . . the role of the State or its officials to prescribe what shall be offensive.”237 Justice Gorsuch charges the 303 Creative dissenting justices with “abandoning the Court’s recognition in all these cases that [a] commitment to speech for only some messages and some persons is no commitment at all.”238 Contending that the dissent is “emblematic of an unfortunate tendency by some to defend First Amendment values only when they find the speaker’s message sympathetic,” he favorably quotes the dissent of Chief Judge Tymkovich (quoting Orwell): “[i]f liberty means anything at all, it means the right to tell people what they do not want to hear.”239 In his final paragraph, Justice Gorsuch continues the comparison of past to present, mentioning Barnette, Hurley, and Dale as instances in which states have “tested the First 235 Id. at 601-02. 236 Id. at 602. 237 Id. (quoting Masterpiece Cakeshop, 584 U.S at __, 138 S. Ct. at 1746). Kennedy quotes from Matal v. Tam, 137 S. Ct. 1744, 1762-64 (2017) (Alito, J., concurring). Gorsuch also cites Counterman v. Colorado, 600 U.S. 66, 143 S. Ct. 2106, 2114-15 (2023), in which the Court recognized limits on how states may prosecute stalkers “despite the ‘harmful,’ ‘low value,’ and ‘upsetting’ nature of their speech.” Gorsuch also cites to Sotomayor’s opinion partially concurring and concurring in the judgment in Counterman. Id. at 2121-22. 238 303 Creative, 600 U.S. at 602. 239 Id. Electronic copy available at: https://ssrn.com/abstract=4745476 47 Amendment’s boundaries by seeking to compel speech they thought vital at the time.”240 Similarly, Colorado “seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.”241 In this battle, framed as pitting government against individual speech and conscience, the individual must win. Just as the opinion began with why the founders valued free speech, it concludes with an appeal to the “cherished liberty” of “the opportunity to think for ourselves and to express those thoughts freely” as “part of what keeps our Republic strong.”242 Because of this constitutional commitment to freedom of speech, “all of us will encounter ideas we consider ‘unattractive, . . . ‘misguided, or even hurtful.’”243 Gorsuch concludes: But tolerance, not coercion, is our Nation’s answer. The First Amendment envisions the United States as a rich and complex place where all people are free to think and speak as they wish, not as the government demands.244 Throughout, Gorsuch characterizes Colorado as seeking to compel speech in order to “excise certain ideas or viewpoints from the public dialogue,”245 again suggesting that commercial website design is a form of public discourse. Quoting cautionary hypotheticals used in Chief Judge Tymkovich’s dissent, Gorsuch contends that Justice Sotomayor’s dissent “refuses to acknowledge where its reasoning leads”: unless the Court limits CADA, “countless other creative professionals” will be forced to choose between ‘remaining silent, producing speech that violates their beliefs, or speaking their minds and incurring sanctions for doing so.’”246 240 Id. at 603. 241 Id. 242 Id. 243 Id. 244 Id. 245 Id. at 588. 246Id. at 590, 601. The hypotheticals involve Muslim movie directors compelled to make films with Zionist messages, an atheist muralist having to accept a commission celebrating Evangelical zeal, and a website designer Electronic copy available at: https://ssrn.com/abstract=4745476 48 d. The Protection of Freedom of Speech to the Exclusion of Antidiscrimination Law Justice Gorsuch frames the conflict between freedom of speech and antidiscrimination law in hierarchical terms: if public accommodations laws conflict with the First Amendment by stifling the “marketplace of ideas,” the Constitution must prevail. Justice Sotomayor’s dissent frames the issue very differently: the Court has recognized the constitutionality of antidiscrimination law and defended it against constitutional challenges brought by business owners—persons active in the marketplace—until 303 Creative. Because Gorsuch’s primary framing is the Court’s proud history protecting the First Amendment to thwart governmental compulsion of speech, he gives comparatively little attention to the proud history of protecting antidiscrimination laws against First Amendment challenges. He includes a scant three paragraphs acknowledging “the vital role public accommodations laws play in realizing the civil rights of all Americans”—quoting Masterpiece Cakeshop’s recognition that such laws further compelling governmental interests—before asserting, “when a state public accommodations law and the Constitution collide, there can be no question which must prevail.”247 Notably, unlike Justice Sotomayor, Justice Gorsuch does not include Justice Kennedy’s statement in Masterpiece Cakeshop that, although religious and philosophical objections to marriage equality are protected views, there is a general obligation to comply with antidiscrimination laws.248 While Sotomayor stresses that Hurley and Dale involved “peculiar” applications of public accommodations laws—because of the type of entity they reached (a parade and a Boy Scout troop)—Gorsuch contends that they show that public accommodations who is a man married to another man forced to design websites for an organization advocating against same-sex marriage. Id. at 601 (citing 6 F.4th at 1199 (Tymkovich, C.J., dissenting)). 247 Id. at 592. 248 138 S. Ct. at 1727. Electronic copy available at: https://ssrn.com/abstract=4745476 49 laws “can sweep too broadly when deployed to compel speech”249 in attempting to “co-opt an individual’s voice for [the state’s] own purposes.”250 e. The Scope of the Ruling? Justice Gorsuch does not give a clear statement of the scope of the Court’s ruling with respect to First Amendment protection of creative professionals other than Smith. As discussed above, he waves aside the dissent’s “sea of hypotheticals.” He grants that, “doubtless, determining what qualifies as expressive activity protected by the First Amendment can sometimes raise difficult questions,” but maintains that there was no such complication in the present case because the parties had stipulated that Smith sought to engage in expressive activity and the Tenth Circuit concluded that her websites were “pure speech.”251 Notably absent from Justice Gorsuch‘s opinion are any disclaimers stating that the Court’s ruling would not apply to beliefs about interracial marriage, the inferiority of women, or—to take another of Justice Sotomayor‘s hypotheticals—a belief that persons with disabilities should not have children.252 Also notable is that, aside from the opinion’s acknowledgment that Smith’s views are rooted in her religious beliefs, it contains little discussion of religious liberty. This may be strategic, since the Court accepted review of Smiths’ free speech argument, not her free exercise one. However, by not distinguishing objections to civil marriage equality for same-sex couples from other “ideas” about marriage or matters of political or moral significance, Gorsuch seems to leave the door open for broad-based exemption of any business owners whose work includes a creative or expressive element and who claim that serving a particular customer 249 303 Creative, 600 U.S. at 592. 250 Id. 251 Id. at 599. 252 Id. at 638 (Sotomayor, J., dissenting). Electronic copy available at: https://ssrn.com/abstract=4745476 50 would require expression of ideas with which they do not agree. The Court indeed states that the First Amendment requires us to tolerate unattractive, misguided, and hurtful ideas. As observed above, when denial of services is recast as expression of ideas, the commercial marketplace becomes the marketplace of ideas. 2. The Dissent While Justice Gorsuch’s majority opinion begins with a long history of the protection of free speech and the reasons for that protection, Justice Sotomayor’s dissent begins with the long history of public accommodations laws and the reasons for such laws. In fact, Sotomayor opens with Masterpiece Cakeshop’s recognition, “five years ago,” of the “general rule” that religious and philosophical objections to gay marriage “do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”253 Sotomayor offers several powerful stories of denials of service—spanning several decades—to illustrate how public accommodations laws ensure “equal dignity in the common market.”254 Justice Sotomayor stresses the Court’s courage in its “unwavering” rejection of First Amendment and other constitutional challenges by businesses to public accommodations laws protecting against discrimination on the basis of race and sex. She even notes the unsuccessful invocation of Barnette in the brief filed by Ollie’s Barbeque in Katzenbach v. McClung.255 253 Id. at 603. 254 Id. at 607. As historical examples, the dissent mentions Ruth Bader Ginsburg’s experience, as a young girl, of seeing a sign, “No dogs or Jews allowed,” and Jackie Robinson not being able to stay in the same hotel as his white teammates. As a recent example, Sotomayor mentions a family not being to obtain funeral home services in rural Mississippi for an elderly man once the home learns his surviving spouse is a man. Id. at 607-08. Kenji Yoshino argues that the “deep informality” of Justice Sotomayor’s introducing to readers the stories about LGBTQ+ persons denied goods and services or subjected to violence (Matthew Shepard)—using their first names—makes a “direct, plain-throated address to the reader.” Kenji Yoshino, Rights of First Refusal, 137 HARV. L. REV. 244, 287 (2023) 255 303 Creative, 600 U.S. at 607. Electronic copy available at: https://ssrn.com/abstract=4745476 51 Sotomayor writes: “Time and time again, business and other commercial entities have claimed constitutional rights to discriminate. And time and again, this Court has courageously stood up to those claims—until today. Today, the Court shrinks.”256 Justice Sotomayor distinguishes Barnette and its progeny as inapplicable to whether Smith may offer her wedding websites only to different-sex customers. While Justice Gorsuch states that public accommodations laws must yield to the Constitution, Sotomayor states that constitutional values are antithetical to discrimination in public accommodations. “The refusal to deal with or serve a class of people is not an expressive interest protected by the First Amendment.”257 She quotes cases involving private schools unsuccessfully seeking to keep out Black students: “invidious private discrimination has never been accorded affirmative constitutional protections.”258 Her narrative marshals the Court’s many precedents upholding public accommodations laws as constitutionally prohibiting “acts of invidious discrimination, in the distribution of publicly available goods, services, and other advantages.”259 She quotes Justice O’Connor in Roberts v. Jaycees: “A shopkeeper has no constitutional right to deal only with persons of one sex.”260 Justice Sotomayor also situates the present conflict in the context of prior battles over public accommodations: while “backlashes to race and sex equality gave rise to legal claims of rights to discriminate, including claims based on first amendment freedoms of expression and association,” the Supreme Court “was unwavering in its rejection of those claims.”261 256 Id. at 623. 257 Id. at 619. 258 Id. 259 Id. at 622. 260 Id. (citing Roberts v. Jaycees, 468 U.S. 609, 624 (O’Connor, J., concurring)). 261 Id. at 619. Electronic copy available at: https://ssrn.com/abstract=4745476 52 Whereas Justice Gorsuch situates Smith as one in an historical series of individuals threatened by governmental compulsion, Sotomayor’s narrative stresses the human costs of the Court for the first time in its history granting a “license to discriminate” to businesses open to the public—a right to refuse to serve members of a protected class.262 She portrays the Court’s decision as a step “backward.” “In this pivotal moment, the Court had an opportunity to reaffirm its commitment to equality on behalf of all members of society, including LGBT people.”263 But it did not do so. Instead, “[t]he decision threatens to balkanize the market and to allow the exclusion of other groups from many services”:264 A website designer could equally refuse to create a wedding website for an interracial couple, for example. How quickly we forget that opposition to interracial marriage was often because “‘Almighty God . . . did not intend for the races to mix.’” [Loving v. Virginia.] Yet the reason for discrimination need not even be religious, as this case arises under the Free Speech Clause. A stationer could refuse to sell a birth announcement for a disabled couple because she opposes their having a child. A large retail store could reserve its family portrait services for “traditional” families. And so on.265 Justice Gorsuch dismisses these and other examples of the possible effects of the majority opinion as “pure fiction all.”266 However, it is not at all clear why they are fiction. He makes no effort to distinguish many of the cases cited by Justice Sotomayor in which there was undoubtedly an expressive element in an organization’s or business’s activities and yet the Court upheld a state public accommodations law or a federal one. How the creative expression holding of 303 Creative will apply in the marketplace of goods and services, conceived as an “uninhibited marketplace of ideas,” remains to be seen. Conclusion 262 Id. at 637. 263 Id. at 638. 264 Id. 265 Id. at 638-39. 266 Id. at 598. Electronic copy available at: https://ssrn.com/abstract=4745476 53 On December 11, 2023, the Supreme Court denied a petition for certiorari in Tingley v. Ferguson, in which the Ninth Circuit rejected a challenge by Brian Tingley, a licensed therapist, to a 2018 Washington law making “[p]erforming conversion therapy on a patient under the age of eighteen a ‘form of unprofessional conduct subject to discipline.’”267 Justice Thomas dissented from the denial, concluding his five-page dissent with a quotation of Barnette’s “fixed star” passage. He continued: Yet, under SB 5722 [Washington’s law], licensed counselors cannot voice anything other than the state-approved opinion on minors with gender dysphoria without facing punishment. The Ninth Circuit set a troubling precedent by condoning this regime. Although the Court declines to take this particular case, I have no doubt that the issue it presents will come before the Court again. When it does, the Court should do what it should have done here: grant certiorari to consider what the First Amendment requires.268 “What the First Amendment requires.” In 303 Creative, the conservative majority and the three justices in dissent differed sharply in their answer to that question in assessing First Amendment objections to public accommodations laws. Tingley presents a different context, a state law intended to protect the health and well-being of minors. Yet Justice Thomas viewed it through the frame of an overweening state silencing “one side” of a “fierce public debate over how best to help minors with gender dysphoria” and compelling counselors to convey an orthodoxy, a “state-approved message of encouraging minors to explore their gender identities.”269 Several amici urging the Court to grant certiorari likewise quoted Barnette’s “fixed star” language; even more argued that Washington was imposing a “gender ideology” or 267 Tingley v. Ferguson, 47 F.4th 1055 (9th Cir. 2022), reh’g denied, 57 F. 4th 1072, 1074 (9th Cir. 2023), cert denied, 601 U.S. __ (Dec. 11, 2023). 268 Tingley v. Ferguson, 601 U.S. __ (2023), slip op. at 5 (Thomas, J., dissenting). Justice Kavanaugh would have granted the petition, but did not write a dissent. Justice Alito wrote a brief dissent from the denial of certiorari, indicating that the Ninth Circuit’s holding rested on a prior Ninth Circuit case disapproved by the Supreme Court in NIFLA v. Becerra, 585 U.S. __, 138 S. Ct. 2361 (2018). 269 Tingley, 601 U.S. at ___, slip op. at 1, 4 (Thomas, J., dissenting). Electronic copy available at: https://ssrn.com/abstract=4745476 54 governmental “orthodoxy” about gender. Notably, although amici did not expressly cite 303 Creative, some echoed Justice Gorsuch’s marketplace rhetoric from that decision: “No matter how politically popular it is to promote LGBT ideology, the government must nevertheless ‘preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.’”270 This, despite the legislative record that Washington legislators “relied on the fact that ‘[e]very major medical and mental health organization’ has uniformly rejected aversive and non-aversive conversion therapy as unsafe and inefficacious,” in addition to hearing “qualitative evidence of harm from Washington residents who were exposed to non-aversive conversion ‘talk’ therapy and urged them to enact legislation prohibiting the practice.”271 “What the First Amendment requires” also led a conservative majority, pre-303 Creative, to hold unconstitutional California’s efforts to require crisis pregnancy centers to post truthful information about the scope of their services and the availability of reproductive health care, including abortion, elsewhere. That case, National Institute of Family and Life Advocates (NIFLA) v. Becerra,272 authored by Justice Thomas, has become a vital building block for arguments that state legislation—like Washington’s conversion therapy ban—is (in Thomas’s words) a content-based regulation that “‘pose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information.’” 273 Like Gorsuch in 303 Creative, Thomas cites to McCullen v. Coakley, cautioning that “when the government polices the content of professional speech,” it can fail to “‘preserve an uninhibited 270 Brief of Amici Curiae Institute for Faith and Family and Advocates for Faith & Freedom in Support of Petitioner, Tingley v. Ferguson, at 4 (citing McCullen v. Coakley, 573 U.S. 464, 476 (2014)). 271 Tingley, 47 F. 4th at 1078. 272 138 S. Ct. 2361 (2018). 273 Id. at 2374 (citation omitted). Electronic copy available at: https://ssrn.com/abstract=4745476 55 marketplace of ideas in which truth will ultimately prevail.’”274 Governmental efforts to exercise the police power to promote the health, safety, and welfare of the people fare poorly when recast as a governmental “orthodoxy” that stifles this “uninhibited marketplace.” Barnette is by no means the only precedent that features in these framings of state laws as impermissible impositions of an orthodoxy. But a common thread is an appeal to the threat of authoritarian or totalitarian government, with alarming historical examples deployed to indict present-day legislative efforts that suppress “unpopular ideas or information” or hinder the “marketplace of ideas.” For example, in NIFLA, Thomas offers examples “throughout history” of how governments have “‘manipulat[ed] the content of doctor-patient discourse’ to increase state power and suppress minorities.”275 These include the Cultural Revolution in China, Nazi Germany’s Third Reich, the Soviet government, and Nicolae Ceausescu’s strategies to “increase the Romanian birth rate.”276 In his concurring opinion in NIFLA, Justice Kennedy enlists one of Barnette’s progeny, Wooley, in chiding the California legislature for characterizing the law under challenge as “part of California’s legacy of ‘forward thinking.’”277 Quoting Wooley, he retorts: “But it is not forward thinking to force individuals to ‘be an instrument for fostering public adherence to an ideological point of view [they] fin[d] unacceptable.’”278 Kennedy offers a different model of “forward thinking”: to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come. Governments 274 Id. 275 Id. 276 Id. 277 Id. at 2379 (Kennedy, J., concurring). 278 Id. (citing Wooley, 430 U.S. at 715). Electronic copy available at: https://ssrn.com/abstract=4745476 56 must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief.279 This dramatic prose about “relentless authoritarian regimes” stifling speech seems mismatched with a law that, among other things, sought to let pregnant persons know that the facility they were visiting was not a licensed facility. As Carlos Ball observes in this symposium, “we do not know, of course, how Justice Kennedy would have voted in 303 Creative had he still been on the Court when it was decided.”280 However, despite Kennedy’s attempt in Masterpiece Cakeshop to find a way forward in First Amendment challenges to antidiscrimination laws—both “without undue disrespect to sincere religious beliefs” and “without subjecting gay persons to indignities when they seek goods and services in an open market”281—his rhetoric in NIFLA—about the state impermissibly compelling individuals to “contradict their most deeply held beliefs, beliefs grounded in basic philosophical, ethical, or religious precepts, or all of these”282—might have signaled a readiness to accept compelled speech claims like Lorie Smith’s as prevailing over Colorado’s interests in enforcing its law. Whatever Justice Kennedy might have done, the current landscape presents a growing number of contexts in which governmental efforts to promote full and equal citizenship as well as to advance the common good encounter objections of unconstitutional imposition of a governmental orthodoxy. These objections, and the dramatic historical cautionary tales on which they rely, warrant very careful evaluation lest they unduly thwart the very possibility of an active 279 Id. 280 Ball, supra note 16, at 54. 281 Masterpiece Cakeshop, 138 S. Ct. at 1732. 282 NIFLA, 138 S. Ct. at 2379. Electronic copy available at: https://ssrn.com/abstract=4745476 57 government seeking to carry out its functions. Of course, claims of a governmental orthodoxy are not always sounded in conservative objections to liberal or progressive governmental efforts. Another lesson is that liberals and progressives also can make warnings about an authoritarian state imposing an orthodoxy when challenging conservative measures seeking to hinder efforts to promote equality and remedy forms of structural injustice. Liberals and progressives likewise can invoke George Orwell for those purposes. For example, in Pernell v. Florida Board of Governors of the State University System, a federal district court issued an injunction against Florida’s Individual Freedom Act (the so-called Stop W.O.K.E. Act)—modeled on President Trump’s executive order banning “divisive concepts” about racism, sexism, and the like in governmental trainings—in response to a First Amendment challenge brought by students and professors.283 Judge Mark E. Walker began his opinion by quoting from Orwell’s 1984. In describing the “positively dystopian” world the Florida law created for professors—in which they “enjoy ‘academic freedom’ so long as they express only those viewpoints of which the State approves”—he quoted the very passage that Justice Gorsuch would invoke subsequently in 303 Creative, “It should go without saying that ‘[i]f liberty means anything at all it means the right to tell people what they do not want to hear.’”284 The judge criticized the state defendants’ praise for the “marketplace of ideas” in a parallel case, pointing out the state’s “doublespeak” when faculty had only “freedom” to express state-approved viewpoints.285 He observed that the college students and university professors challenging the 283 641 F. Supp. 3d 1218, 1230 (N.D. Fla. 2022). On March 16, 2023, the Eleventh Circuit denied the appellants’ motion to stay the injunction pending appeal. USCA11 Case: 22-13992, filed Mar. 16, 2023. 284 641 F. Supp. at 1230. On the right-wing appropriation of Orwell in recent culture-war controversies, see Sandra Newman, Now Right-Wing, Anti-“Woke” Doublethink Has Come for George Orwell, WASH. POST, Dec. 12, 2023, https://www.washingtonpost.com/opinions/2023/12/12/orwellian-criticism-right-wing/. 285 Id. at 1230 n.4. Electronic copy available at: https://ssrn.com/abstract=4745476 58 Florida law were appealing to the Supreme Court’s “long history of shielding academic freedom from government encroachment and the First Amendment’s intolerance toward government attempts to ‘cast a pall of orthodoxy over the classroom.’”286 In its use of Barnette, the 303 Creative majority “yielded once again to the temptation to address difficult First Amendment problems with simple rules,”287 with insufficient attention to context and to the complexity of the constitutional and political values at stake. 286 Id. at 1233 (citing Keyishian v. Board of Regents of University of State of New York, 385 U.S.589, 683 (1967)). 287 Post, supra note 52, at 1. Electronic copy available at: https://ssrn.com/abstract=4745476 |
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