Moira Donegan writes:

On Friday the US supreme court expanded the right to free speech into a right of businesses to discriminate. In a 6-3 decision, with the majority opinion by Neil Gorsuch, the justices declared that a Colorado civil rights statute prohibiting discrimination on the basis of sexual orientation in public businesses violates the first amendment’s freedom of speech. The ruling appears to formalize the right of homophobic business owners to not serve gay people in some situations.

303 Creative v Elenis concerns a woman, Lorie Smith, who operates a website design service and wishes to be exempted from a Colorado civil rights law that requires her to treat all customers equally. Specifically, Smith, a conservative Christian, wants to be able to refuse service to same-sex couples seeking wedding websites, and to be able to place a banner on the home page of her business declaring that she will not make such sites. The court has in recent years dramatically expanded the free exercise of religion clause, often granting conservative Christian plaintiffs leeway to curtail their personal obligations to the law. But 303 Creative offers a different theory of the case: that the legal requirement not to discriminate against gay people is a violation of the plaintiff’s free speech.

It’s an odd, and expansive, vision of “speech”. There’s nothing stopping the web designer from, say, buying a billboard to advertise her opposition to gay rights, or from speaking out against such rights in her own writing, electioneering, internet posts and personal life. But Smith didn’t just want to be able to avail herself of all the vast opportunities for speech, expression, debate and persuasion available to her. She wanted to express her bigotry in her business, via the conduct of her public-facing commercial enterprise. She wanted to be able to discriminate at work.

The supreme court has now allowed her to. The justices’ decision pertains to the allegedly narrow question of “whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the first amendment”. But there is no real limiting principle in the 303 decision, no matter what the court says; no guarantee that the precedent this decision sets will confine itself to legalizing only discrimination against gay people, or only refusal of service for weddings.

Indeed, the case threatens to unravel a whole matrix of anti-discrimination laws governing public accommodations, redefining public-facing commercial enterprises as speech and discrimination as personal expression. The label that Smith wants to put at the top of her business website – effectively declaring that only straight people can be served – evokes the darkest history of public discrimination in this country. [Continue reading…]