On June 30, 2023, the last day of the court’s term, the Supreme Court of the United Status issued its ruling in the case of 303 Creative LLC v. Elenis. The ruling was the same as I had predicted six months ago. The opinions are a little disappointing, however.
Both the majority and dissent seem to have difficulties reconciling rights to free speech and rights to equal access. The majority writes, “When a state public accommodations law and the Constitution collide, there can be no question which must prevail”. The dissent clearly agrees on “there can be no question”, but disagrees on “which must prevail”. One would think that the Constitution doesn’t contradict itself. If there is any truth to these unalienable rights, surely we can safeguard them all, without trampling on any.
If I understand it correctly, the logic of the dissent is this: If a person offers or sells any service to the public, s/he must offer the same service to all comers. Otherwise, it “is status-based discrimination, plain and simple”. Even if expressive speech is involved, the infringement upon speech is only “incidental”, as the government doesn’t compel the creation, nor change the meaning, of the speech, but merely requires such speech-service be offered to all.
The dissent makes a few unwarranted implicit assumptions.
First, the dissent wrongly assumes goods and services offered in public are applicable to all. For example, the expertise of gynecologists would be serviceable to women only. It would be absurd to demand that they provide the same service to men, on the ground that refusal to do so constitutes discrimination based on sex. It would be only sensible and reasonable to refer men to urologists, as they provide a truly “equal but separate” service. “Equal but separate” was a claim made to justify racial discrimination, but it doesn’t follow that any notion of proportional equality, where the subject is treated differently based on its unique characteristics, is unjust discrimination.
Second, the dissent wrongly assumes that speech is context-neutral. As I’ve explained in a previous post, context often determines speech. Let’s consider a hypothetical slightly different from the one given by the dissent: A photographer opens a photo booth and sells married couples photos with the caption “Married for # years”. If the photographer refuses to sell his service to couples who cannot produce a marriage licence, is he guilty of discrimination based on marital status? I would think not. Why? The service involves expressive speech, and the message is a factual truth when married couples are featured in the photo, but it becomes a lie when unmarried people are featured instead.
In her opinion, Justice Sotomayor states no less than four times that the petitioner believes same-sex marriages are “false”. In other words, to the petitioner, saying the union between same-sex couple is marriage amounts to telling a lie, just as representing unmarried couples as married is a lie. Compelling the petitioner to say expressly what she believes to be false or else remain silent violates her First Amendment right to free speech. A government has the authority to grant the same legal status and benefits to same-sex union as marriage, but it doesn’t have authority to regulate speech by way of changing the meaning of the words.
Lastly, the dissent argues that claims based on the First Amendment have been made to justify discrimination in the past, and the Court decisively rejected them. Just because invalid claims have been made, it doesn’t follow there are no valid claims. She hasn’t explained why and how those precedents resolve this case. The one key precedent she cites actually works against her – not the least because the Justice who wrote the Court’s opinion in that case not only joined the majority, but also refuted this particular line of argument during Oral Argument.
IN conclusion, the desire to ensure the dignity of all citizens, especially the minorities, is commendable. Dignity cannot be legislated, however, it must be lived. A dignified Republic is built upon civil and open interaction, exchange of ideas and goods, mutual understanding and mutual service. None of these can be realized without the willing consent of the citizens, and their determined and sustained effort to seek a common ground and achieve a common vision.
Related Posts:
References:
- “303 Creative LLC v. Elenis.” Oyez. Accessed July 5, 2023. https://www.oyez.org/cases/2022/21-476