The decision in 303 Creative gives those committed to free speech and the free exercise of religion much to celebrate. The Court held that a website designer’s work is “speech” in a constitutional sense, and so she cannot be compelled to prepare messages for same-sex weddings, to which she has religious objections.
But artistic vendors are not the only ones who have religious and other objections to same-sex marriage. So do restauranteurs who cater receptions and rehearsal dinners or lessors of facilities for large events. What does 303 Creative do for them? Nothing positive, and maybe something negative to the extent it leaves the impression that only “artistic” vendors have protection from civil rights and public accommodations laws that include the categories of sexual orientation and gender identity.
At base, all vendors who object to serving same-sex marriages, whether or not they are providing “artistic” services, have the same foundational problem: they all believe that same-sex marriage is wrong and that it would be immoral to assist or associate with such a wedding. If they all have the same foundational problem, why, then, do not artistic and non-artistic vendors have the same defenses to being compelled to support by their efforts a same-sex marriage (or be punished if they do not)? They do, on two levels.
First, refusing to service a same-sex wedding is not discrimination against sexual orientation; it is refusing to collaborate with a message, not refusing to serve because of the potential customer’s status. For instance, if a black restaurateur refused to cater a white supremacist organization’s banquet, no one would accuse him of racial discrimination against whites. That is because his discrimination is not against whites as a class, but against the message of these particular whites. The same was true for the web designer in 303 Creative, as she gladly served gay customers when it did not involve preparing a message that violated her beliefs. Her refusal to service same-sex weddings was not a substitute for discriminating against homosexuals as a class, and so it did not violate the public accommodations laws, as properly interpreted.
Of course, the civil rights and public accommodations laws are not always properly interpreted, as the Colorado courts proved in 303 Creative. According to the Colorado courts, refusing to service same-sex weddings was unlawful discrimination against individuals due to their sexual orientation. Federal courts will hopefully not fall into this error when construing federal laws and regulations that prohibit discrimination against sexual orientation and gender identity, but they cannot do anything about states construing their own laws in this overly expansive way.
This brings us to the second defense for both artistic and non-artistic vendors objecting to serving same-sex marriages. The key speech involved is that of the gay couple, not that of the vendor. Even the artistic vendor, the website designer in 303 Creative, is complaining that she is being forced to give voice to the message of the marriage participants, a message to which she has religious objections. Emanating from the First Amendment’s rights of speech and assembly, there is a right not to associate with a message one finds objectionable, and that is the most fundamental right involved in these cases. Turning again to the black restauranteur, it is the difference between saying he will not service any whites—which is discrimination against individuals because of their status as members of a protected class—and saying he refuses to facilitate or associate with a message of white supremacists, to which he has moral objections.
The situation of wedding vendors is no different in essentials to that in Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston. The Court in the 303 Creative opinion described Hurley as follows:
The Court held that Massachusetts’s public accommodations statute could not be used to force veterans organizing a parade in Boston to include a group of gay, lesbian, and bisexual individuals because the parade was protected speech, and requiring the veterans to include voices they wished to exclude would impermissibly require them to alter the expressive content of their parade.”
While the Court identified the parade as “protected speech,” that was not the crux of the case, which did not so much focus on the speech of the veterans as it did on the message of those the city would have required them to include in the parade. Thus, the city’s action was unconstitutional because it would have compelled the veterans to facilitate the message of others (compelled speech) and also because it would force them to assemble with others with whom they did not wish to associate (compelled assembly or association). That was true irrespective of whether the veterans had a message of their own to proclaim.
Perhaps even more to the point is the Supreme Court’s decision in Boy Scouts of America v. Dale, in which it ruled that the Boy Scouts could not be compelled to accept a person who was openly gay because “Dale’s presence in the Boy Scouts would, at the very least, force the organization to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior.” This, of course, was the message of another—a message the Boy Scouts did not wish to facilitate and with which it did not wish to associate. The Boy Scouts were not engaging in independent speech themselves when they accepted someone as a troop leader. Similarly, a vendor does not have to create speech as part of her services to facilitate the message of others through those services.
The rights of speech and assembly work hand in hand, or, as the Supreme Court has phrased it, they are “cognate.” And it is this combination right of expressive association that is under threat in the wedding vendors’ cases: public accommodations laws are being used to force vendors to associate with and facilitate a message of others. That unconstitutionally compels both speech and assembly.
303 Creative reached the right result, and, certainly, artistic vendors can now safely rely on First Amendment protections for their “own” speech. Unfortunately, exactly when vendor services cross the line into speech is anything but clear. A website designer is an easy case, but the recent cases involving cake decorators and flower arrangers present much closer questions. For example, in response to questions during oral argument, counsel for the cake decorator in Masterpiece Cakeshop said a makeup artist did not qualify as an artist, despite her title.
These close distinctions should not matter, because whether the vendor is an artist is not the source of the vendor’s objection to fostering the event with her services. The source is the message of the wedding participants, and that should be the focus. Both artistic and non-artistic vendors with the same objection to that message have the same protections from being forced to facilitate and associate with it. Refusal to serve because of an objection to facilitating their message is not discrimination against the marriage participants’ status or identity. But, if it is deemed to be, forcing any vendor to associate with the ceremony is unconstitutionally compelled speech and assembly.
This article by frequent National Legal Foundation collaborator, Rick Claybrook, first appeared on the Law & Liberty website here and is reprinted with permission.