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**JUNE 30, 2023**
Kuttner on TAP
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**** The Roberts Court's Cynical Use of Free
Speech to Allow Discrimination
If a Colorado web designer can refuse to serve a same-sex couple, why
can't a business owner discriminate against Blacks, Muslims, and Jews?
In many ways, the Supreme Court's ruling upholding the right of a
Colorado web designer to refuse to do business with a same-sex couple is
the most insidious of the Roberts Court's recent string of far-right
decisions overturning protections for minorities. Justice Neil Gorsuch,
writing for a 6-3 Court, framed the case as being entirely about free
speech-in this case the freedom of the web designer, Lorie Smith, not
to tacitly support same-sex marriage.
As Gorsuch wrote in his majority ruling
<[link removed]>,
Smith in fact has not yet even offered the service of designing websites
for weddings, but "she worries that, if she enters the wedding website
business, the State will force her to convey messages inconsistent with
her belief that marriage should be reserved to unions between one man
and one woman." According to Gorsuch, "the First Amendment protects an
individual's right to speak his mind regardless of whether the
government considers his speech sensible and well intentioned or deeply
'misguided.'"
Thus the Colorado statute protecting the rights of sexual minorities to
have access to business services on a nondiscriminatory basis is
unconstitutional. And in similar cases, claims that religious or other
personal principles permit discrimination are presumably
constitutionally protected as a form of free speech.
To say that this is the mother of all slippery slopes would be an
understatement. Suppose my religious principles cause me to view Muslims
as agents of Satan, or Jews as Christ-killers. Suppose serving African
Americans in my restaurant or hotel or barbershop associates me with
people who make me uncomfortable. Under the Gorsuch doctrine, this sort
of discrimination is perfectly permissible, and it opens the floodgates
to other such claims.
At bottom, Gorsuch uses free-speech claims to trump the
public-accommodation protections of the 1964 Civil Rights Act, which
have been repeatedly held to be constitutional. The only reason that
LGBTQ people were not explicitly included in the 1964 act was because
the public and Congress were not yet ready to view gays and lesbians as
people with rights. Women were added to the 1964 legislation at the last
minute by opponents, as a cynical tactic to sink it. The tactic
backfired. Since 1964, as large majorities of Americans (and the Supreme
Court) have accepted same-sex marriage, most states have legislated
Colorado-style protections making the rights of LGBTQ people explicit.
Justice Sotomayor, in dissent, put it well: "When the civil rights and
women's rights movements sought equality in public life, some public
establishments refused. Some even claimed, based on sincere religious
beliefs, constitutional rights to discriminate. The brave Justices who
once sat on this Court decisively rejected those claims." She added,
"The concept of a public accommodation thus embodies a simple, but
powerful, social contract: A business that chooses to sell to the public
assumes a duty to serve the public without unjust discrimination."
The claim that the supposed incursion on the "speech" of someone who
objects to serving a class of people trumps the rights of such people to
receive the same services as others is a tortured construction of free
speech. The Supreme Court, not for the first time, is now at the heart
of the constitutional crisis afflicting this republic. The struggle for
justice will go on.
~ ROBERT KUTTNER
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