A colleague asked me a couple of questions following 303 Creative:
Does 303 Creative apply to inter-racial marriage web sites (as opposed to SSM websites)
Well, one answer to the race hypo is it won’t happen today; and if it
does, the market will destroy the business of the web designer who
refuses to create inter-racial wedding sites. At the end of the day, all
viewpoints are protected, even ones we find despicable. And viewpoint
discrimination is categorically prohibited. No need to apply a
compelling interest test.
But it works both ways. A gay web designer can not be compelled to
create a web site proclaiming that homosexuality is “an abomination to
the Lord.” All speakers are protected against laws compelling unwanted
expression of ideas.
Which businesses are expressive businesses? Only religious ones?
303 is not a religious liberty case. It is a free speech case. And
speakers always discriminate among ideas they think are true and those
they think are false. Whenever the government compels speech, it
violates the 1A. Indeed, if a public accommodation law required all
businesses to post a sign over restrooms saying”trans-women are women,”
it would violate 1A even for a non-expressive business, such as a
restaurant or a widget shop. Compelled speech is expressive even if the
business compelled to speak is not!
What you are
looking for in these cases is whether what the government compels is
speech. If the government requires a restaurant to serve food to all
comers, it is not a speech case. If the government requires an artist, a
photographer, a poet, or a writer to create expression he wishes not to
create, it is a compelled speech case. If the government requires all
businesses to post a "Black Lives Matter" sign in their storefront
windows, it is a compelled speech case. Just look for the speech!
303 Creative only applies to free speech. So, if a merchant refuses to supply non-speech goods or services, there will be no free speech claim. Suppose an Omaha restaurant refuses to cater a gay wedding in violation of Omaha's public accommodations law. No free speech claim, but suppose the restaurant's decision is based upon sincerely held religious beliefs forbidding any celebration or facilitation of non-Biblical marriages?
These cases will be very rare; both Jack and Lorie clearly were willing to serve all customers with ordinary goods and services. It was only wedding where they drew the line.
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