303 Creative Oral Argument: Dialogue on Status vs Message

 Here is a dialogue from the oral argument (pages 124-126) between Justice Barrett and Brian H. Fletcher (in support of the respondents):

JUSTICE BARRETT: Mr. Fletcher, what if you have a gay couple who runs a web design business in a college town, and, you know, a big part of their business is developing websites for student organizations, the environmental organization, like, different rec club leagues, whatever. And then you have a Christian organization or Catholic organization that basically stands for and advocates traditional views of marriage. This is the raison d'etre for the club. They host debates, invite speakers, and they want the standard website that this couple provides in their business, which is, you know, graphics that make it look appealing, kind of an About Us page that describes what they do and what their beliefs are. And let's say that this couple, like 303 Creative, has on the bottom of every page like, you know, "Designed" --"Designed by," you know, "Jack and Michael." Everything this club wants to say is an anathema to this couple.

Do they have to --can you compel that speech? Do they have to publish it?

MR. FLETCHER: I don't think they do, Justice -JUSTICE

BARRETT: Why?

MR. FLETCHER: Because I don't think that's a refusal based on status. JUSTICE BARRETT: Okay. This is my question, that's why I asked it, because I think, here, there's a difference of opinion about whether turning down the same-sex couple simply for purposes of a marriage announcement is a turn-down based on status or message. And it seems to me in my hypothetical that the status of the club is inextricably intertwined with the message they want to speak.

So why is it different?

MR. FLETCHER: For a couple of reasons. I think, first of all, just to start with same --the same-sex marriage context, this Court has recognized that that's a circumstance where status and conduct are inextricably intertwined. In Lawrence and Masterpiece, the Court has said refusing to serve for same-sex marriages is discrimination against same --gays and lesbians because status and conduct is inextricably intertwined.

The public accommodations laws and the anti-discrimination laws generally don't work that way in general. We don't think that the expression of particular views is inextricably intertwined with having a particular religion or being a Democrat or a Republican.

In general, in public accommodations laws, we say, when you discriminate against someone because they want you to print a website or serve an event or cater an event for something that you disagree with, we wouldn't say that that's a status-based refusal. And I think that's correct. I --I don't think -JUSTICE

BARRETT: So this is a carve-out that's applicable just to the same-sex context?

MR. FLETCHER: I think it's a context --it's like the Court's recognition in Bray that a tax on yarmulkes is a tax on Jews. There are certain rare contexts where status and conduct are inextricably intertwined, and I think the Court has rightly recognized that same-sex marriage is one of them.

JUSTICE BARRETT: Thank you.

 

Even if for purposes of state public accommodations law discrimination against same-sex marriage or other sexual conduct is treated as status discrimination (as discrimination against gay persons), does this mean that for purposes of the Free Speech Clause refusal to express a message celebrating same-sex marriage is status-based not message-based? Does speech become conduct only when the speech is about same-sex marriage?

Now think about Free Exercise. Does this underinclusiveness in terms of coverage of the law render this law not neutral or generally applicable? If so, where would this lead us?