1. "[T]he majority reaffirmed that “public accommodations statutes can sweep too broadly when deployed to compel speech” and insisted that “when a state public accommodations law and the Constitution collide, there can be no question which must prevail.”
This was the generally expected result. Contrary to the overheated and extravagant rhetoric in Justice Sonia Sotomayor’s dissent and in much of the press coverage, 303 Creative broke no new ground and coheres comfortably with relevant precedents and noncontroversial judicial doctrines. It is not a case about marriage or about sexual-orientation discrimination; it is a case about compelled speech, that is, about the government telling a person what she must say (if she wants to be permitted to operate a business)."
2. “'All speech,'” Justice David Souter emphasized, “'inherently involves choices of what to say and what to leave unsaid” and an “important manifestation of the principle of free speech is that one who chooses to speak may also decide ‘what not to say.’”"
3."Nothing in the Court’s ruling or Justice Gorsuch’s opinion authorizes discriminatory denials of service not involving compelled speech. Contrary to the dissenters’ charge, the narrow and focused decision does not "'grant a business open to the public a constitutional right to refuse to serve members of a protected class.'”
So, 303 Creative would not protect Jack Phillips if he decided not to sell breakfast croissants to a gay couple. Breakfast croissants are not speech. But the Nebraska First Freedom Act may protect his religious liberty in such a case.
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