The Roberts Court twisted the First Amendment into a tool of discrimination

Last week, the Supreme Court issued a pernicious decision declaring that Colorado’s public accommodations law prohibiting discrimination against gays and lesbians could not be applied to a business engaged in “expressive activity,” such as a wedding website designer who opposes gay marriage. Justice Neil Gorsuch, in his majority opinion, insisted that doing so would “force” the designer to “endorse” gay marriage in violation of her “free speech right” not to act in a manner contrary to her Christian belief that marriage should only be a union of a man and a woman.

The court’s willful failure to distinguish discriminatory conduct from speech is not just a blow to LGBTQ rights and dignity; it also threatens to run roughshod over our modern legal system and undo decades of progress in combating invidious discrimination against historically marginalized Americans.  

Coming the day after the same majority struck down affirmative action, and the same day that it invalidated the Biden administration’s effort to provide student debt relief to 45 million Americans, the Colorado case fits squarely into the Roberts Court’s broader agenda: prioritizing the interests of the powerful, wealthy, white, male, Christian, heterosexual groups to which the majority of the court (today as always) belong over the interests of everyone else. To that end, the court’s decision makes free speech a potential license for businesses and individuals to disregard legal protections for disadvantaged groups — and virtually any other state or federal law that advances a value with which they disagree.

The decision was based on a website designer’s supposed fear of appearing to endorse gay weddings if not permitted to discriminate against them, but it certainly isn’t limited to website designers. Most people providing wedding services — officiants, musicians, photographers, florists, caterers and bartenders — are providing an “expressive” service, so presumably all of them are now entitled to refuse to provide their otherwise publicly available services for a wedding that violates their sincere beliefs.

And there is no reason — certainly none offered in the majority decision — that this license to discriminate is limited to gay couples. Rather, the court’s reasoning (which relied on free speech rights rather than religious freedom) is readily applicable to interracial marriages, interfaith marriages, marriages involving one or more persons of no religious faith, marriages between persons of different nationalities, and so on. It is possible that, in the wake of this decision, in some parts of the country couples from disfavored groups will find it difficult to host a wedding. 

At the same time, nothing in the court’s reasoning limits its impact to weddings. Under Gorsuch’s logic, any public accommodation that includes an “expressive” component — that is, “images, words, symbols, and other modes of expression” — has the right to refuse to serve groups in a manner that violates their sincerely held beliefs. While the court insisted that there are “no doubt innumerable goods and services that no one could argue implicate the First Amendment,” it didn’t bother to identify any.

In fact, there are few human endeavors that don’t rely on “modes of expression,” and there is certainly nothing more inherently “expressive” about website design than the arts, education, technology, law, science or hospitality (including hotels, restaurants and entertainment facilities). In other words, the opinion opens the door for almost any business to argue that the First Amendment entitles them to refuse to serve gays, Blacks, Jews, women, immigrants or any other group, where doing so serves their sincerely held beliefs.

Just as the court’s logic provides no basis to limit its scope to discrimination against gay couples, it likewise provides no basis to limit it to the provision of services. If requiring a business to serve certain groups can violate the business’s free speech rights, there is no reason employers could not make the same argument about laws prohibiting them from discriminating in their hiring and firing decisions.

Indeed, an employer’s argument that “by requiring me to hire women, you are forcing me to endorse the view that women belong in the workplace, contrary to my sincerely held beliefs,” is more plausible than the argument adopted by the court that the Colorado antidiscrimination law “forced” the website designer to “endorse” gay marriage.

For much the same reasons, the court’s analysis invites renewed claims that private clubs have a right to discriminate against any group whom they believe should not be socializing at the same place as their preferred members. Likewise, private schools, which certainly engage in “expressive” activity, have a new opening to argue that they have a right to exclude any group that they believe should not be educated in the same facility as their preferred students, bringing back segregated education. The decision provides no straight line for resegregating public schools, but the continued march of the court’s new “free speech” jurisprudence just might take public schools, and other services funded by taxpayers, out of the picture.

The Supreme Court has rejected arguments that religious freedom exempts persons from paying taxes based on religious objections, but this is yet another argument that could now be resurrected under the guise of free speech. If requiring a business to provide a service to gay persons on the same terms as it provides it to everyone else is the equivalent to requiring the business to endorse gay marriage, requiring taxpayers to support vaccine research (or any other government activity) to which they are morally opposed raises similar “forced endorsement” issues, particularly given the court’s penchant for equating money with speech. 

It’s no coincidence that this alignment of the Supreme Court supermajority with the priorities of the GOP’s extreme right flank comes with the backdrop of financial scandals involving at least two of the justices and the longtime leader of the conservative Federalist Society, Leonard Leo. As an advisor to President Trump, Leo handpicked three of these justices for the very purpose of carrying out this rightwing agenda; he also played a personal role in supporting and funding the cases to strike down affirmative action, narrow legal protection for gays, and invalidate student debt cancellation. Leaving nothing to doubt, he has also orchestrated the provision of gifts and other things of value worth hundreds of thousands of dollars from his dark money funds and two of his billionaire associates to Justice Alito and Justice Thomas, as well as to multiple members of Thomas’s family. 

As President Biden observed last week, “this is not a normal court.”  But it is not enough to identify the problem — the president and Congress need to take immediate action to address the problem. We urgently need federal legislation imposing ethics rules on the nine justices at least as strict as those that already apply to every other federal judge in the country. And to address the immediate emergency of a renegade court dominated by six nakedly partisan justices determined to roll back civil rights and other progress, Congress must enact federal legislation to expand the court.

Ben Clements is the chairman and senior legal advisor of Free Speech For People, a former federal prosecutor and former chief legal counsel to the governor of Massachusetts.