The Supreme Court fooled us in 303 Creative — just look at the facts

The Supreme Court’s decision in 303 Creative v Elenis generated much public debate. Few people, however, actually read the decision; even fewer did it more than once. As someone who has tracked the case since its inception in Colorado, I want to illuminate one of the major flaws of the majority’s reasoning: A duty to sell “expressive” products to everyone does not necessarily create compelled speech. Fighting the decision’s consequences requires dispelling this myth.

Writing on behalf of the conservative supermajority, Justice Neil Gorsuch wanted readers to believe that once a business is “expressive,” it follows that it deserves an exemption from nondiscrimination laws. This misleading logic seeks to induce people’s intuitive agreement and suspend their nuanced thinking by appealing to common connotations of expressiveness and speech. But examining the cases where this linkage works helps identify when it utterly fails.

Consider a commercial photographer running a studio open to the public that sells festive family photos for the holidays. Doubtless, as she sets the lighting and positions nervous families, the photographer engages in expressive activity. Now imagine a family that requests to take its photo in the nude. Can the business refuse?

Well, it depends. Significantly, it depends not on classifying photography as expressive or non-expressive (using Gorsuch’s categories). Nor should it depend on the ideological inclination of the judge deciding the matter. Instead, it must be a question of facts: whether the provider photographs nude subjects at all. If she doesn’t, no law could or should force her to start.

This answer shows that the state cannot dictate what the business sells, as opposed to whom it serves. Whether the business is “expressive” matters less: Muslim or Jewish butchers are non-expressive but cannot be forced to sell pork. But the main point is the mirroring idea: Once businesses decide to sell something, be it nude photos or pork, they must sell it to everyone. Therefore, the requirement of equal service does not compel speech unless clients also ask for unusual products not sold to others.

This means that while a business can refuse to photograph nude families, it should not be able to profit, for instance, from serving naked white and Black families while refusing interracial families due to objection to the mixing of the races (decades ago, the court said that much to a BBQ business). So, unlike Hamlet, to be or not to be (expressive) is not the question; what should matter are not arbitrary and ambiguous categories but the specific facts of each case.

Alas, in 303 Creative, the majority took the liberty to disregard such facts.

It first selected a hypothetical case of a business that never sold wedding websites with the leanest factual record. It then repeatedly relied on the parties’ irrelevant stipulation that website design is an “expressive activity” while ignoring a key fact established during the hearing. There, Justice Elena Kagan asked if the business would serve a same-sex couple requesting a website identical to the one it sold their opposite-sex friends. The Alliance Defending Freedom’s lawyer representing the business answered with a clear no, stating that “the announcement of the wedding itself is a concept that [the designer] believes to be false.”

This exchange should have decided the case. It shows the business resists not expressing particular content, like writing “love is love,” but creating its ordinary product and selling it to certain clients merely due to their identity. Such identity-based resistance, however, deprives people of the right to use their dollars with dignity like everyone else and should not be allowed in the marketplace. The views underlying this resistance might be expressed via occasions like the parades discussed among the free speech precedents cited to conceal the radicalism of 303 Creative— the first decision awarding exemptions to businesses selling goods and services to the public.  

But what about the freedom of speech of creative but anti-LGBTQ+ businesspeople, you may ask. The answer is that if you are one of those people and you choose to open your business to the public, you do not need to close it or fear the law. Just do not deliberately add weddings to the services you offer, as the business owner in 303 Creative alleged that she plans to do.  

That Gorsuch relentlessly connected expressiveness with compelled speech should not blind us. Granted, no one wants government policing of thoughts and words, as imagined by George Orwell (whom Gorsuch suggestively mentioned). But the government is far from being Orwellian when it requires businesses, expressive or not, to sell whatever they elect to sell in the open market to everyone. Its duty to its citizens is to protect longstanding civil rights and ensure that the marketplace remains accessible to all, rather than becoming a source of identity-based humiliation.

Hila Keren is the associate dean of research and professor of law at Southwestern Law School. She specializes in issues related to equality in the marketplace and has published and spoken extensively about the battle in 303 Creative.