By Mark V. Tushnet
A few weeks ago, my family went on vacation in Copenhagen, where we ate at several top-of-the-line restaurants. My reaction to the meals? “How incredibly creative of the chef.”
Creativity is in the eye of the beholder. My description echoes the name of the business Creative 303, whose owner Lorie Smith was told by the Colorado antidiscrimination commission that she couldn’t refuse to design web-sites for couples about to enter same-sex marriages (even though she’d never been asked by any such couple to do so). In Creative 303 v. Elenis, the Supreme Court held that Colorado was wrong. Requiring Smith to design such websites, the Court held, violated her rights under the First Amendment’s guarantee of free expression.
Most reporting on the decision has focused on how it licenses businesses to discriminate against LGBTQ+ people. However, the decision itself actually has much broader implications because it relied on the First Amendment’s Free Speech Clause, not its Free Exercise Clause. What drove the outcome—at least as a matter of constitutional analysis—was that the business-owner was engaged in expressive activity (designing websites).
So consider this possibility: A restaurant owner creates (that word again) a menu that he describes as “Cuisine for Christians.” The chef says that each specific dish is inspired by his interpretation of a biblical passage. Creative 303 implies that the chef can’t be charged with discrimination against Jews or Muslims by designing these dishes. The local antidiscrimination commission couldn’t tell the chef to change the name of a dish from “Loaves and Fishes” to “lox and rye bread.”
Designing the dishes, then, is a creative activity protected by the Free Speech Clause. What about selling them? Suppose a Muslim walks into the restaurant, interested in experiencing the chef’s Christian meal. Can the restaurant owner say, “Sorry, I don’t serve your kind?” The question here is whether selling the product is an expressive activity. If it is an expressive activity, the government has to have really strong reasons for regulating it. If it is expressive conduct, then regulation is more easily justified. I’m confident that most judges, even the Supreme Court’s majority, would say that while making the product is expressive activity, selling it is expressive conduct. It’s not clear to me why that should be true, though. The confusion was not helped by the Creative 303 decision.
A different example, with the same analytic structure, clarifies the problem. Switch from discrimination on the basis of religion to discrimination on the basis of race. Now the chef makes dishes to preserve white culture. An African-American comes to the restaurant, but the chef says, “Sorry, I won’t serve you because my message that these foods are preserving white culture would be diluted if people saw Black people eating at the restaurant.” We might say that the restaurant owner’s choice of a business model is his way of expressing himself: His expressive conduct is his expressive activity.
Read for all its worth, Creative 303 might seriously undermine all laws against discrimination by private businesses. Let’s return to our last example. The chef still wishes to preserve white culture, but this time, he doesn’t come up with distinctive recipes. He goes to standard cookbooks and chooses a set of dishes—meatloaf and gravy, green jello with peaches and mini-marshmallows—that he believes reflect white culture. So, the dishes aren’t creative, but the act of assembling them, which we can call “curation,” is. (Of course, at some point in the distant past, the first chef who put peaches and mini-marshmallows in green jello was indeed being creative, though it’s not clear to me how that creativity might get washed away over the centuries.) By curating the menu, this chef is still engaging in expressive activity.
Push the idea of curation a bit, and we get to bookstores. Ordinary booksellers choose the books they offer based on their potential audience. A bookseller could say, “I curate a collection of books for customers who are able to appreciate their qualities, and because I don’t think that people of color have the intellectual capacity to do so, I won’t sell books to them.” Would that be expressive activity?
These issues were obscured by Creative 303. Justice Gorsuch knew that the questions lurked, but he waved his hands at them. In this particular case, everyone conceded that designing a website was an expressive activity, so the Court decided they didn’t have to define the contours of “expressive activity”—yet. That day will come, though.
Some believe that social pressures against overt discrimination are strong enough to prevent restaurants and bookstores like the ones I’ve dreamed up. That may be true in some communities, but there is no guarantee. Others have brought up an escape hatch. Courts can always say, “Sure this application of antidiscrimination law trenches on protected expression, but it’s justified by a compelling state interest in eliminating discrimination.” Though it’s possible judges will take that route, it’s not a real solution. It’s just a cheap way of rejecting Creative 303’s implications for forms of discrimination that individual judges happen to dislike.
Creative 303 has damaged constitutional doctrine about speech and equality. The brunt of its social damage will almost certainly be felt by the LGBTQ+ community.
Mark V. Tushnet is William Nelson Cromwell Professor of Law at Harvard University and the co-author of Free Speech Beyond Words: The Suprising Reach of the First Amendment. In Free Speech Beyond, three acclaimed scholars consider nonrepresentational art, instrumental music, and nonsense: all receive constitutional coverage under an amendment protecting “the freedom of speech,” even though none involves what we typically think of as speech—the use of words to convey meaning. Comprehensive and compelling, this book represents a sustained effort to account, constitutionally, for these modes of “speech.” While it is firmly centered in debates about First Amendment issues, it addresses them in a novel way, showing us how and why speech beyond words should be fundamental to our understanding of the First Amendment.
