The last case of the Supreme Court term this year was provocative: It would allow a graphic designer, Ms. Smith, in a business open to the public, to discriminate against a gay couple regarding their marriage if she had a sincerely held belief that same-sex marriages are morally wrong. Her First Amendment rights would give her the right to refuse them service in contradiction of the state’s public accommodation law which forbids such discrimination. The case is 303 Creative LLC v. Elenis, June 30, 2023. It reversed the Court of Appeals for the 10th Circuit. My thesis is that no rights are absolute, including the Free Speech Clause of the First Amendment. Fundamental rights can be limited if the strict scrutiny test is satisfied: a compelling governmental interest plus means which are necessary for the achievement of that interest. Here, the compelling interest was the equality of customers in a discrimination-free marketplace. The necessary means was the public accommodations statute (the Colorado Anti-Discrimination Act, or CADA), which would prohibit that discrimination. The designer’s position was that she did not discriminate against same-sex couples per se, only if they asked her to produce something that violated her conscience, such as […]
