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PRELIMINARY PRINT
Volume 600 U. S. Part 1
Pages 570–640
OFFICIAL REPORTS
OF
THE SUPREME COURT
June 30, 2023
Page Proof Pending Publication
REBECCA A. WOMELDORF
reporter of decisions
NOTICE: This preliminary print is subject to formal revision before
the bound volume is published. Users are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington, D.C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.
570 OCTOBER TERM, 2022
Syllabus
303 CREATIVE LLC et al. v. ELENIS et al.
certiorari to the united states court of appeals for
the tenth circuit
No. 21–476. Argued December 5, 2022—Decided June 30, 2023
Lorie Smith wants to expand her graphic design business, 303 Creative
LLC, to include services for couples seeking wedding websites. But Ms.
Smith worries that Colorado will use the Colorado Anti-Discrimination
Act to compel her—in violation of the First Amendment—to create web-
sites celebrating marriages she does not endorse. To clarify her rights,
Ms. Smith fled a lawsuit seeking an injunction to prevent the State
from forcing her to create websites celebrating marriages that defy her
belief that marriage should be reserved to unions between one man and
one woman.
CADA prohibits all “public accommodations” from denying “the full
and equal enjoyment” of its goods and services to any customer based
on his race, creed, disability, sexual orientation, or other statutorily enu-
merated trait. Colo. Rev. Stat. § 24–34–601(2)(a). The law defnes
Page Proof Pending Publication
“public accommodation” broadly to include almost every public-facing
business in the State. § 24–34–601(1). Either state offcials or private
citizens may bring actions to enforce the law. §§ 24–34–306, 24–34–
602(1). And a variety of penalties can follow any violation.
Before the district court, Ms. Smith and the State stipulated to a
number of facts: Ms. Smith is “willing to work with all people regardless
of classifcations such as race, creed, sexual orientation, and gender” and
“will gladly create custom graphics and websites” for clients of any sex-
ual orientation; she will not produce content that “contradicts biblical
truth” regardless of who orders it; Ms. Smith's belief that marriage is a
union between one man and one woman is a sincerely held conviction;
Ms. Smith provides design services that are “expressive” and her “origi-
nal, customized” creations “contribut[e] to the overall message” her
business conveys “through the websites” it creates; the wedding web-
sites she plans to create “will be expressive in nature,” will be “custo-
mized and tailored” through close collaboration with individual couples,
and will “express Ms. Smith's and 303 Creative's message celebrating
and promoting” her view of marriage; viewers of Ms. Smith's websites
“will know that the websites are her original artwork;” and “[t]here are
numerous companies in the State of Colorado and across the nation that
offer custom website design services.”
Cite as: 600 U. S. 570 (2023) 571
Syllabus
Ultimately, the district court held that Ms. Smith was not entitled to
the injunction she sought, and the Tenth Circuit affrmed.
Held: The First Amendment prohibits Colorado from forcing a website
designer to create expressive designs speaking messages with which
the designer disagrees. Pp. 584–603.
(a) The framers designed the Free Speech Clause of the First Amend-
ment to protect the “freedom to think as you will and to speak as you
think.” Boy Scouts of America v. Dale, 530 U. S. 640, 660–661 (inter-
nal quotation marks omitted). The freedom to speak is among our in-
alienable rights. The freedom of thought and speech is “indispensable
to the discovery and spread of political truth.” Whitney v. California,
274 U. S. 357, 375 (Brandeis, J., concurring). For these reasons, “[i]f
there is any fxed star in our constitutional constellation,” West Virginia
Bd. of Ed. v. Barnette, 319 U. S. 624, 642, it is the principle that the
government may not interfere with “an uninhibited marketplace of
ideas,” McCullen v. Coakley, 573 U. S. 464, 476 (internal quotation
marks omitted).
This Court has previously faced cases where governments have
sought to test these foundational principles. In Barnette, the Court
held that the State of West Virginia's efforts to compel schoolchildren
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to salute the Nation's fag and recite the Pledge of Allegiance “invad[ed]
the sphere of intellect and spirit which it is the purpose of the First
Amendment . . . to reserve from all offcial control.” 319 U. S., at 642.
State authorities had “transcend[ed] constitutional limitations on their
powers.” Ibid. In Hurley v. Irish-American Gay, Lesbian and Bisex-
ual Group of Boston, Inc., 515 U. S. 557, the Court held that Massachu-
setts's public accommodations statute could not be used to force veter-
ans organizing a parade in Boston to include a group of gay, lesbian,
and bisexual individuals because the parade was protected speech, and
requiring the veterans to include voices they wished to exclude would
impermissibly require them to “alter the expressive content of their
parade.” Id., at 572–573. And in Boy Scouts of America v. Dale,
when the Boy Scouts sought to exclude assistant scoutmaster James
Dale from membership after learning he was gay, the Court held the
Boy Scouts to be “an expressive association” entitled to First Amend-
ment protection. 530 U. S., at 656. The Court found that forcing the
Scouts to include Mr. Dale would undoubtedly “interfere with [its]
choice not to propound a point of view contrary to its beliefs.” Id.,
at 654.
These cases illustrate that the First Amendment protects an individu-
al's right to speak his mind regardless of whether the government con-
572 303 CREATIVE LLC v. ELENIS
Syllabus
siders his speech sensible and well intentioned or deeply “misguided,”
Hurley, 515 U. S., at 574, and likely to cause “anguish” or “incalculable
grief,” Snyder v. Phelps, 562 U. S. 443, 456. Generally, too, the govern-
ment may not compel a person to speak its own preferred messages.
See Tinker v. Des Moines Independent Community School Dist., 393
U. S. 503, 505. Pp. 584–587.
(b) Applying these principles to the parties' stipulated facts, the
Court agrees with the Tenth Circuit that the wedding websites
Ms. Smith seeks to create qualify as pure speech protected by the First
Amendment under this Court's precedents. Ms. Smith's websites will
express and communicate ideas—namely, those that “celebrate and pro-
mote the couple's wedding and unique love story” and those that “cele-
brat[e] and promot[e]” what Ms. Smith understands to be a marriage.
Speech conveyed over the internet, like all other manner of speech, qual-
ifes for the First Amendment's protections. And the Court agrees
with the Tenth Circuit that the wedding websites Ms. Smith seeks to
create involve her speech, a conclusion supported by the parties' stipula-
tions, including that Ms. Smith intends to produce a fnal story for each
couple using her own words and original artwork. While Ms. Smith's
speech may combine with the couple's in a fnal product, an individual
“does not forfeit constitutional protection simply by combining multifar-
Page Proof Pending Publication
ious voices” in a single communication. Hurley, 515 U. S., at 569.
Ms. Smith seeks to engage in protected First Amendment speech;
Colorado seeks to compel speech she does not wish to provide. As the
Tenth Circuit observed, if Ms. Smith offers wedding websites celebrat-
ing marriages she endorses, the State intends to compel her to create
custom websites celebrating other marriages she does not. 6 F. 4th
1160, 1178. Colorado seeks to compel this speech in order to “excis[e]
certain ideas or viewpoints from the public dialogue.” Turner Broad-
casting System, Inc. v. FCC, 512 U. S. 633, 642. Indeed, the Tenth Cir-
cuit recognized that the coercive “[e]liminati[on]” of dissenting ideas
about marriage constitutes Colorado's “very purpose” in seeking to
apply its law to Ms. Smith. 6 F. 4th, at 1178. But while the Tenth
Circuit thought that Colorado could compel speech from Ms. Smith con-
sistent with the Constitution, this Court's First Amendment precedents
teach otherwise. In Hurley, Dale, and Barnette, the Court found that
governments impermissibly compelled speech in violation of the First
Amendment when they tried to force speakers to accept a message with
which they disagreed. Here, Colorado seeks to put Ms. Smith to a simi-
lar choice. If she wishes to speak, she must either speak as the State
demands or face sanctions for expressing her own beliefs, sanctions that
may include compulsory participation in “remedial . . . training,” fling
periodic compliance reports, and paying monetary fnes. That is an im-
Cite as: 600 U. S. 570 (2023) 573
Syllabus
permissible abridgment of the First Amendment's right to speak freely.
Hurley, 515 U. S., at 574.
Under Colorado's logic, the government may compel anyone who
speaks for pay on a given topic to accept all commissions on that same
topic—no matter the message—if the topic somehow implicates a cus-
tomer's statutorily protected trait. 6 F. 4th, at 1199 (Tymkovich, C. J.,
dissenting). Taken seriously, that principle would allow the govern-
ment to force all manner of artists, speechwriters, and others whose
services involve speech to speak what they do not believe on pain of
penalty. The Court's precedents recognize the First Amendment toler-
ates none of that. To be sure, public accommodations laws play a vital
role in realizing the civil rights of all Americans, and governments in
this country have a “compelling interest” in eliminating discrimination
in places of public accommodation. Roberts v. United States Jaycees,
468 U. S. 609, 628. This Court has recognized that public accommoda-
tions laws “vindicate the deprivation of personal dignity that surely ac-
companies denials of equal access to public establishments.” Heart of
Atlanta Motel, Inc. v. United States, 379 U. S. 241, 250 (internal quota-
tion marks omitted). Over time, governments in this country have ex-
panded public accommodations laws in notable ways. Statutes like Col-
orado's grow from nondiscrimination rules the common law sometimes
Page Proof Pending Publication
imposed on common carriers and places of traditional public accommoda-
tion like hotels and restaurants. Dale, 530 U. S., at 656–657. Often,
these enterprises exercised something like monopoly power or hosted
or transported others or their belongings. See, e. g., Liverpool & Great
Western Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 437. Importantly,
States have also expanded their laws to prohibit more forms of discrimi-
nation. Today, for example, approximately half the States have laws
like Colorado's that expressly prohibit discrimination on the basis of
sexual orientation. The Court has recognized this is “unexceptional.”
Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n, 584 U. S.
–––, –––. States may “protect gay persons, just as [they] can protect
other classes of individuals, in acquiring whatever products and services
they choose on the same terms and conditions as are offered to other
members of the public. And there are no doubt innumerable goods and
services that no one could argue implicate the First Amendment.”
Ibid. At the same time, this Court has also long recognized that no
public accommodations law is immune from the demands of the Constitu-
tion. In particular, this Court has held, public accommodations statutes
can sweep too broadly when deployed to compel speech. See, e. g., Hur-
ley, 515 U. S., at 571, 578; Dale, 530 U. S., at 659. As in those cases,
when Colorado's public accommodations law and the Constitution collide,
there can be no question which must prevail. U. S. Const. Art. VI, § 2.
574 303 CREATIVE LLC v. ELENIS
Syllabus
As the Tenth Circuit saw it, Colorado has a compelling interest in
ensuring “equal access to publicly available goods and services,” and no
option short of coercing speech from Ms. Smith can satisfy that interest
because she plans to offer “unique services” that are, “by defnition,
unavailable elsewhere.” 6 F. 4th, at 1179–1180 (internal quotation
marks omitted). In some sense, of course, her voice is unique; so is
everyone's. But that hardly means a State may coopt an individual's
voice for its own purposes. The speaker in Hurley had an “enviable”
outlet for speech, and the Boy Scouts in Dale offered an arguably unique
experience, but in both cases this Court held that the State could not
use its public accommodations statute to deny a speaker the right “to
choose the content of his own message.” Hurley, 515 U. S., at 573; see
Dale, 530 U. S., at 650–656. A rule otherwise would conscript any
unique voice to disseminate the government's preferred messages in vio-
lation of the First Amendment. Pp. 587–592.
(c) Colorado now seems to acknowledge that the First Amendment
does prohibit it from coercing Ms. Smith to create websites expressing
any message with which she disagrees. Alternatively, Colorado con-
tends, Ms. Smith must simply provide the same commercial product to
all, which she can do by repurposing websites celebrating marriages she
does endorse for marriages she does not. Colorado's theory rests on a
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belief that this case does not implicate pure speech, but rather the sale
of an ordinary commercial product, and that any burden on Ms. Smith's
speech is purely “incidental.” On the State's telling, then, speech more
or less vanishes from the picture—and, with it, any need for First
Amendment scrutiny. Colorado's alternative theory, however, does not
sit easily with its stipulation that Ms. Smith does not seek to sell an
ordinary commercial good but intends to create “customized and tai-
lored” expressive speech for each couple “to celebrate and promote the
couple's wedding and unique love story.” Colorado seeks to compel just
the sort of speech that it tacitly concedes lies beyond its reach.
The State stresses that Ms. Smith offers her speech for pay and does
so through 303 Creative LLC, a company in which she is “the sole
member-owner.” But many of the world's great works of literature and
art were created with an expectation of compensation. And speakers
do not shed their First Amendment protections by employing the corpo-
rate form to disseminate their speech. Colorado urges the Court to
look at the reason Ms. Smith refuses to offer the speech it seeks to
compel, and it claims that the reason is that she objects to the “protected
characteristics” of certain customers. But the parties' stipulations
state, to the contrary, that Ms. Smith will gladly conduct business with
those having protected characteristics so long as the custom graphics
Cite as: 600 U. S. 570 (2023) 575
Syllabus
and websites she is asked to create do not violate her beliefs.
Ms. Smith stresses that she does not create expressions that defy any
of her beliefs for any customer, whether that involves encouraging vio-
lence, demeaning another person, or promoting views inconsistent with
her religious commitments.
The First Amendment's protections belong to all, not just to speakers
whose motives the government fnds worthy. In this case, Colorado
seeks to force an individual to speak in ways that align with its views
but defy her conscience about a matter of major signifcance. In the
past, other States in Barnette, Hurley, and Dale have similarly tested
the First Amendment's boundaries by seeking to compel speech they
thought vital at the time. But abiding the Constitution's commitment
to the freedom of speech means all will encounter ideas that are “mis-
guided, or even hurtful.” Hurley, 515 U. S., at 574. Consistent with
the First Amendment, the Nation's answer is tolerance, not coercion.
The First Amendment envisions the United States as a rich and complex
place where all persons are free to think and speak as they wish, not as
the government demands. Colorado cannot deny that promise consist-
ent with the First Amendment. Pp. 593–596, 602–603.
6 F. 4th 1160, reversed.
Page Proof
Gorsuch, J., Pending
delivered the Publication
opinion of the Court, in which Roberts,
C. J., and Thomas, Alito, Kavanaugh, and Barrett, JJ., joined. Soto-
mayor, J., fled a dissenting opinion, in which Kagan and Jackson, JJ.,
joined, post, p. 603.
Kristen K. Waggoner argued the cause for petitioners.
With her on the briefs were John J. Bursch, Erin M. Hawley,
David A. Cortman, Jonathan A. Scruggs, Katherine L. An-
derson, and Jacob P. Warner.
Eric R. Olson, Solicitor General of Colorado, argued the
cause for respondents. With him on the brief were Philip
J. Weiser, Attorney General of Colorado, Isabel Broer, Abi-
gail M. Hinchcliff, Bianca E. Miyata, Vincent E. Morscher,
Helen Norton, and Danny Rheiner.
Deputy Solicitor General Fletcher argued the cause for
the United States as amicus curiae urging affrmance.
With him on the brief were Solicitor General Prelogar, As-
sistant Attorney General Clarke, Principal Deputy Assist-
576 303 CREATIVE LLC v. ELENIS
Counsel
ant Attorney General Boynton, Colleen E. Roh Sinzdak,
Elizabeth Parr Hecker, Teresa Kwong, and Michael S.
Raab.*
*Briefs of amici curiae urging reversal were fled for the State of Ari-
zona et al. by Mark Brnovich, Attorney General of Arizona, Brunn W.
Roysden III, Solicitor General, Michael Catlett, Deputy Solicitor General,
and Kate B. Sawyer, Assistant Solicitor General, by Douglas J. Peterson,
Attorney General of Nebraska, David T. Bydalek, Deputy Attorney Gen-
eral, and James A. Campbell, Solicitor General, and by the Attorneys Gen-
eral for their respective States as follows: Steve Marshall of Alabama,
Treg R. Taylor of Alaska, Leslie Rutledge of Arkansas, Christopher M.
Carr of Georgia, Lawrence G. Wasden of Idaho, Theodore E. Rokita of
Indiana, Derek Schmidt of Kansas, Daniel Cameron of Kentucky, Jeff
Landry of Louisiana, Lynn Fitch of Mississippi, Eric S. Schmitt of Mis-
souri, Austin Knudsen of Montana, Dave Yost of Ohio, John M. O'Connor
of Oklahoma, Alan Wilson of South Carolina, Herbert H. Slatery III of
Tennessee, Sean D. Reyes of Utah, and Patrick Morrisey of West Virginia;
for the Alabama Center for Law and Liberty by Matthew J. Clark; for the
Association of Certifed Biblical Counselors Inc. by Michael S. Overing
Page Proof Pending Publication
and Edward C. Wilde; for the Becket Fund for Religious Liberty by Eric
C. Rassbach and William J. Haun; for the C12 Group et al. by Timothy J.
Newton; for the Catholic League for Religious and Civil Rights by Jona-
than P. Lienhard and Andrew D. Watkins; for the Center for Religious
Expression by Nathan W. Kellum; for the Christian Family Coalition Flor-
ida, Inc., by Dennis Grossman; for the Christian Legal Society et al. by
Walter M. Weber and Kimberlee Wood Colby; for the Church of Jesus
Christ of Latter-day Saints et al. by Alexander Dushku and R. Shawn
Gunnarson; for Claremont Institute's Center for Constitutional Jurispru-
dence by John C. Eastman and Anthony T. Caso; for Colorado Legislators
by William Wagner; for Concerned Women for America by Steven W. Fit-
schen; for the Council for Christian Colleges and Universities et al. by
Gene C. Schaerr, Erik S. Jaffe, H. Christopher Bartolomucci, Hannah C.
Smith, and Kathryn E. Tarbert; for the Ethics and Public Policy Center
et al. by Thomas Brejcha, Jeffrey M. Trissell, Charles S. LiMandri, and
Paul M. Jonna; for First Amendment Scholars by Kenneth C. Daines; for
the Freedom and Justice Foundation by David C. McGrail; for the Insti-
tute for Faith and Family by Deborah J. Dewart and Tami Fitzgerald; for
the Jewish Coalition for Religious Liberty by Josh Blackman and Howard
Slugh; for Liberty Counsel by Horatio G. Mihet, Roger K. Gannam, Ma-
thew D. Staver, and Anita L. Staver; for the Life Legal Defense Founda-
tion et al. by Nikolas T. Nikas and Catherine W. Short; for the Mountain
Cite as: 600 U. S. 570 (2023) 577
Opinion of the Court
Justice Gorsuch delivered the opinion of the Court.
Like many States, Colorado has a law forbidding busi-
nesses from engaging in discrimination when they sell goods
States Legal Foundation et al. by William E. Trachman, Braden Boucek,
and Kimberly Hermann; for Multimedia Production Professionals by John
C. Sullivan; for the National Association of Evangelicals et al. by Freder-
ick W. Claybrook, Jr., Mr. Fitschen, and James A. Davids; for Scholars of
Family and Sexuality by Dean R. Broyles; for the Thomas More Law
Center by Erin Elizabeth Mersino and Richard Thompson; for Tyndale
House Publishers et al. by Christopher E. Mills; for the United States
Conference of Catholic Bishops et al. by Eric N. Kniffn; for United States
Senators et al. by J. Michael Connolly; for Walk for Life West Coast by
Samuel D. Green and Renee K. Carlson; for Young America's Foundation
by David H. Thompson and John D. Ohlendorf; for Dale Carpenter et al.
by Eugene Volokh, Mr. Carpenter, Ilya Shapiro, all pro se, Theodore H.
Frank, and Anna St. John; for Robert P. George by Edward M. Wenger;
for Christopher R. Green by Mr. Green, pro se, Randall Wenger and Jer-
emy Samek; for Mark Janus et al. by Jeffrey M. Schwab and M. E. Buck
Dougherty III; for Aaron Klein et al. by Kelly J. Shackelford, Jeffrey C.
Page Proof Pending Publication
Mateer, David J. Hacker, Stephanie N. Taub, and Herbert G. Grey; for
Adam J. MacLeod by Jeffrey A. Shafer; and for 15 Family Policy Organiza-
tions by David French.
Briefs of amici curiae urging affrmance were fled for the State of
Massachusetts et al. by Maura Healey, Attorney General of Massachu-
setts, Elizabeth N. Dewar, State Solicitor, and Abigail B. Taylor and
Adam M. Cambier, Assistant Attorneys General, and by the Attorneys
General of their respective jurisdictions as follows: Rob Bonta of Califor-
nia, William Tong of Connecticut, Kathleen Jennings of Delaware, Karl
A. Racine of the District of Columbia, Holly T. Shikada of Hawaii, Kwame
Raoul of Illinois, Aaron M. Frey of Maine, Brian E. Frosh of Maryland,
Dana Nessel of Michigan, Keith Ellison of Minnesota, Aaron D. Ford of
Nevada, Matthew J. Platkin of New Jersey, Hector Balderas of New Mex-
ico, Letitia James of New York, Joshua H. Stein of North Carolina, Ellen
F. Rosenblum of Oregon, Josh Shapiro of Pennsylvania, Peter F. Neronha
of Rhode Island, Susanne R. Young of Vermont, Robert W. Ferguson of
Washington, and Joshua L. Kaul of Wisconsin; for the Adventist Forum
et al. by Juan O. Perla and Hermann Ferré; for the American Bar Associ-
ation by Donald B. Verrilli, Jr., Ginger D. Anders, and Deborah Enix-
Ross; for the American Civil Liberties Union et al. by David D. Cole,
Mark Silverstein, Jennesa Calvo-Friedman, James D. Esseks, Brian
Hauss, Louise Melling, Rose Saxe, and Ria Tabacco Mar; for the Ameri-
578 303 CREATIVE LLC v. ELENIS
Opinion of the Court
and services to the public. Laws along these lines have
done much to secure the civil rights of all Americans. But
in this particular case Colorado does not just seek to ensure
the sale of goods or services on equal terms. It seeks to use
can Psychological Association et al. by Tassity S. Johnson, Urja Mittal,
Deanne M. Ottaviano, and Nathalie Gilfoyle; for First Amendment Schol-
ars by Elizabeth B. Wydra, Brianne J. Gorod, and David H. Gans; for
First Amendment Scholars by Michael R. Dreeben, Meaghan VerGow, and
Melissa C. Cassel; for Former U. S. Rep. Anthony Coelho et al. by Sanford
Jay Rosen and Michael S. Nunez; for the Freedom From Religion Founda-
tion et al. by Patrick Elliott; for GLBTQ Legal Advocates & Defenders
et al. by Mary L. Bonauto, Gary D. Buseck, Chris Erchull, Jennifer C.
Pizer, Shannon Minter, and Christopher F. Stoll; for the Lawyers' Com-
mittee for Civil Rights Under Law et al. by Ethan H. Townsend, Sarah
P. Hogarth, Damon Hewitt, Jon Greenbaum, Dariely Rodriguez, and Ben-
jamin F. Aiken; for Local Governments et al. by Sara J. Eisenberg, Julie
Wilensky, Anne L. Morgan, Christopher D. Balch, Beth Cate, David
Hughes, G. Nicholas Herman, Myriam Zreczny Kasper, Christopher J.
Caso, Kristin M. Bronson, Robert E. Hornik, Jr., Barry N. Handwerger,
Page Proof Pending Publication
Michael N. Feuer, Sylvia O. Hinds-Radix, Leslie J. Girard, Lyndsey M.
Olson, Mark Barber, and James R. Williams; for the Modern Military
Association of America et al. by Michael E. Bern and Peter Perkowski;
for the NAACP Legal Defense & Educational Fund, Inc., by Janai S.
Nelson, Samuel Spital, Georgina Yeomans, and Antonio L. Ingram II;
for the National League of Cities et al. by Aileen M. McGrath and Pratik
A. Shah; for the National Women's Law Center et al. by Megan L. Rodg-
ers, Fatima Goss Graves, Emily J. Martin, and Sunu P. Chandy; for Pub-
lic Accommodations Law Scholars by Joshua Matz, Raymond P. Tolen-
tino, and Carmen Iguina González; for Public Citizen by Scott L. Nelson,
Allison M. Zieve, and Nandan M. Joshi; for the Tanenbaum Center for
Interreligious Understanding by Robert J. Ward; for the Western Jurisdic-
tion of the United Methodist Church et al. by Roy T. Englert, Jr., Jeffrey
S. Trachtman, Tobias B. Jacoby, and Jason M. Moff; for Ilan H. Meyer,
Ph.D., et al. by Stephen B. Kinnaird; for Tobias B. Wolff by Mr. Wolff,
pro se and Eric Alan Stone; for 27+ Lay Roman Catholics by James K.
Riley, pro se; for 30 Religious, Civil Rights, and Grassroots Organizations
by Jessica Ellsworth; and for 137 Members of Congress by Peter T.
Barbur.
Briefs of amici curiae were fled for Americans for Prosperity Founda-
tion by Cynthia Fleming Crawford; for CatholicVote.org Education Fund
by Scott W. Gaylord; for Creative Professionals et al. by Miles E. Cole-
Cite as: 600 U. S. 570 (2023) 579
Opinion of the Court
its law to compel an individual to create speech she does not
believe. The question we face is whether that course vio-
lates the Free Speech Clause of the First Amendment.
I
A
Through her business, 303 Creative LLC, Lorie Smith of-
fers website and graphic design, marketing advice, and social
media management services. Recently, she decided to ex-
pand her offerings to include services for couples seeking
websites for their weddings. As she envisions it, her web-
sites will provide couples with text, graphic arts, and videos
to “celebrate” and “conve[y]” the “details” of their “unique
love story.” App. to Pet. for Cert. 182a, 187a, 198a. The
websites will discuss how the couple met, explain their back-
grounds, families, and future plans, and provide information
about their upcoming wedding. All of the text and graphics
Page Proof Pending Publication
on these websites will be “original,” “customized,” and “tai-
lored” creations. Id., at 187a. The websites will be “ex-
pressive in nature,” designed “to communicate a particular
message.” Id., at 181a. Viewers will know, too, “that the
websites are [Ms. Smith's] original artwork,” for the name of
the company she owns and operates by herself will be dis-
played on every one. Id., at 187a.
man; for Family Research Council by Jonathan R. Whitehead, Michael
K. Whitehead, and Travis Weber; for Law and Economics Scholars by Sean
P. Gates and Andrew C. Nichols; for the Lonang Institute by Kerry Lee
Morgan and Randall A. Pentiuk; for the New York State Bar Association
by Sherry Levin Wallach, Christopher R. Riano, Jacqueline J. Drohan,
and Robert S. Rosborough IV; for Public Advocate of the United States et
al. by William J. Olson, Jeremiah L. Morgan, Phillip L. Jauregui, Gary
G. Kreep, Joseph W. Miller, J. Mark Brewer, and Patrick McSweeney; for
Scholars of Behavioral Science et al. by Josephine K. Petrick, Adam W.
Hofmann, and David C. Casarrubias; for Website and Graphic Designers
by William L. Esser IV and Nicholas H. Lee; for David Boyle by Mr.
Boyle, pro se; and for Kent Greenfeld by Daniel A. Rubens.
580 303 CREATIVE LLC v. ELENIS
Opinion of the Court
While Ms. Smith has laid the groundwork for her new ven-
ture, she has yet to carry out her plans. She worries that,
if she does so, Colorado will force her to express views with
which she disagrees. Ms. Smith provides her website and
graphic services to customers regardless of their race, creed,
sex, or sexual orientation. Id., at 184a. But she has never
created expressions that contradict her own views for any-
one—whether that means generating works that encourage
violence, demean another person, or defy her religious be-
liefs by, say, promoting atheism. See ibid.; see also Tr. of
Oral Arg. 19–20. Ms. Smith does not wish to do otherwise
now, but she worries Colorado has different plans. Specif-
cally, she worries that, if she enters the wedding website
business, the State will force her to convey messages incon-
sistent with her belief that marriage should be reserved to
unions between one man and one woman. App. to Pet. for
Cert. 177a–190a. Ms. Smith acknowledges that her views
about marriage may not be popular in all quarters. But, she
Page Proof Pending Publication
asserts, the First Amendment's Free Speech Clause protects
her from being compelled to speak what she does not believe.
The Constitution, she insists, protects her right to differ.
B
To clarify her rights, Ms. Smith fled a lawsuit in federal
district court. In that suit, she sought an injunction to pre-
vent the State from forcing her to create wedding websites
celebrating marriages that defy her beliefs. App. 303–305.
To secure relief, Ms. Smith frst had to establish her standing
to sue. That required her to show “a credible threat” ex-
isted that Colorado would, in fact, seek to compel speech
from her that she did not wish to produce. Susan B. An-
thony List v. Driehaus, 573 U. S. 149, 159 (2014).
Toward that end, Ms. Smith began by directing the court
to the Colorado Anti-Discrimination Act (CADA). That law
defnes a “public accommodation” broadly to include almost
Cite as: 600 U. S. 570 (2023) 581
Opinion of the Court
every public-facing business in the State. Colo. Rev. Stat.
§ 24–34–601(1) (2022). In what some call its “Accommoda-
tion Clause,” the law prohibits a public accommodation from
denying “the full and equal enjoyment” of its goods and serv-
ices to any customer based on his race, creed, disability, sex-
ual orientation, or other statutorily enumerated trait. § 24–
34–601(2)(a). Either state offcials or private citizens may
bring actions to enforce the law. §§ 24–34– 306, 24–34–
602(1). And a variety of penalties can follow. Courts can
order fines up to $500 per violation. § 24–34–602(1)(a).
The Colorado Commission on Civil Rights can issue cease-
and-desist orders, § 24–34–306(9), and require violators to
take various other “affirmative action[s],” §§ 24–34–605,
24–34–306(9). In the past, these have included participation
in mandatory educational programs and the submission of
ongoing compliance reports to state offcials. See Master-
piece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n, 584
U. S. –––, ––– (2018).1
Page Proof Pending Publication
In her lawsuit, Ms. Smith alleged that, if she enters the
wedding website business to celebrate marriages she does
endorse, she faces a credible threat that Colorado will seek
to use CADA to compel her to create websites celebrat-
ing marriages she does not endorse. 6 F. 4th 1160, 1173–
1174 (CA10 2021). As evidence, Ms. Smith pointed to Colo-
1
In addition to the Accommodation Clause, CADA contains a “Com-
munication Clause” that prohibits a public accommodation from “publish-
[ing] . . . any written . . . communication” indicating that a person will be
denied “the full and equal enjoyment” of services or that he will be
“unwelcome, objectionable, unacceptable, or undesirable” based on a pro-
tected classifcation. Colo. Rev. Stat. § 24–34–601(2)(a) (2022). The Com-
munication Clause, Ms. Smith notes, prohibits any speech inconsistent
with the Accommodation Clause. Because Colorado concedes that its
authority to apply the Communication Clause to Ms. Smith stands or falls
with its authority to apply the Accommodation Clause, see Brief for
Respondents 44– 45, we focus our attention on the Accommodation
Clause.
582 303 CREATIVE LLC v. ELENIS
Opinion of the Court
rado's record of past enforcement actions under CADA,
including one that worked its way to this Court fve years
ago. See Masterpiece Cakeshop, 584 U. S., at –––; see also
App. 25–155 (discussing Colorado's other past enforcement
actions).
To facilitate the district court's resolution of the merits of
her case, Ms. Smith and the State stipulated to a number
of facts:
• Ms. Smith is “willing to work with all people regard-
less of classifcations such as race, creed, sexual orien-
tation, and gender,” and she “will gladly create custom
graphics and websites” for clients of any sexual orien-
tation. App. to Pet. for Cert. 184a.
• She will not produce content that “contradicts biblical
truth” regardless of who orders it. Ibid.
• Her belief that marriage is a union between one man
and one woman is a sincerely held religious conviction.
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Id., at 179a.
• All of the graphic and website design services
Ms. Smith provides are “expressive.” Id., at 181a.
• The websites and graphics Ms. Smith designs are
“original, customized” creations that “contribut[e] to
the overall messages” her business conveys “through
the websites” it creates. Id., at 181a–182a.
• Just like the other services she provides, the wedding
websites Ms. Smith plans to create “will be expressive
in nature.” Id., at 187a.
• Those wedding websites will be “customized and tai-
lored” through close collaboration with individual cou-
ples, and they will “express Ms. Smith's and 303 Cre-
ative's message celebrating and promoting” her view
of marriage. Id., at 186a–187a.
• Viewers of Ms. Smith's websites “will know that the
websites are [Ms. Smith's and 303 Creative's] original
artwork.” Id., at 187a.
Cite as: 600 U. S. 570 (2023) 583
Opinion of the Court
• To the extent Ms. Smith may not be able to provide
certain services to a potential customer, “[t]here are
numerous companies in the State of Colorado and
across the nation that offer custom website design
services.” Id., at 190a.
C
Ultimately, the district court ruled against Ms. Smith.
405 F. Supp. 3d 907, 912 (Colo. 2019). So did the Tenth Cir-
cuit. 6 F. 4th, at 1168. For its part, the Tenth Circuit held
that Ms. Smith had standing to sue. In that court's judg-
ment, she had established a credible threat that, if she fol-
lows through on her plans to offer wedding website services,
Colorado will invoke CADA to force her to create speech
she does not believe or endorse. Id., at 1172–1175. The
court pointed to the fact that “Colorado has a history of past
enforcement against nearly identical conduct—i. e., Master-
Page Proof Pending Publication
piece Cakeshop”; that anyone in the State may fle a com-
plaint against Ms. Smith and initiate “a potentially burden-
some administrative hearing” process; and that “Colorado
[has] decline[d] to disavow future enforcement” proceedings
against her. Id., at 1174. Before us, no party challenges
these conclusions.
Turning to the merits, however, the Tenth Circuit held
that Ms. Smith was not entitled to the injunction she sought.
The court acknowledged that Ms. Smith's planned wedding
websites qualify as “pure speech” protected by the First
Amendment. Id., at 1176. As a result, the court reasoned,
Colorado had to satisfy “strict scrutiny” before compelling
speech from her that she did not wish to create. Id., at 1178.
Under that standard, the court continued, the State had to
show both that forcing Ms. Smith to create speech would
serve a compelling governmental interest and that no less
restrictive alternative exists to secure that interest. Ibid.
Ultimately, a divided panel concluded that the State had car-
ried these burdens. As the majority saw it, Colorado has
584 303 CREATIVE LLC v. ELENIS
Opinion of the Court
a compelling interest in ensuring “equal access to publicly
available goods and services,” and no option short of coercing
speech from Ms. Smith can satisfy that interest because she
plans to offer “unique services” that are, “by defnition, un-
available elsewhere.” Id., at 1179–1180 (internal quotation
marks omitted).
Chief Judge Tymkovich dissented. He observed that “en-
suring access to a particular person's” voice, expression, or
artistic talent has never qualifed as “a compelling state in-
terest” under this Court's precedents. Id., at 1203. Nor,
he submitted, should courts depart from those precedents
now. “Taken to its logical end,” Chief Judge Tymkovich
warned, his colleagues' approach would permit the govern-
ment to “regulate the messages communicated by all art-
ists”—a result he called “unprecedented.” Id., at 1204.
We granted certiorari to review the Tenth Circuit's dispo-
sition. 595 U. S. ––– (2022).
Page Proof Pending
II Publication
The framers designed the Free Speech Clause of the First
Amendment to protect the “freedom to think as you will and
to speak as you think.” Boy Scouts of America v. Dale, 530
U. S. 640, 660–661 (2000) (internal quotation marks omitted).
They did so because they saw the freedom of speech “both
as an end and as a means.” Whitney v. California, 274 U. S.
357, 375 (1927) (Brandeis, J., concurring); see also 12 The Pa-
pers of James Madison 193–194 (C. Hobson & R. Rutland eds.
1979). An end because the freedom to think and speak is
among our inalienable human rights. See, e. g., 4 Annals of
Cong. 934 (1794) (Rep. Madison). A means because the free-
dom of thought and speech is “indispensable to the discovery
and spread of political truth.” Whitney, 274 U. S., at 375
(Brandeis, J., concurring). By allowing all views to fourish,
the framers understood, we may test and improve our own
thinking both as individuals and as a Nation. For all these
reasons, “[i]f there is any fxed star in our constitutional con-
Cite as: 600 U. S. 570 (2023) 585
Opinion of the Court
stellation,” West Virginia Bd. of Ed. v. Barnette, 319 U. S.
624, 642 (1943), it is the principle that the government may
not interfere with “an uninhibited marketplace of ideas,” Mc-
Cullen v. Coakley, 573 U. S. 464, 476 (2014) (internal quota-
tion marks omitted).
From time to time, governments in this country have
sought to test these foundational principles. In Barnette,
for example, the Court faced an effort by the State of West
Virginia to force schoolchildren to salute the Nation's fag
and recite the Pledge of Allegiance. If the students refused,
the State threatened to expel them and fne or jail their par-
ents. Some families objected on the ground that the State
sought to compel their children to express views at odds with
their faith as Jehovah's Witnesses. When the dispute ar-
rived here, this Court offered a frm response. In seeking
to compel students to salute the fag and recite a pledge, the
Court held, state authorities had “transcend[ed] consti-
Page Proof Pending Publication
tutional limitations on their powers.” 319 U. S., at 642.
Their dictates “invade[d] the sphere of intellect and spirit
which it is the purpose of the First Amendment . . . to re-
serve from all offcial control.” Ibid.
A similar story unfolded in Hurley v. Irish-American Gay,
Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557
(1995). There, veterans organizing a St. Patrick's Day pa-
rade in Boston refused to include a group of gay, lesbian, and
bisexual individuals in their event. The group argued that
Massachusetts's public accommodations statute entitled it to
participate in the parade as a matter of law. Id., at 560–561.
Lower courts agreed. Id., at 561–566. But this Court re-
versed. Id., at 581. Whatever state law may demand, this
Court explained, the parade was constitutionally protected
speech and requiring the veterans to include voices they
wished to exclude would impermissibly require them to
“alter the expressive content of their parade.” Id., at 572–
573. The veterans' choice of what to say (and not say) might
have been unpopular, but they had a First Amendment right
586 303 CREATIVE LLC v. ELENIS
Opinion of the Court
to present their message undiluted by views they did not
share.
Then there is Boy Scouts of America v. Dale. In that
case, the Boy Scouts excluded James Dale, an assistant
scoutmaster, from membership after learning he was gay.
Mr. Dale argued that New Jersey's public accommodations
law required the Scouts to reinstate him. 530 U. S., at 644–
645. The New Jersey Supreme Court sided with Mr. Dale,
id., at 646–647, but again this Court reversed, id., at 661.
The decision to exclude Mr. Dale may not have implicated
pure speech, but this Court held that the Boy Scouts “is an
expressive association” entitled to First Amendment protec-
tion. Id., at 656. And, the Court found, forcing the Scouts
to include Mr. Dale would “interfere with [its] choice not to
propound a point of view contrary to its beliefs.” Id., at 654.
As these cases illustrate, the First Amendment protects
an individual's right to speak his mind regardless of whether
Page Proof Pending Publication
the government considers his speech sensible and well inten-
tioned or deeply “misguided,” Hurley, 515 U. S., at 574, and
likely to cause “anguish” or “incalculable grief,” Snyder v.
Phelps, 562 U. S. 443, 456 (2011). Equally, the First Amend-
ment protects acts of expressive association. See, e. g.,
Dale, 530 U. S., at 647–656; Hurley, 515 U. S., at 568–570, 579.
Generally, too, the government may not compel a person to
speak its own preferred messages. See Tinker v. Des
Moines Independent Community School Dist., 393 U. S. 503,
505–506 (1969); see also, e. g., Miami Herald Publishing Co.
v. Tornillo, 418 U. S. 241, 256 (1974); Wooley v. Maynard, 430
U. S. 705, 714 (1977); National Institute of Family and Life
Advocates v. Becerra, 585 U. S. –––, ––– (2018) (NIFLA).
Nor does it matter whether the government seeks to compel
a person to speak its message when he would prefer to re-
main silent or to force an individual to include other ideas
with his own speech that he would prefer not to include.
See Hurley, 515 U. S., at 568–570, 576; see also Rumsfeld v.
Forum for Academic & Institutional Rights, Inc., 547 U. S.
Cite as: 600 U. S. 570 (2023) 587
Opinion of the Court
47, 63–64 (2006) (FAIR) (discussing cases). All that offends
the First Amendment just the same.
III
Applying these principles to this case, we align ourselves
with much of the Tenth Circuit's analysis. The Tenth Cir-
cuit held that the wedding websites Ms. Smith seeks to cre-
ate qualify as “pure speech” under this Court's precedents.
6 F. 4th, at 1176. We agree. It is a conclusion that fows
directly from the parties' stipulations. They have stipulated
that Ms. Smith's websites promise to contain “images, words,
symbols, and other modes of expression.” App. to Pet.
for Cert. 181a. They have stipulated that every website will
be her “original, customized” creation. Id., at 181a–182a.
And they have stipulated that Ms. Smith will create these
websites to communicate ideas—namely, to “celebrate and
promote the couple's wedding and unique love story” and to
Page Proof Pending Publication
“celebrat[e] and promot[e]” what Ms. Smith understands to
be a true marriage. Id., at 186a–187a.
A hundred years ago, Ms. Smith might have furnished her
services using pen and paper. Those services are no less
protected speech today because they are conveyed with a
“voice that resonates farther than it could from any soap-
box.” Reno v. American Civil Liberties Union, 521 U. S.
844, 870 (1997). All manner of speech—from “pictures,
flms, paintings, drawings, and engravings,” to “oral utter-
ance and the printed word”—qualify for the First Amend-
ment's protections; no less can hold true when it comes to
speech like Ms. Smith's conveyed over the Internet.
Kaplan v. California, 413 U. S. 115, 119–120 (1973); see also
Shurtleff v. Boston, 596 U. S. –––, ––– – ––– (2022) (fags);
Brown v. Entertainment Merchants Assn., 564 U. S. 786, 790
(2011) (video games); Hurley, 515 U. S., at 568–570 (parades);
Ward v. Rock Against Racism, 491 U. S. 781, 790 (1989)
(music); Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 501–
502 (1952) (movies).
588 303 CREATIVE LLC v. ELENIS
Opinion of the Court
We further agree with the Tenth Circuit that the wedding
websites Ms. Smith seeks to create involve her speech. 6
F. 4th, at 1181, and n. 5. Again, the parties' stipulations lead
the way to that conclusion. See App. to Pet. for Cert. 181a,
187a. As the parties have described it, Ms. Smith intends
to “ve[t]” each prospective project to determine whether it
is one she is willing to endorse. Id., at 185a. She will con-
sult with clients to discuss “their unique stories as source
material.” Id., at 186a. And she will produce a fnal story
for each couple using her own words and her own “original
artwork.” Id., at 182a–183a. Of course, Ms. Smith's speech
may combine with the couple's in the fnal product. But for
purposes of the First Amendment that changes nothing. An
individual “does not forfeit constitutional protection simply
by combining multifarious voices” in a single communication.
Hurley, 515 U. S., at 569.
As surely as Ms. Smith seeks to engage in protected First
Page Proof Pending Publication
Amendment speech, Colorado seeks to compel speech
Ms. Smith does not wish to provide. As the Tenth Circuit
observed, if Ms. Smith offers wedding websites celebrating
marriages she endorses, the State intends to “forc[e her] to
create custom websites” celebrating other marriages she
does not. 6 F. 4th, at 1178. Colorado seeks to compel this
speech in order to “excis[e] certain ideas or viewpoints from
the public dialogue.” Turner Broadcasting System, Inc. v.
FCC, 512 U. S. 633, 642 (1994). Indeed, the Tenth Circuit
recognized that the coercive “[e]liminati[on]” of dissenting
“ideas” about marriage constitutes Colorado's “very pur-
pose” in seeking to apply its law to Ms. Smith. 6 F. 4th,
at 1178.
We part ways with the Tenth Circuit only when it comes to
the legal conclusions that follow. While that court thought
Colorado could compel speech from Ms. Smith consistent
with the Constitution, our First Amendment precedents laid
out above teach otherwise. In Hurley, the Court found that
Massachusetts impermissibly compelled speech in violation
Cite as: 600 U. S. 570 (2023) 589
Opinion of the Court
of the First Amendment when it sought to force parade orga-
nizers to accept participants who would “affec[t] the[ir] mes-
sage.” 515 U. S., at 572. In Dale, the Court held that New
Jersey intruded on the Boy Scouts' First Amendment rights
when it tried to require the group to “propound a point of
view contrary to its beliefs” by directing its membership
choices. 530 U. S., at 654. And in Barnette, this Court
found impermissible coercion when West Virginia required
schoolchildren to recite a pledge that contravened their con-
victions on threat of punishment or expulsion. 319 U. S., at
626–629. Here, Colorado seeks to put Ms. Smith to a similar
choice: If she wishes to speak, she must either speak as the
State demands or face sanctions for expressing her own be-
liefs, sanctions that may include compulsory participation in
“remedial . . . training,” fling periodic compliance reports as
offcials deem necessary, and paying monetary fnes. App.
120; supra, at 580–582. Under our precedents, that “is
Page Proof Pending Publication
enough,” more than enough, to represent an impermissible
abridgment of the First Amendment's right to speak freely.
Hurley, 515 U. S., at 574.
Consider what a contrary approach would mean. Under
Colorado's logic, the government may compel anyone who
speaks for pay on a given topic to accept all commissions on
that same topic—no matter the underlying message—if the
topic somehow implicates a customer's statutorily protected
trait. 6 F. 4th, at 1198 (Tymkovich, C. J., dissenting).
Taken seriously, that principle would allow the government
to force all manner of artists, speechwriters, and others
whose services involve speech to speak what they do not
believe on pain of penalty. The government could require
“an unwilling Muslim movie director to make a flm with a
Zionist message,” or “an atheist muralist to accept a commis-
sion celebrating Evangelical zeal,” so long as they would
make flms or murals for other members of the public with
different messages. Id., at 1199. Equally, the government
could force a male website designer married to another man
590 303 CREATIVE LLC v. ELENIS
Opinion of the Court
to design websites for an organization that advocates against
same-sex marriage. See Brief for Petitioners 26–27.
Countless other creative professionals, too, could be forced
to choose between remaining silent, producing speech that
violates their beliefs, or speaking their minds and incurring
sanctions for doing so. See, e. g., Brief for Creative Profes-
sionals et al. as Amici Curiae 5–10; Brief for First Amend-
ment Scholars as Amici Curiae 19–22. As our precedents
recognize, the First Amendment tolerates none of that.
In saying this much, we do not question the vital role pub-
lic accommodations laws play in realizing the civil rights of
all Americans. This Court has recognized that govern-
ments in this country have a “compelling interest” in elimi-
nating discrimination in places of public accommodation.
Roberts v. Uni ted States Jaycees, 468 U. S. 609, 628
(1984); see also Hurley, 515 U. S., at 571–572. This Court
has recognized, too, that public accommodations laws “vindi-
Page Proof Pending Publication
cate the deprivation of personal dignity that surely accompa-
nies denials of equal access to public establishments.”
Heart of Atlanta Motel, Inc. v. United States, 379 U. S.
241, 250 (1964) (internal quotation marks omitted); see also,
e. g., Katzenbach v. McClung, 379 U. S. 294 (1964); Newman
v. Piggie Park Enterprises, Inc., 390 U. S. 400 (1968) (per
curiam).
Over time, governments in this country have expanded
public accommodations laws in notable ways too. Statutes
like Colorado's grow from nondiscrimination rules the com-
mon law sometimes imposed on common carriers and places
of traditional public accommodation like hotels and restau-
rants. Dale, 530 U. S., at 656–657. Often, these enter-
prises exercised something like monopoly power or hosted
or transported others or their belongings much like bailees.
See, e. g., Liverpool & Great Western Steam Co. v. Phenix
Ins. Co., 129 U. S. 397, 437 (1889); Primrose v. Western Union
Telegraph Co., 154 U. S. 1, 14 (1894). Over time, some
States, Colorado included, have expanded the reach of these
Cite as: 600 U. S. 570 (2023) 591
Opinion of the Court
nondiscrimination rules to cover virtually every place of
business engaged in any sales to the public. Compare 1885
Colo. Sess. Laws pp. 132–133 (a short list of entities origi-
nally bound by the State's public accommodations law) with
Colo. Rev. Stat. § 24–34–601(1) (currently defning a public
accommodation to include “any place of business engaged in
any sales to the public”).
Importantly, States have also expanded their laws to pro-
hibit more forms of discrimination. Today, for example, ap-
proximately half the States have laws like Colorado's that
expressly prohibit discrimination on the basis of sexual ori-
entation.2 And, as we have recognized, this is entirely “un-
exceptional.” Masterpiece Cakeshop, 584 U. S., at –––.
States may “protect gay persons, just as [they] can protect
other classes of individuals, in acquiring whatever products
and services they choose on the same terms and conditions
as are offered to other members of the public. And there
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are no doubt innumerable goods and services that no one
could argue implicate the First Amendment.” Ibid.; see
also Hurley, 515 U. S., at 571–572; 6 F. 4th, at 1203 (Tymkov-
ich, C. J., dissenting). Consistent with all of this, Ms. Smith
herself recognizes that Colorado and other States are gener-
ally free to apply their public accommodations laws, includ-
2
Besides Colorado, this includes Cal. Civ. Code Ann. § 51 (West 2020);
Conn. Gen. Stat. § 46a–81d (2021); Del. Code Ann., Tit. 6, § 4504 (2019);
Haw. Rev. Stat. § 489–3 (Cum. Supp. 2021); Ill. Comp. Stat., ch. 775, § 5/1–
102 (West 2021); Iowa Code § 216.7 (2022); Me. Rev. Stat. Ann., Tit. 5,
§ 4591 (2013); Md. State Govt. Code Ann. § 20–304 (2021); Mass. Gen. Laws,
ch. 272, § 98 (2021); Mich. Comp. Laws Ann. § 37.2302 (West 2013); Minn.
Stat. § 363A.11 (2022); Nev. Rev. Stat. § 651.070 (2017); N. H. Rev. Stat.
Ann. § 354–A:17 (2022); N. J. Stat. Ann. § 10:5–12 (West 2013); N. M. Stat.
Ann. § 28–1–7 (2022); N. Y. Exec. Law Ann. § 291(2) (West 2019); Ore. Rev.
Stat. § 659A.403 (2021); R. I. Gen. Laws § 11–24–2 (2002); Vt. Stat. Ann.,
Tit. 9, § 4502(a) (2020); Va. Code Ann. § 2.2–3904 (2022); Wash. Rev. Code
§ 49.60.215 (2022); Wis. Stat. § 106.52 (2019–2020). See also Brief for Local
Governments et al. as Amici Curiae 5 (noting that many local govern-
ments have enacted similar rules).
592 303 CREATIVE LLC v. ELENIS
Opinion of the Court
ing their provisions protecting gay persons, to a vast array
of businesses. Reply Brief 15; see Tr. of Oral Arg. 45–46.
At the same time, this Court has also recognized that no
public accommodations law is immune from the demands of
the Constitution. In particular, this Court has held, public
accommodations statutes can sweep too broadly when de-
ployed to compel speech. In Hurley, the Court commented
favorably on Massachusetts's public accommodations law, but
made plain it could not be “applied to expressive activity” to
compel speech. 515 U. S., at 571, 578. In Dale, the Court
observed that New Jersey's public accommodations law had
many lawful applications but held that it could “not justify
such a severe intrusion on the Boy Scouts' rights to freedom
of expressive association.” 530 U. S., at 659. And, once
more, what was true in those cases must hold true here.
When a state public accommodations law and the Constitu-
tion collide, there can be no question which must prevail.
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U. S. Const., Art. VI, cl. 2.
Nor is it any answer, as the Tenth Circuit seemed to sup-
pose, that Ms. Smith's services are “unique.” 6 F. 4th, at
1180. In some sense, of course, her voice is unique; so is
everyone's. But that hardly means a State may coopt an
individual's voice for its own purposes. In Hurley, the vet-
erans had an “enviable” outlet for speech; after all, their pa-
rade was a notable and singular event. 515 U. S., at 560,
577–578. In Dale, the Boy Scouts offered what some might
consider a unique experience. 530 U. S., at 649–650. But
in both cases this Court held that the State could not use its
public accommodations statute to deny speakers the right
“to choose the content of [their] own message[s].” Hurley,
515 U. S., at 573; see Dale, 530 U. S., at 650–656. Were the
rule otherwise, the better the artist, the fner the writer, the
more unique his talent, the more easily his voice could be
conscripted to disseminate the government's preferred mes-
sages. That would not respect the First Amendment; more
nearly, it would spell its demise.
Cite as: 600 U. S. 570 (2023) 593
Opinion of the Court
IV
Before us, Colorado appears to distance itself from the
Tenth Circuit's reasoning. Now, the State seems to ac-
knowledge that the First Amendment does forbid it from co-
ercing Ms. Smith to create websites endorsing same-sex mar-
riage or expressing any other message with which she
disagrees. See Brief for Respondents 12 (disclaiming any
interest in “interfer[ing] with [Ms. Smith's] choice to offer
only websites of [her] own design”); see also Brief for United
States as Amicus Curiae 19 (conceding that “constitutional
concerns” would arise if Colorado “require[d] petitione[r] to
design a website” that she “would not create or convey for
any client”). Instead, Colorado devotes most of its efforts
to advancing an alternative theory for affrmance.
The State's alternative theory runs this way. To comply
with Colorado law, the State says, all Ms. Smith must do is
repurpose websites she will create to celebrate marriages
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she does endorse for marriages she does not. She sells a
product to some, the State reasons, so she must sell the same
product to all. Brief for Respondents 15, 20. At bottom,
Colorado's theory rests on a belief that the Tenth Circuit
erred at the outset when it said this case implicates pure
speech. Id., at 19. Instead, Colorado says, this case in-
volves only the sale of an ordinary commercial product and
any burden on Ms. Smith's speech is purely “incidental.”
Id., at 18, 25–28; see Tr. of Oral Arg. 65, 97–98. On the
State's telling, then, speech more or less vanishes from the
picture—and, with it, any need for First Amendment scru-
tiny. In places, the dissent seems to advance the same line
of argument. Post, at 630–631 (opinion of Sotomayor, J.).
This alternative theory, however, is diffcult to square with
the parties' stipulations. As we have seen, the State has
stipulated that Ms. Smith does not seek to sell an ordinary
commercial good but intends to create “customized and tai-
lored” speech for each couple. App. to Pet. for Cert. 181a,
187a. The State has stipulated that “[e]ach website 303 Cre-
594 303 CREATIVE LLC v. ELENIS
Opinion of the Court
ative designs and creates is an original, customized creation
for each client.” Id., at 181a. The State has stipulated, too,
that Ms. Smith's wedding websites “will be expressive in na-
ture, using text, graphics, and in some cases videos to cele-
brate and promote the couple's wedding and unique love
story.” Id., at 187a. As the case comes to us, then, Colo-
rado seeks to compel just the sort of speech that it tacitly
concedes lies beyond the reach of its powers.
Of course, as the State emphasizes, Ms. Smith offers her
speech for pay and does so through 303 Creative LLC, a com-
pany in which she is “the sole member-owner.” Id., at 181a;
see also post, at 635 (opinion of Sotomayor, J.) (emphasizing
Ms. Smith's “commercial” activity). But none of that makes
a difference. Does anyone think a speechwriter loses his
First Amendment right to choose for whom he works if he
accepts money in return? Or that a visual artist who ac-
cepts commissions from the public does the same? Many of
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the world's great works of literature and art were created
with an expectation of compensation. Nor, this Court has
held, do speakers shed their First Amendment protections
by employing the corporate form to disseminate their
speech. This fact underlies our cases involving everything
from movie producers to book publishers to newspapers.
See, e. g., Joseph Burstyn, Inc., 343 U. S., at 497–503;
Simon & Schuster, Inc. v. Members of N. Y. State Crime
Victims Bd., 502 U. S. 105, 114–116 (1991); Grosjean v. Amer-
ican Press Co., 297 U. S. 233, 240–241, 249 (1936).
Colorado next urges us to focus on the reason Ms. Smith
refuses to offer the speech it seeks to compel. She refuses,
the State insists, because she objects to the “protected char-
acteristics” of certain customers. Brief for Respondents 16;
see also post, at 628–629, 633 (opinion of Sotomayor, J.) (re-
citing the same argument). But once more, the parties' stip-
ulations speak differently. The parties agree that Ms. Smith
“will gladly create custom graphics and websites for gay, les-
bian, or bisexual clients or for organizations run by gay,
Cite as: 600 U. S. 570 (2023) 595
Opinion of the Court
lesbian, or bisexual persons so long as the custom graphics
and websites” do not violate her beliefs. App. to Pet. for
Cert. 184a. That is a condition, the parties acknowledge,
Ms. Smith applies to “all customers.” Ibid. Ms. Smith
stresses, too, that she has not and will not create expressions
that defy any of her beliefs for any customer, whether that
involves encouraging violence, demeaning another person, or
promoting views inconsistent with her religious commit-
ments. See Tr. of Oral Arg. 18–20. Nor, in any event, do
the First Amendment's protections belong only to speakers
whose motives the government fnds worthy; its protections
belong to all, including to speakers whose motives others
may fnd misinformed or offensive. See Federal Election
Comm'n v. Wisconsin Right to Life, Inc., 551 U. S. 449, 468–
469 (2007) (opinion of Roberts, C. J.) (observing that “a
speaker's motivation is entirely irrelevant” (internal quota-
tion marks omitted)); National Socialist Party of America
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v. Skokie, 432 U. S. 43, 43–44 (1977) (per curiam) (upholding
free-speech rights of participants in a Nazi parade); Snyder,
562 U. S., at 456–457 (same for protestors of a soldier's
funeral).3
3
The dissent labels the distinction between status and message “amus-
ing” and “embarrassing.” Post, at 634. But in doing so, the dissent ig-
nores a fundamental feature of the Free Speech Clause. While it does
not protect status-based discrimination unrelated to expression, generally
it does protect a speaker's right to control her own message—even when
we may disapprove of the speaker's motive or the message itself. The
dissent's derision is no answer to any of this. It ignores, too, the fact that
Colorado itself has, in other contexts, distinguished status-based discrimi-
nation (forbidden) from the right of a speaker to control his own message
(protected). See App. 131, 137, 140, 143–144, 149, 152, 154. (Truth be
told, even the dissent acknowledges “th[is] distinction” elsewhere in its
opinion. Post, at 633, n. 11.) Nor is the distinction unusual in societies
committed both to nondiscrimination rules and free expression. See, e. g.,
Lee v. Ashers Baking Co. Ltd., [2018] UKSC 49, p. 14 (“The less favourable
treatment was afforded to the message not to the man”). Does the dis-
sent really fnd all that amusing and embarrassing?
596 303 CREATIVE LLC v. ELENIS
Opinion of the Court
Failing all else, Colorado suggests that this Court's deci-
sion in FAIR supports affrmance. See also post, at 626–628
(opinion of Sotomayor, J.) (making the same argument). In
FAIR, a group of schools challenged a law requiring them,
as a condition of accepting federal funds, to permit military
recruiters space on campus on equal terms with other poten-
tial employers. 547 U. S., at 51–52, 58. The only expres-
sive activity required of the law schools, the Court found,
involved the posting of logistical notices along these lines:
“ `The U. S. Army recruiter will meet interested students in
Room 123 at 11 a.m.' ” Id., at 61–62. And, the Court rea-
soned, compelled speech of this sort was “incidental” and a
“far cry” from the speech at issue in our “leading First
Amendment precedents [that] have established the principle
that freedom of speech prohibits the government from telling
people what they must say.” Ibid.; see also NIFLA, 585
U. S., at –––.
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It is a far cry from this case too. To be sure, our cases
have held that the government may sometimes “requir[e] the
dissemination of purely factual and uncontroversial informa-
tion,” particularly in the context of “commercial advertis-
ing.” Hurley, 515 U. S., at 573 (internal quotation marks
omitted); see also NIFLA, 585 U. S., at –––; Riley v. Na-
tional Federation of Blind of N. C., Inc., 487 U. S. 781, 795–
796 (1988). But this case involves nothing like that. Here,
Colorado does not seek to impose an incidental burden on
speech. It seeks to force an individual to “utter what is not
in [her] mind” about a question of political and religious sig-
nifcance. Barnette, 319 U. S., at 634. And that, FAIR
reaffrmed, is something the First Amendment does not tol-
erate. No government, FAIR recognized, may affect a
“speaker's message” by “forc[ing]” her to “accommodate”
other views, 547 U. S., at 63; no government may “ `alter' ”
the “ `expressive content' ” of her message, id., at 63–64 (al-
teration omitted); and no government may “interfer[e] with”
her “desired message,” id., at 64.
Cite as: 600 U. S. 570 (2023) 597
Opinion of the Court
V
It is diffcult to read the dissent and conclude we are look-
ing at the same case. Much of it focuses on the evolution of
public accommodations laws, post, at 609–615, and the strides
gay Americans have made toward securing equal justice
under law, post, at 615–619. And, no doubt, there is much
to applaud here. But none of this answers the question we
face today: Can a State force someone who provides her own
expressive services to abandon her conscience and speak its
preferred message instead?
When the dissent fnally gets around to that question—
more than halfway into its opinion—it reimagines the facts
of this case from top to bottom. The dissent claims that
Colorado wishes to regulate Ms. Smith's “conduct,” not her
speech. Post, at 625–630. Forget Colorado's stipulation
that Ms. Smith's activities are “expressive,” App. to Pet. for
Cert. 181a, and the Tenth Circuit's conclusion that the State
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seeks to compel “pure speech,” 6 F. 4th, at 1176. The dis-
sent chides us for deciding a pre-enforcement challenge.
Post, at 625. But it ignores the Tenth Circuit's fnding that
Ms. Smith faces a credible threat of sanctions unless she con-
forms her views to the State's. 6 F. 4th, at 1172–1175. The
dissent suggests (over and over again) that any burden on
speech here is “incidental.” Post, at 625, 627–632, 634–635.
All despite the Tenth Circuit's fnding that Colorado intends
to force Ms. Smith to convey a message she does not believe
with the “very purpose” of “[e]liminating . . . ideas” that dif-
fer from its own. 6 F. 4th, at 1178.4
Nor does the dissent's reimagination end there. It claims
that, “for the frst time in its history,” the Court “grants a
business open to the public” a “right to refuse to serve mem-
bers of a protected class.” Post, at 603; see also post, at 628,
4
Perplexingly, too, the dissent suggests that, by recounting the Tenth
Circuit's conclusion on this score, we “misunderstan[d] this case” and “in-
vo[ke] . . . Orwellian thought policing.” Post, at 635, n. 14.
598 303 CREATIVE LLC v. ELENIS
Opinion of the Court
n. 10, 635–636. Never mind that we do no such thing and
Colorado itself has stipulated Ms. Smith will (as CADA re-
quires) “work with all people regardless of . . . sexual orien-
tation.” App. to Pet. for Cert. 184a. Never mind, too, that
it is the dissent that would have this Court do something
truly novel by allowing a government to coerce an individual
to speak contrary to her beliefs on a signifcant issue of per-
sonal conviction, all in order to eliminate ideas that differ
from its own.
There is still more. The dissent asserts that we “sweep
under the rug petitioners' challenge to CADA's Communica-
tion Clause.” Post, at 627. This despite the fact the parties
and the Tenth Circuit recognized that Ms. Smith's Communi-
cation Clause challenge hinges on her Accommodation Clause
challenge. (So much so that Colorado devoted less than two
pages at the tail end of its brief to the Communication Clause
and the Tenth Circuit afforded it just three paragraphs in
its free-speech analysis. See Brief for Respondents 44–45;
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6 F. 4th, at 1182–1183.) 5 The dissent even suggests that our
decision today is akin to endorsing a “separate but equal”
regime that would allow law frms to refuse women admis-
sion into partnership, restaurants to deny service to Black
Americans, or businesses seeking employees to post some-
thing like a “White Applicants Only” sign. Post, at 603, 618–
623, 627–628, 629, 634, and n. 13, 638–639. Pure fction all.
5
Why does the dissent try to refocus this case around the Communica-
tion Clause? Perhaps because the moment one acknowledges the parties'
stipulations—and the fact Colorado seeks to use its Accommodation Clause
to compel speech in order to ensure conformity to its own views on a topic
of major signifcance—the First Amendment implications become obvious.
As does the fact that our case is nothing like a typical application of a
public accommodations law requiring an ordinary, non-expressive business
to serve all customers or consider all applicants. Our decision today does
not concern—much less endorse—anything like the “ `straight couples
only' ” notices the dissent conjures out of thin air. Post, at 628, n. 10.
Nor do the parties discuss anything of the sort in their stipulations.
Cite as: 600 U. S. 570 (2023) 599
Opinion of the Court
In some places, the dissent gets so turned around about
the facts that it opens fre on its own position. For instance:
While stressing that a Colorado company cannot refuse “the
full and equal enjoyment of [its] services” based on a custom-
er's protected status, post, at 628, the dissent assures us that
a company selling creative services “to the public” does have
a right “to decide what messages to include or not to in-
clude,” post, at 629. But if that is true, what are we even
debating?
Instead of addressing the parties' stipulations about the
case actually before us, the dissent spends much of its time
adrift on a sea of hypotheticals about photographers, statio-
ners, and others, asking if they too provide expressive serv-
ices covered by the First Amendment. Post, at 629–630,
632–634, 638–639. But those cases are not this case.
Doubtless, determining what qualifes as expressive activity
protected by the First Amendment can sometimes raise dif-
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fcult questions. But this case presents no complication of
that kind. The parties have stipulated that Ms. Smith seeks
to engage in expressive activity. And the Tenth Circuit has
recognized her services involve “pure speech.” See supra,
at 583, 587. Nothing the dissent says can alter this—nor
can it displace the First Amendment protections that follow.
The dissent's treatment of precedent parallels its handling
of the facts. Take its remarkable suggestion that a govern-
ment forcing an individual to create speech on weighty issues
with which she disagrees—all, as the Tenth Circuit found,
with the goal of “[e]liminating” views it does not share, 6
F. 4th, at 1178—only “incidental[ly]” burdens First Amend-
ment liberties. Post, at 627–636. Far from embracing a no-
tion like that, our cases have rejected it time after time—
including in the context of public accommodations laws. See
Parts II–IV, supra; FAIR, 547 U. S., at 61–64 (no govern-
ment may affect a “speaker's own message” by “forc[ing]”
her to “accommodate” views she does not hold); Hurley, 515
600 303 CREATIVE LLC v. ELENIS
Opinion of the Court
U. S., at 563, 566 (using a public accommodations law to com-
pel parade organizers to include speech they did not believe
was no mere “ `incidental' ” infringement on First Amend-
ment rights); Dale, 530 U. S., at 659 (employing a public ac-
commodations law to require the Boy Scouts to alter their
admissions policies had more than “an incidental effect on
protected speech”).6
When it fnally gets around to discussing these controlling
precedents, the dissent offers a wholly unpersuasive attempt
to distinguish them. The First Amendment protections fur-
nished in Barnette, Hurley, and Dale, the dissent declares,
were limited to schoolchildren and “nonproft[s],” and it is
“dispiriting” to think they might also apply to Ms. Smith's
“commercial” activity. Post, at 634–636. But our prece-
dents endorse nothing like the limits the dissent would project
on them. Instead, as we have seen, the First Amendment ex-
tends to all persons engaged in expressive conduct, including
those who seek proft (such as speechwriters, artists, and
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website designers). See supra, at 594. If anything is
truly dispiriting here, it is the dissent's failure to take seri-
ously this Court's enduring commitment to protecting the
6
The dissent observes that public accommodations laws may some-
times touch on speech incidentally as they work to ensure ordinary, non-
expressive goods and services are sold on equal terms. Cf. post, at 625–
629 (citing Sorrell v. IMS Health Inc., 564 U. S. 552 (2011); Rumsfeld v.
FAIR, 547 U. S. 47 (2006); United States v. O'Brien, 391 U. S. 367 (1968)).
But as Hurley observed, there is nothing “incidental” about an infringe-
ment on speech when a public accommodations law is applied “peculiar[ly]”
to compel expressive activity. Hurley v. Irish-American Gay, Lesbian
and Bisexual Group of Boston, Inc., 515 U. S. 557, 572 (1995). The dis-
sent notes that our case law has not sustained every First Amendment
objection to an antidiscrimination rule, as with a law frm that sought to
exclude women from partnership. Post, at 621–623 (citing Hishon v.
King & Spalding, 467 U. S. 69 (1984); Roberts v. United States Jaycees, 468
U. S. 609 (1984)). But the dissent disregards Dale's holding that context
matters and that very different considerations come into play when a law
is used to force individuals to toe the government's preferred line when
speaking (or associating to express themselves) on matters of signifcance.
Boy Scouts of America v. Dale, 530 U. S. 640, 648–653 (2000).
Cite as: 600 U. S. 570 (2023) 601
Opinion of the Court
speech rights of all comers, no matter how controversial—or
even repugnant—many may fnd the message at hand.
Finally, the dissent comes out and says what it really
means: Once Ms. Smith offers some speech, Colorado
“would require [her] to create and sell speech, notwithstand-
ing [her] sincere objection to doing so”—and the dissent
would force her to comply with that demand. Post, at 631.
Even as it does so, however, the dissent refuses to acknowl-
edge where its reasoning leads. In a world like that, as
Chief Judge Tymkovich highlighted, governments could
force “an unwilling Muslim movie director to make a flm
with a Zionist message,” they could compel “an atheist mu-
ralist to accept a commission celebrating Evangelical zeal,”
and they could require a gay website designer to create web-
sites for a group advocating against same-sex marriage, so
long as these speakers would accept commissions from the
public with different messages. 6 F. 4th, at 1199 (dissenting
opinion). Perhaps the dissent fnds these possibilities un-
Page Proof Pending Publication
troubling because it trusts state governments to coerce only
“enlightened” speech. But if that is the calculation, it is a
dangerous one indeed.7
The dissent is right about one thing—“[w]hat a difference”
time can make. See post, at 604 (internal quotation marks
omitted). Eighty years ago in Barnette, this Court affrmed
that “no offcial, high or petty, can prescribe what shall be
7
Perhaps the dissent fnds these possibilities untroubling for another
reason. It asserts that CADA does not apply to “[m]any flmmakers, vis-
ual artists, and writers” because they do not “hold out” their services to
the public. Post, at 629. But the dissent cites nothing to support its
claim and instead, once more, fghts the facts. As we have seen, Colora-
do's law today applies to “any place of business engaged in any sales to
the public.” Colo. Rev. Stat. § 24–34–601(1) (emphasis added); see also
Part III, supra. And the dissent can hardly dispute that many artists
and writers accept commissions from the public. Brief for Creative Pro-
fessionals et al. as Amici Curiae 5–21. Certainly, Colorado does not ad-
vance anything like the dissent's argument; it calls any exemption to its
law for “artists” and others who provide “custom” services “unworkable.”
Brief for Respondents 28–31 (internal quotation marks omitted).
602 303 CREATIVE LLC v. ELENIS
Opinion of the Court
orthodox in politics, nationalism, religion, or other matters
of opinion.” 319 U. S., at 642. The Court did so despite the
fact that the speech rights it defended were deeply unpopu-
lar; at the time, the world was at war and many thought
respect for the fag and the pledge “essential for the welfare
of the state.” Id., at 662–663 (Frankfurter, J., dissenting);
see also id., at 636, 640 (majority opinion). Fifty years ago,
this Court protected the right of Nazis to march through a
town home to many Holocaust survivors and along the way
espouse ideas antithetical to those for which this Nation
stands. See Skokie, 432 U. S., at 43–44; supra, at 595. Five
years ago, in a case the dissenters highlight at the outset of
their opinion, the Court stressed that “it is not . . . the role of
the State or its offcials to prescribe what shall be offensive.”
Masterpiece Cakeshop, 584 U. S., at –––. And just days ago,
Members of today's dissent joined in holding that the First
Amendment restricts how States may prosecute stalkers de-
spite the “harm[ful],” “low-value,” and “upsetting” nature of
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their speech. Counterman v. Colorado, 600 U. S. 66, 74
(2023); id., at 86–87 (Sotomayor, J., concurring in part and
concurring in judgment).
Today, however, the dissent abandons what this Court's
cases have recognized time and time again: A commitment
to speech for only some messages and some persons is no
commitment at all. By approving a government's effort to
“[e]liminat[e]” disfavored “ideas,” 6 F. 4th, at 1178, today's
dissent is emblematic of an unfortunate tendency by some
to defend First Amendment values only when they fnd the
speaker's message sympathetic. But “[i]f liberty means
anything at all, it means the right to tell people what they
do not want to hear. ” Id., at 1190 (Tymkovich, C. J.,
dissenting) (quoting G. Orwell).
*
In this case, Colorado seeks to force an individual to speak
in ways that align with its views but defy her conscience
Cite as: 600 U. S. 570 (2023) 603
Sotomayor, J., dissenting
about a matter of major signifcance. In the past, other
States in Barnette, Hurley, and Dale have similarly tested
the First Amendment's boundaries by seeking to compel
speech they thought vital at the time. But, as this Court
has long held, the opportunity to think for ourselves and to
express those thoughts freely is among our most cherished
liberties and part of what keeps our Republic strong. Of
course, abiding the Constitution's commitment to the free-
dom of speech means all of us will encounter ideas we con-
sider “unattractive,” post, at 640 (opinion of Sotomayor, J.),
“misguided, or even hurtful,” Hurley, 515 U. S., at 574. But
tolerance, not coercion, is our Nation's answer. The First
Amendment envisions the United States as a rich and com-
plex place where all persons are free to think and speak as
they wish, not as the government demands. Because Colo-
rado seeks to deny that promise, the judgment is
Reversed.
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Justice Sotomayor, with whom Justice Kagan and
Justice Jackson join, dissenting.
Five years ago, this Court recognized the “general rule”
that religious and philosophical objections to gay marriage
“do not allow business owners and other actors in the econ-
omy and in society to deny protected persons equal access to
goods and services under a neutral and generally applicable
public accommodations law.” Masterpiece Cakeshop, Ltd. v.
Colorado Civil Rights Comm'n, 584 U. S. –––, ––– (2018).
The Court also recognized the “serious stigma” that would
result if “purveyors of goods and services who object to gay
marriages for moral and religious reasons” were “allowed to
put up signs saying `no goods or services will be sold if they
will be used for gay marriages.' ” Id., at –––.
Today, the Court, for the frst time in its history, grants a
business open to the public a constitutional right to refuse to
serve members of a protected class. Specifcally, the Court
holds that the First Amendment exempts a website-design
604 303 CREATIVE LLC v. ELENIS
Sotomayor, J., dissenting
company from a state law that prohibits the company from
denying wedding websites to same-sex couples if the com-
pany chooses to sell those websites to the public. The Court
also holds that the company has a right to post a notice that
says, “ `no [wedding websites] will be sold if they will be used
for gay marriages.' ” Ibid.
“What a difference fve years makes.” Carson v. Makin,
596 U. S. –––, ––– (2022) (Sotomayor, J., dissenting). And
not just at the Court. Around the country, there has been
a backlash to the movement for liberty and equality for gen-
der and sexual minorities. New forms of inclusion have
been met with reactionary exclusion. This is heartbreaking.
Sadly, it is also familiar. When the civil rights and women's
rights movements sought equality in public life, some public
establishments refused. Some even claimed, based on sin-
cere religious beliefs, constitutional rights to discriminate.
The brave Justices who once sat on this Court decisively re-
jected those claims.
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Now the Court faces a similar test. A business open to the
public seeks to deny gay and lesbian customers the full and
equal enjoyment of its services based on the owner's religious
belief that same-sex marriages are “false.” The business ar-
gues, and a majority of the Court agrees, that because the busi-
ness offers services that are customized and expressive, the
Free Speech Clause of the First Amendment shields the busi-
ness from a generally applicable law that prohibits discrimina-
tion in the sale of publicly available goods and services. That
is wrong. Profoundly wrong. As I will explain, the law in
question targets conduct, not speech, for regulation, and the
act of discrimination has never constituted protected expres-
sion under the First Amendment. Our Constitution contains
no right to refuse service to a disfavored group. I dissent.
I
A
A “public accommodations law” is a law that guarantees to
every person the full and equal enjoyment of places of public
Cite as: 600 U. S. 570 (2023) 605
Sotomayor, J., dissenting
accommodation without unjust discrimination. The Ameri-
can people, through their elected representatives, have
enacted such laws at all levels of government: The federal
Civil Rights Act of 1964 and the Americans with Disabilities
Act of 1990 prohibit discrimination by places of public accom-
modation on the basis of race, color, religion, national origin,
or disability.1 All but fve States have analogous laws that
prohibit discrimination on the basis of these and other traits,
such as age, sex, sexual orientation, and gender identity.2
And numerous local laws offer similar protections.
The people of Colorado have adopted the Colorado Anti-
Discrimination Act (CADA), which provides:
1
See 42 U. S. C. § 2000a et seq. (Title II of Civil Rights Act of 1964);
42 U. S. C. § 12181 et seq. (Title III of Americans with Disabilities Act
of 1990).
2
See Alaska Stat. § 18.80.230 (2023); Ariz. Rev. Stat. Ann. § 41–1442
(2017); Ark. Code Ann. § 16–123–107 (Supp. 2021); Cal. Civ. Code Ann. § 51
Page Proof Pending Publication
(West 2020); Colo. Rev. Stat. § 24–34–601 (2022); Conn. Gen. Stat. §§ 46a–
64, 46a–81d (Cum. Supp. 2023); Del. Code Ann., Tit. 6, § 4504 (Cum. Supp.
2022); Fla. Stat. §§ 413.08, 760.08 (2022); Haw. Rev. Stat. § 489–3 (Cum.
Supp. 2021); Idaho Code Ann. § 67–5909 (2020); Ill. Comp. Stat., ch. 775,
§ 5/1–102 (West Supp. 2021); Ind. Code § 22–9–1–2 (2022); Iowa Code § 216.7
(2023); Kan. Stat. Ann. § 44–1001 (2021); Ky. Rev. Stat. Ann. §§ 344.120,
344.145 (West 2018); La. Rev. Stat. Ann. § 51:2247 (West Cum. Supp. 2023);
Me. Rev. Stat. Ann., Tit. 5, § 4591 (Cum. Supp. 2023); Md. State Govt. Code
Ann. § 20–304 (2021); Mass. Gen. Laws, ch. 272, § 98 (2020); Mich. Comp.
Laws §§ 37.1102, 37.2302 (1981), as amended, 2023 Mich. Pub. Acts no. 6
(sine die); Minn. Stat. § 363A.11 (2022); Mo. Rev. Stat. § 213.065 (Cum.
Supp. 2021); Mont. Code Ann. § 49–2–304 (2021); Neb. Rev. Stat. § 20–134
(2022); Nev. Rev. Stat. § 651.070 (2017); N. H. Rev. Stat. Ann. § 354–A:17
(2022); N. J. Stat. Ann. § 10:5–12 (West Cum. Supp. 2023); N. M. Stat. Ann.
§ 28–1–7 (2022); N. Y. Civ. Rights Law Ann. § 40 (West 2019); N. D. Cent.
Code Ann. § 14–02.4–14 (2017); Ohio Rev. Code Ann. § 4112.02 (Lexis Supp.
2023); Okla. Stat., Tit. 25, § 1402 (2011); Ore. Rev. Stat. § 659A.403 (2021);
Pa. Stat. Ann., Tit. 43, § 953 (Purdon 2020); R. I. Gen. Laws § 11–24–2
(2002); S. C. Code Ann. § 45–9–10 (2016); S. D. Codifed Laws § 20–13–23
(2016); Tenn. Code Ann. § 4–21–501 (2021); Utah Code § 13–7–3 (2022); Vt.
Stat. Ann., Tit. 9, § 4502 (2020); Va. Code Ann. § 2.2–3904 (2022); Wash.
Rev. Code § 49.60.215 (2022); W. Va. Code Ann. § 5–11–2 (Lexis 2022); Wis.
Stat. § 106.52 (2019–2020); Wyo. Stat. Ann. § 6–9–101 (2021).
606 303 CREATIVE LLC v. ELENIS
Sotomayor, J., dissenting
“It is a discriminatory practice and unlawful for a per-
son, directly or indirectly, to refuse, withhold from, or
deny to an individual or a group, because of disability,
race, creed, color, sex, sexual orientation, gender iden-
tity, gender expression, marital status, national origin,
or ancestry, the full and equal enjoyment of the goods,
services, facilities, privileges, advantages, or accommo-
dations of a place of public accommodation.” Colo. Rev.
Stat. § 24–34–601(2)(a).
This provision, known as the Act's “Accommodation Clause,”
applies to any business engaged in sales “to the public.”
§ 24–34–601(1). The Accommodation Clause does not apply
to any “church, synagogue, mosque, or other place that is
principally used for religious purposes.” Ibid.
In addition, CADA contains what is referred to as the
Act's “Communication Clause,” which makes it unlawful to
advertise that services “will be refused, withheld from, or
Page Proof Pending Publication
denied,” or that an individual is “unwelcome” at a place of
public accommodation, based on the same protected traits.
§ 24–34–601(2)(a). In other words, just as a business open
to the public may not refuse to serve customers based on
race, religion, or sexual orientation, so too the business may
not hang a sign that says, “No Blacks, No Muslims, No Gays.”
A public accommodations law has two core purposes.
First, the law ensures “equal access to publicly available
goods and services.” Roberts v. United States Jaycees, 468
U. S. 609, 624 (1984) (emphasis added). For social groups
that face discrimination, such access is vital. All the more
so if the group is small in number or if discrimination against
the group is widespread. Equal access is mutually bene-
fcial: Protected persons receive “equally effective and mean-
ingful opportunity to beneft from all aspects of life in
America,” 135 Cong. Rec. 8506 (1989) (remarks of Sen.
Harkin) (Americans with Disabilities Act), and “society,”
in return, receives “the benefts of wide participation in
Cite as: 600 U. S. 570 (2023) 607
Sotomayor, J., dissenting
political, economic, and cultural life.” Roberts, 468 U. S.,
at 625.
Second, a public accommodations law ensures equal dig-
nity in the common market. Indeed, that is the law's “fun-
damental object”: “to vindicate `the deprivation of personal
dignity that surely accompanies denials of equal access to
public establishments.' ” Heart of Atlanta Motel, Inc. v.
United States, 379 U. S. 241, 250 (1964) (quoting S. Rep. No.
872, 88th Cong., 2d Sess., 16 (1964)). This purpose does not
depend on whether goods or services are otherwise avail-
able. “ `Discrimination is not simply dollars and cents, ham-
burgers and movies; it is the humiliation, frustration, and
embarrassment that a person must surely feel when he is
told that he is unacceptable as a member of the public be-
cause of his [social identity]. It is equally the inability to
explain to a child that regardless of education, civility, cour-
tesy, and morality he will be denied the right to enjoy equal
treatment.' ” 379 U. S., at 292 (Goldberg, J., concurring).
Page Proof Pending Publication
When a young Jewish girl and her parents come across a
business with a sign out front that says, “ `No dogs or Jews
allowed,' ” 3 the fact that another business might serve her
family does not redress that “stigmatizing injury,” Roberts,
468 U. S., at 625. Or, put another way, “the hardship Jackie
Robinson suffered when on the road” with his baseball team
“was not an inability to fnd some hotel that would have him;
it was the indignity of not being allowed to stay in the same
hotel as his white teammates.” J. Oleske, The Evolution of
Accommodation, 50 Harv. Civ. Rights-Civ. Lib. L. Rev. 99,
138 (2015).
To illustrate, imagine a funeral home in rural Mississippi
agrees to transport and cremate the body of an elderly man
who has passed away, and to host a memorial lunch. Upon
3
Hearings on the Nomination of Ruth Bader Ginsburg To Be Associate
Justice of the Supreme Court of the United States before the Senate Com-
mittee on the Judiciary, 103d Cong., 1st Sess., 139 (1993).
608 303 CREATIVE LLC v. ELENIS
Sotomayor, J., dissenting
learning that the man's surviving spouse is also a man, how-
ever, the funeral home refuses to deal with the family. Grief
stricken, and now isolated and humiliated, the family desper-
ately searches for another funeral home that will take the
body. They eventually fnd one more than 70 miles away.
See First Amended Complaint in Zawadski v. Brewer Fu-
neral Services, Inc., No. 55CI1–17–cv–00019 (C. C. Pearl
River Cty., Miss., Mar. 7, 2017), pp. 4–7.4 This ostracism,
this otherness, is among the most distressing feelings that
can be felt by our social species. K. Williams, Ostracism, 58
Ann. Rev. Psychology 425, 432–435 (2007).
Preventing the “unique evils” caused by “acts of invidious
discrimination in the distribution of publicly available goods,
services, and other advantages” is a compelling state interest
“of the highest order.” Roberts, 468 U. S., at 624, 628; see
Board of Directors of Rotary Int'l v. Rotary Club of Duarte,
481 U. S. 537, 549 (1987). Moreover, a law that prohibits
only such acts by businesses open to the public is narrowly
Page Proof Pending Publication
tailored to achieve that compelling interest. The law “re-
sponds precisely to the substantive problem which legiti-
mately concerns the State”: the harm from status-based dis-
crimination in the public marketplace. Roberts, 468 U. S.,
at 629 (internal quotation marks omitted).
This last aspect of a public accommodations law deserves
special emphasis: The law regulates only businesses that
choose to sell goods or services “to the general public,” e. g.,
Va. Code Ann. § 2.2–3904, or “to the public,” e. g., Mich.
4
The men in this story are Robert “Bob” Huskey and John “Jack” Za-
wadski. Bob and Jack were a loving couple of 52 years. They moved
from California to Colorado to care for Bob's mother, then to Wisconsin to
farm apples and teach special education, and then to Mississippi to retire.
Within weeks of this Court's decision in Obergefell v. Hodges, 576 U. S.
644 (2015), Bob and Jack got married. They were 85 and 81 years old on
their wedding day. A few months later, Bob's health took a turn. He
died the following spring. When Bob's family was forced to fnd an alter-
native funeral home more than an hour from where Bob and Jack lived,
the lunch in Bob's memory had to be canceled. Jack died the next year.
Cite as: 600 U. S. 570 (2023) 609
Sotomayor, J., dissenting
Comp. Laws § 37.2301. Some public accommodations laws,
such as the federal Civil Rights Act, list establishments that
qualify, but these establishments are ones open to the public
generally. See, e. g., 42 U. S. C. § 2000a(b) (hotels, restau-
rants, gas stations, movie theaters, concert halls, sports are-
nas, stadiums). A public accommodations law does not force
anyone to start a business, or to hold out the business's goods
or services to the public at large. The law also does not
compel any business to sell any particular good or service.
But if a business chooses to proft from the public market,
which is established and maintained by the state, the state
may require the business to abide by a legal norm of non-
discrimination. In particular, the state may ensure that
groups historically marked for second-class status are not
denied goods or services on equal terms.
The concept of a public accommodation thus embodies a
simple, but powerful, social contract: A business that chooses
to sell to the public assumes a duty to serve the public
Page Proof Pending Publication
without unjust discrimination. J. Singer, No Right To Ex-
clude: Public Accommodations and Private Property, 90 Nw.
U. L. Rev. 1283, 1298 (1996) (Singer).
B
The legal duty of a business open to the public to serve
the public without unjust discrimination is deeply rooted in
our history. The true power of this principle, however, lies
in its capacity to evolve, as society comes to understand more
forms of unjust discrimination and, hence, to include more
persons as full and equal members of “the public.”
1
“At common law, innkeepers, smiths, and others who `made
profession of a public employment,' were prohibited from re-
fusing, without good reason, to serve a customer.” Hurley
v. Irish-American Gay, Lesbian and Bisexual Group of Bos-
ton, Inc., 515 U. S. 557, 571 (1995) (quoting Lane v. Cotton,
610 303 CREATIVE LLC v. ELENIS
Sotomayor, J., dissenting
12 Mod. 472, 485, 88 Eng. Rep. 1458, 1465 (K. B. 1701) (Holt,
C. J.)). “Public employment” meant a business “in which the
owner has held himself out as ready to serve the public by
exercising his trade.” Singer 1307; see, e. g., Gisbourn v.
Hurst, 1 Salk. 249, 91 Eng. Rep. 220 (K. B. 1710). Take, for
example, Lane v. Cotton, “[t]he leading English case” on the
subject “cited over and over again in the nineteenth century
in the United States.” Singer 1304. There, Lord Chief
Justice Holt explained:
“[W]here-ever any subject takes upon himself a public
trust for the beneft of the rest of his fellow-subjects, he
is eo ipso bound to serve the subject in all the things
that are within the reach and comprehension of such an
offce, under pain of an action against him. . . . If on the
road a shoe fall off my horse, and I come to a smith to
have one put on, and the smith refuse to do it, an action
will lie against him, because he has made profession of
Page Proof Pending Publication
a trade which is for the public good, and has thereby
exposed and vested an interest of himself in all the
King's subjects that will employ him in the way of his
trade.” Lane v. Cotton, 12 Mod., at 484, 88 Eng. Rep.,
at 1464.
That is to say, a business's duty to serve all comers derived
from its choice to hold itself out as ready to serve the public.
This holding-out rationale became frmly established in early
American law. See 2 J. Kent, Commentaries on American
Law 464–465 (1827); J. Story, Commentaries on the Law of
Bailments §§ 495, 591 (1832); see also, e. g., Markham v.
Brown, 8 N. H. 523, 528 (1837); Jencks v. Coleman, 13 F. Cas.
442, 443 (No. 7,258) (CC RI 1835) (Story, J.); Dwight v. Brew-
ster, 18 Mass. 50, 53 (1822).
The majority is therefore mistaken to suggest that public
accommodations or common carriers historically assumed
duties to serve all comers because they enjoyed monopolies
or otherwise had market power. Ante, at 590. Tellingly, the
Cite as: 600 U. S. 570 (2023) 611
Sotomayor, J., dissenting
majority cites no common-law case espousing the monopoly
rationale.5 That is because nowhere in the relevant case law
“is monopoly suggested as the distinguishing characteristic.”
E. Adler, Business Jurisprudence, 28 Harv. L. Rev. 135, 156
(1914) (“A distinction based on monopoly would require proof
that the common carrier had some kind of a monopoly which
the private carrier did not have, or that `common' was synon-
ymous with `monopoly.' The plain meaning of the cases is
[instead that] the common was the public, the professional,
the business carrier or other trader”).6
2
After the Civil War, some States codifed the common-law
duty of public accommodations to serve all comers. See M.
Konvitz & T. Leskes, A Century of Civil Rights 155–157
(1961). Early state public accommodations statutes prohib-
ited discrimination based on race or color. Yet the principle
Page Proof Pending Publication
was at times stated more broadly: to provide “a remedy
against any unjust discrimination to the citizen in all public
places.” Ferguson v. Gies, 82 Mich. 358, 365, 46 N. W. 718,
5
For example, a case on which the majority relies found that it could
“shortly dispos[e]” of the question whether a steamship company was a
common carrier because the company was “the owner of a general ship,
carrying goods for hire . . . and perform[ing]” that service “regular[ly].”
Liverpool & Great Western Steam Co. v. Phenix Ins. Co., 129 U. S. 397,
437 (1889). No showing of market power was required. Ibid.
6
Nor does “host[ing] or transport[ing] others and their belongings,”
ante, at 590, explain the right of access. Smiths, for instance, did not al-
ways practice their trade by holding property for others. And even when
they did, any duty of care resulting from such bailment cannot explain the
duty to serve all comers, which logically must be assumed beforehand.
See Lane v. Cotton, 12 Mod. 472, 484, 88 Eng. Rep. 1458, 1464 (K. B. 1701)
(Holt, C. J.). That duty instead came from somewhere else, and the
weight of authority indicates that it came from a business's act of holding
itself out to the public as ready to serve anyone who would hire it. Singer
1304–1330; 3 W. Blackstone, Commentaries on the Laws of England 164
(1768); J. Story, Commentaries on the Law of Bailments §§ 495, 591 (1837);
1 T. Parsons, Law of Contracts 639, 643, 649 (1853).
612 303 CREATIVE LLC v. ELENIS
Sotomayor, J., dissenting
720 (1890). In 1885, Colorado adopted “ `An Act to Protect
All Citizens in Their Civil Rights,' which guaranteed `full
and equal enjoyment' of certain public facilities to `all citi-
zens,' `regardless of race, color or previous condition of servi-
tude.' ” Masterpiece Cakeshop, 584 U. S., at ––– – ––– (quot-
ing 1885 Colo. Sess. Laws p. 132). “A decade later, the
[State] expanded the requirement to apply to `all other places
of public accommodation.' ” 584 U. S., at ––– (quoting 1895
Colo. Sess. Laws ch. 61, p. 139). Congress, too, passed the
Civil Rights Act of 1875, which established “[t]hat all persons
within the jurisdiction of the United States shall be entitled
to the full and equal enjoyment of the accommodations, ad-
vantages, facilities, and privileges of inns, public conveyances
on land or water, theaters, and other places of public amuse-
ment . . . applicable alike to citizens of every race and color,
regardless of any previous condition of servitude.” Act of
Mar. 1, 1875, § 1, 18 Stat. 336.
Page Proof Pending Publication
This Court, however, struck down the federal Civil Rights
Act of 1875 as unconstitutional. Civil Rights Cases, 109
U. S. 3, 25 (1883). Southern States repealed public accom-
modations statutes and replaced them with Jim Crow laws.
And state courts construed any remaining right of access in
ways that furthered de jure and de facto racial segregation.7
Full and equal enjoyment came to mean “separate but equal”
enjoyment. The result of this backsliding was “the replace-
ment of a general right of access with a general right to
exclude . . . in order to promote a racial caste system.”
Singer 1295.
7
Compare, e. g., Chesapeake, O. & S. R. Co. v. Wells, 85 Tenn. 613, 615,
4 S. W. 5 (1887) (rejecting Ida B. Wells's claim that she was denied “ `ac-
commodations equal in all respects,' ” when she tried to enter a train car
“set apart for white ladies and their gentlemen” on account of tobacco
smoke in her car, and was forcibly removed), with Memphis & C. R. Co. v.
Benson, 85 Tenn. 627, 632, 4 S. W. 5, 7 (1887) (accepting that a white man
would be permitted to ride standing in the ladies' car on account of tobacco
smoke in his car).
Cite as: 600 U. S. 570 (2023) 613
Sotomayor, J., dissenting
In time, the civil rights movement of the mid-20th century
again demanded racial equality in public places. In 1963,
two decades after then–Howard University law student Pauli
Murray organized sit-ins at cafeterias in Washington, D. C.,
a diverse group of students and faculty from Tougaloo Col-
lege sat at Woolworth's lunch counter in Jackson, Mississippi.
For doing so, they were violently attacked by a white mob.
See A. Moody, Coming of Age in Mississippi 235–240 (1992).
Around the country, similar acts of protest against racial in-
justice, some big and some small, sought “to create such a cri-
sis and foster such a tension” that the country would be “forced
to confront the issue.” M. King, Letter from a Birmingham
Jail, Apr. 16, 1963. That year, Congress once more set out to
eradicate “discrimination . . . in places of accommodation and
public facilities,” Heart of Atlanta Motel, 379 U. S., at 246,
notwithstanding this Court's previous declaration of a fed-
eral public accommodations law to be unconstitutional.
Page Proof Pending Publication
Congress believed, rightly, that discrimination in places of
public accommodation—“the injustice of being arbitrarily de-
nied equal access to those facilities and accommodations
which are otherwise open to the general public”—had “no
place” in this country, the country “of the melting pot, of
equal rights, of one nation and one people.” S. Rep. No. 872,
at 8–9 (quoting President Kennedy, June 19, 1963). It there-
fore passed Title II of the Civil Rights Act of 1964, which
declares: “All persons shall be entitled to the full and equal
enjoyment of the goods, services, facilities, privileges, advan-
tages, and accommodations of any place of public accommo-
dation . . . without discrimination . . . on the ground of race,
color, religion, or national origin.” 42 U. S. C. § 2000a. In
enacting this landmark civil rights statute, Congress invoked
the holding-out rationale from antebellum common law: “one
who employed his private property for purposes of commer-
cial gain by offering goods or services to the public must
stick to his bargain.” S. Rep. No. 872, at 22; see also id., at
9–10 (endorsing Lord Holt's view in Lane v. Cotton).
614 303 CREATIVE LLC v. ELENIS
Sotomayor, J., dissenting
This bargain, America would soon realize, had long ex-
cluded half of society. Women, though having won the right
to vote half a century earlier, were not equal in public. In-
stead, a “separate-spheres ideology” had “assigned women
to the home and men to the market.” E. Sepper & D. Din-
ner, Sex in Public, 129 Yale L. J. 78, 83, 88–90 (2019) (Sep-
per & Dinner). Women were excluded from restaurants,
bars, civic and professional organizations, fnancial institu-
tions, and sports. “Just as it did for the civil rights strug-
gle, public accommodations served as kindling for feminist
mobilization.” Id., at 83, 97–104; cf. S. Mayeri, Reasoning
From Race: Feminism, Law, and the Civil Rights Revolution
9–40 (2011). In response to a movement for women's libera-
tion, numerous States banned discrimination in public accom-
modations on the basis of “sex.” See Sepper & Dinner 104,
nn. 145–147 (collecting statutes). Colorado was the frst
State to do so. See 1969 Colo. Sess. Laws ch. 74, p. 200.
Page Proof Pending Publication
In the decades that followed, the Nation opened its eyes
to another injustice. People with disabilities, though inher-
ently full and equal members of the public, had been ex-
cluded from many areas of public life. This exclusion
worked harms not only to disabled people's standards of liv-
ing, but to their dignity too. So Congress, responding once
again to a social movement, this time against the subordina-
tion of people with disabilities, banned discrimination on that
basis and secured by law disabled people's equal access to
public spaces. See S. Bagenstos, Law and the Contradic-
tions of the Disability Rights Movement 13–20 (2009); R. Col-
ker, The Disability Pendulum 22–68 (2005). The centerpiece
of this political and social action was the Americans with
Disabilities Act of 1990 (ADA). Title III of the ADA pro-
vides that “[n]o individual shall be discriminated against on
the basis of disability in the full and equal enjoyment of
the goods, services, facilities, privileges, advantages, or ac-
commodations of any place of public accommodation.” 42
U. S. C. § 12182(a).
Cite as: 600 U. S. 570 (2023) 615
Sotomayor, J., dissenting
Not only have public accommodations laws expanded to
recognize more forms of unjust discrimination, such as dis-
crimination based on race, sex, and disability, such laws have
also expanded to include more goods and services as “public
accommodations.” What began with common inns, carriers,
and smiths has grown to include restaurants, bars, movie
theaters, sports arenas, retail stores, salons, gyms, hospitals,
funeral homes, and transportation networks. See nn. 1–2,
supra; L. Lerman & A. Sanderson, Discrimination in Access
to Public Places: A Survey of State and Federal Public Ac-
commodations Laws, 7 N. Y. U. Rev. L. & Soc. Change 215,
217 (1978) (“ `Public accommodations' is a term of art which
was developed by the drafters of discrimination laws to refer
to [public] places other than schools, work places, and
homes”). Today, laws like Colorado's cover “any place of
business engaged in any sales to the public and any place
offering services . . . to the public.” Colo. Rev. Stat. § 24–
34–601(1); see also, e. g., Ohio Rev. Code Ann. § 4112.01(9).
Page Proof Pending Publication
Numerous other States extend such protections to busi-
nesses offering goods or services to “the general public.”
Ariz. Rev. Stat. Ann. § 41–1441(2); see also, e. g., Mass. Gen.
Laws, ch. 272, § 92A.
This broader scope, though more inclusive than earlier
state public accommodations laws, is in keeping with the fun-
damental principle—rooted in the common law, but alive and
blossoming in statutory law—that the duty to serve without
unjust discrimination is owed to everyone, and it extends to
any business that holds itself out as ready to serve the public.
If you have ever taken advantage of a public business with-
out being denied service because of who you are, then you
have come to enjoy the dignity and freedom that this princi-
ple protects.
3
Lesbian, gay, bisexual, and transgender (LGBT) people, no
less than anyone else, deserve that dignity and free-
dom. The movement for LGBT rights, and the resulting
616 303 CREATIVE LLC v. ELENIS
Sotomayor, J., dissenting
expansion of state and local laws to secure gender and sexual
minorities' full and equal enjoyment of publicly available
goods and services, is the latest chapter of this great Ameri-
can story.
LGBT people have existed for all of human history. And
as sure as they have existed, others have sought to deny
their existence, and to exclude them from public life. Those
who would subordinate LGBT people have often done so
with the backing of law. For most of American history,
there were laws criminalizing same-sex intimacy. Oberge-
fell v. Hodges, 576 U. S. 644, 660–661 (2015). “Gays and les-
bians were [also] prohibited from most government em-
ployment, barred from military service, excluded under
immigration laws, targeted by police, and burdened in their
rights to associate.” Id., at 661. “These policies worked to
create and reinforce the belief that gay men and lesbians”
constituted “an inferior class.” Brief for Organization of
Page Proof Pending Publication
American Historians as Amicus Curiae in Obergefell v.
Hodges, O. T. 2014, No. 14–556, p. 3.
State-sponsored discrimination was compounded by dis-
crimination in public accommodations, though the two often
went hand in hand. The police raided bars looking for gays
and lesbians so often that some bars put up signs saying,
“ `We Do Not Serve Homosexuals.' ” Id., at 13 (quoting G.
Chauncey, Why Marriage 8 (2004)). LGBT discrimination
in public accommodations has continued well into the 21st
century. See UCLA School of Law Williams Institute, C.
Mallory & B. Sears, Evidence of Discrimination in Public Ac-
commodations Based on Sexual Orientation and Gender
Identity (2016).
A social system of discrimination created an environment
in which LGBT people were unsafe. Who could forget the
brutal murder of Matthew Shepard? Matthew was targeted
by two men, tortured, tied to a buck fence, and left to die for
who he was. See K. Drake, Gay Man Beaten, Burned and
Left Tied to Fence, Casper Star-Tribune, Oct. 10, 1998,
Cite as: 600 U. S. 570 (2023) 617
Sotomayor, J., dissenting
p. A1. Or the Pulse nightclub massacre, the second-
deadliest mass shooting in U. S. history? See S. Stolberg,
For Gays Across America, a Massacre Punctuates Fitful
Gains, N. Y. Times, June 13, 2016, p. A1. Rates of violent
victimization are still signifcantly higher for LGBT people,
with transgender persons particularly vulnerable to attack.
See Dept. of Justice, J. Truman & R. Morgan, Violent Victim-
ization by Sexual Orientation and Gender Identity, 2017–2020
(2022).
Determined not to live as “social outcasts,” Masterpiece
Cakeshop, 584 U. S., at –––, LGBT people have risen up.
The social movement for LGBT rights has been long and
complex. See L. Faderman, The Gay Revolution (2015)
(Faderman). But if there ever was an “earthquake,” it oc-
curred in the fnal days of June in 1969 at the Stonewall Inn
in Greenwich Village. Id., at 169. The Stonewall Inn was
a gay bar with a “varied and lively clientele.” Id., at 171.
Page Proof Pending Publication
Its “ `unruly' element” made it “an especially inviting target”
for police raids. J. D'Emilio, Sexual Politics, Sexual Com-
munities 231 (1983) (D'Emilio). “Patrons of the Stonewall
tended to be young and nonwhite. Many were drag
queens. . . . ” Ibid. Just before midnight on June 27, the
New York police's Public Morals Squad showed up to the bar
and started making arrests. Drag queens, for example,
were arrested for offenses like being “disguised” in “un-
natural attire.” N. Y. Penal Law Ann. § 240.35(4) (West
1967).
What started out as a fairly routine police raid, however,
became anything but. Outside the Stonewall Inn, patrons
who had been thrown out started to form a crowd. “Jeers
and catcalls arose from the onlookers when a paddy wagon
departed with the bartender, the Stonewall's bouncer, and
three drag queens.” D'Emilio 231. “A few minutes later,
an offcer attempted to steer the last of the patrons, a lesbian,
through the bystanders to a nearby patrol car.” Id., at 231–
232. When she started to struggle, protests erupted.
618 303 CREATIVE LLC v. ELENIS
Sotomayor, J., dissenting
They lasted into the night and continued into the next.
News of the Stonewall protests “spread rapidly,” and “within
a year gay liberation groups had sprung into existence on
college campuses and in cities around the nation.” Id., at
233. From there, the path to LGBT rights has not been
quick or easy. Nor is it over. Still, change has come:
change in social attitudes, in representation, and in legal in-
stitutions. Faderman 535–629.
One signifcant change has been the addition of sexual ori-
entation and gender identity to public accommodations laws.
State and local legislatures took note of the failure of such
laws to protect LGBT people and, in response, acted to guar-
antee them “all the privileges . . . of any other member of
society.” Hearings on S. B. 200 before the House Judiciary
Committee, 66th Gen. Assem., 2d Reg. Sess., 4, 11–12 (Colo.
2008) (remarks of Sen. Judd). Colorado thus amended its
antidiscrimination law in 2008 to prohibit the denial of pub-
licly available goods or services on the basis of “sexual orien-
Page Proof Pending Publication
tation.” 2008 Colo. Sess. Laws. ch. 341, pp. 1596–1597.
About half of the States now provide such protections.8
It is “ `unexceptional' ” that they may do so. Ante, at 591
(quoting Masterpiece Cakeshop, 584 U. S., at –––). “These
are protections taken for granted by most people either be-
cause they already have them or do not need them; these are
protections against exclusion from an almost limitless
number of transactions and endeavors that constitute ordi-
nary civic life in a free society.” Romer v. Evans, 517 U. S.
8
See Cal. Civ. Code Ann. § 51; Colo. Rev. Stat. § 24–34–601; Conn. Gen.
Stat. § 46a–81d; Del. Code Ann., Tit. 6, § 4504; Haw. Rev. Stat. § 489–3; Ill.
Comp. Stat., ch. 775, § 5/1–102; Iowa Code § 216.7; Me. Rev. Stat. Ann., Tit.
5, § 4591; Md. State Govt. Code Ann. § 20–304; Mass. Gen. Laws, ch. 272,
§ 98; Mich. Comp. Laws § 37.2302, as amended; Minn. Stat. § 363A.11; Nev.
Rev. Stat. § 651.070; N. H. Rev. Stat. Ann. § 354–A:17; N. J. Stat. Ann.
§ 10:5–12; N. M. Stat. Ann. § 28–1–7; N. Y. Civ. Rights Law Ann. § 40; Ore.
Rev. Stat. § 659A.403; R. I. Gen. Laws § 11–24–2; Vt. Stat. Ann., Tit. 9,
§ 4502; Va. Code Ann. § 2.2–3904; Wash. Rev. Code § 49.60.215; Wis. Stat.
§ 106.52.
Cite as: 600 U. S. 570 (2023) 619
Sotomayor, J., dissenting
620, 631 (1996). LGBT people do not seek any special
treatment. All they seek is to exist in public. To inhabit
public spaces on the same terms and conditions as everyone
else.
C
Yet for as long as public accommodations laws have been
around, businesses have sought exemptions from them. The
civil rights and women's liberation eras are prominent exam-
ples of this. Backlashes to race and sex equality gave rise
to legal claims of rights to discriminate, including claims
based on First Amendment freedoms of expression and asso-
ciation. This Court was unwavering in its rejection of those
claims, as invidious discrimination “has never been accorded
affrmative constitutional protections.” Norwood v. Har-
rison, 413 U. S. 455, 470 (1973). In particular, the refusal to
deal with or to serve a class of people is not an expressive
interest protected by the First Amendment.
Page Proof Pending
1 Publication
Opponents of the Civil Rights Act of 1964 objected that
the law would force business owners to defy their beliefs.
Cf. ante, at 580. They argued that the Act would deny them
“any freedom to speak or to act on the basis of their religious
convictions or their deep-rooted preferences for associating
or not associating with certain classifcations of people.”
110 Cong. Rec. 7778 (1964) (remarks of Sen. Tower). Con-
gress rejected those arguments. Title II of the Act, in
particular, did not invade “rights of privacy [or] of free as-
sociation,” Congress concluded, because the establishments
covered by the law were “those regularly held open to the
public in general.” H. R. Rep. No. 914, 88th Cong., 1st Sess.,
pt. 2, p. 9 (1963); see also S. Rep. No. 872, at 92.
Having failed to persuade Congress, opponents of Title II
turned to the federal courts. In Heart of Atlanta Motel,
one of several arguments made by the plaintiff motel owner
was that Title II violated his Fifth Amendment due process
620 303 CREATIVE LLC v. ELENIS
Sotomayor, J., dissenting
rights by “tak[ing] away the personal liberty of an individual
to run his business as he sees ft with respect to the selection
and service of his customers.” Brief for Appellant, O. T.
1964, No. 515, p. 32. This Court disagreed, based on “a long
line of cases” holding that “prohibition of racial discrimina-
tion in public accommodations” did not “interfer[e] with per-
sonal liberty.” 379 U. S., at 260.
In Katzenbach v. McClung, 379 U. S. 294 (1964), the owner
of Ollie's Barbecue (Ollie McClung) likewise argued that
Title II's application to his business violated the “personal
rights of persons in their personal convictions” to deny serv-
ices to Black people. Brief for Appellees, O. T. 1964, No.
543, p. 33 (citing, inter alia, West Virginia Bd. of Ed. v. Bar-
nette, 319 U. S. 624 (1943)). Note that McClung did not re-
fuse to transact with Black people. Oh, no. He was willing
to offer them take-out service at a separate counter. See
Brief for NAACP Legal Defense and Educational Fund, Inc.,
Page Proof Pending Publication
as Amicus Curiae in Katzenbach v. McClung, p. 4, n. 5.
Only integrated table service, you see, violated McClung's
core beliefs. So he claimed a constitutional right to offer
Black people a limited menu of his services. This Court re-
jected that claim, citing its decision in Heart of Atlanta
Motel. See 379 U. S., at 298, n. 1.
Next is Newman v. Piggie Park Enterprises, Inc., 390
U. S. 400 (1968) (per curiam), in which the owner of a chain
of drive-in establishments asserted that requiring him to
“contribut[e]” to racial integration in any way violated the
First Amendment by interfering with his religious liberty.
App. to Pet. for Cert., O. T. 1967, No. 339, p. 21a. Title II
could not be applied to his business, he argued, because that
would “ `controven[e] the will of God.' ” 390 U. S., at 402–
403, n. 5. The Court found this argument “patently frivo-
lous.” Ibid.
Last but not least is Runyon v. McCrary, 427 U. S. 160
(1976), a case the majority studiously avoids. In Runyon,
the Court confronted the question whether “commercially
Cite as: 600 U. S. 570 (2023) 621
Sotomayor, J., dissenting
operated” schools had a First Amendment right to exclude
Black children, notwithstanding a federal law against racial
discrimination in contracting. Id., at 168; see 42 U. S. C.
§ 1981. The schools in question offered “educational serv-
ices” for sale to “the general public.” 427 U. S., at 172.
They argued that the law, as applied to them, violated their
First Amendment rights of “freedom of speech, and associa-
tion.” Pet. for Cert., O. T. 1976, No. 75–62, p. 6; see also
Brief for Petitioners, O. T. 1976, No. 75–62, p. 12 (“Freedom
to teach, to express ideas”). The Court, however, reasoned
that the schools' “practice” of denying educational services
to racial minorities was not shielded by the First Amend-
ment, for two reasons: First, “the Constitution places no
value on discrimination.” 427 U. S., at 176 (alterations and
internal quotation marks omitted). Second, the govern-
ment's regulation of conduct did not “inhibit” the schools'
ability to teach its preferred “ideas or dogma.” Ibid. (inter-
nal quotation marks omitted). Requiring the schools to
Page Proof Pending Publication
abide by an antidiscrimination law was not the same thing
as compelling the schools to express teachings contrary to
their sincerely held “belief that racial segregation is desir-
able.” Ibid.
2
First Amendment rights of expression and association
were also raised to challenge laws against sex discrimination.
In Roberts v. United States Jaycees, the United States Jay-
cees sought an exemption from a Minnesota law that forbids
discrimination on the basis of sex in public accommodations.
The U. S. Jaycees was a civic organization, which until then
had denied admission to women. The organization alleged
that applying the law to require it to include women would
violate its “members' constitutional rights of free speech and
association.” 468 U. S., at 615. “The power of the state to
change the membership of an organization is inevitably the
power to change the way in which it speaks,” the Jaycees
argued. Brief for Appellee, O. T. 1983, No. 83–724, p. 19
622 303 CREATIVE LLC v. ELENIS
Sotomayor, J., dissenting
(emphasis added). Thus, “the right of the Jaycees to decide
its own membership” was “inseparable,” in its view, “from
its ability to freely express itself.” Ibid.
This Court took a different view. The Court held that the
“application of the Minnesota statute to compel the Jaycees
to accept women” did not infringe the organization's First
Amendment “freedom of expressive association.” Roberts,
468 U. S., at 622. That was so because the State's public
accommodations law did “not aim at the suppression of
speech” and did “not distinguish between prohibited and per-
mitted activity on the basis of viewpoint.” Id., at 623–624.
If the State had applied the law “for the purpose of hamper-
ing the organization's ability to express its views,” that
would be a different matter. Id., at 624 (emphasis added).
“Instead,” the law's purpose was “eliminating discrimination
and assuring [the State's] citizens equal access to publicly
available goods and services. ” Ibid. “That goal, ” the
Page Proof Pending Publication
Court reasoned, “was unrelated to the suppression of expres-
sion” and “plainly serves compelling state interests of the
highest order.” Ibid.
Justice O'Connor concurred in part and concurred in the
judgment. See id., at 631. She stressed that the U. S. Jay-
cees was a predominantly commercial entity open to the pub-
lic. And she took the view that there was a First Amend-
ment “dichotomy” between rights of commercial and
expressive association. Id., at 634. The State, for example,
was “free to impose any rational regulation” on commercial
transactions themselves. “A shopkeeper,” Justice O'Connor
explained, “has no constitutional right to deal only with per-
sons of one sex.” Ibid.
To wit, the Court had just decided in Hishon v. King &
Spalding, 467 U. S. 69, 78 (1984), that a law partnership had
no constitutional right to discriminate on the basis of sex in
violation of Title VII. The law partnership was an act of
association. Its services (legal advocacy) were expressive;
Cite as: 600 U. S. 570 (2023) 623
Sotomayor, J., dissenting
indeed, they consisted of speech. So the law frm argued
that requiring it to consider a woman for the partnership
violated its First Amendment rights “of free expression” and
“of commercial association.” Brief for Respondent, O. T.
1983, No. 82–940, pp. 14–18. This Court rejected that argu-
ment. The application of Title VII did not “infringe consti-
tutional rights of expression or association,” the Court held,
because compliance with Title VII did not “inhibi[t]” the
partnership's ability to advocate for certain “ideas and be-
liefs.” 467 U. S., at 78 (internal quotation marks omitted);
see also supra, at 620–621 (discussing Runyon, 427 U. S., at
176). The Court reiterated: “ `[I]nvidious private discrimina-
tion . . . has never been accorded affrmative constitutional pro-
tections.' ” 467 U. S., at 78 (quoting Norwood, 413 U. S., at
470).
II
Battling discrimination is like “battling the Hydra. ”
Page Proof Pending Publication
Shelby County v. Holder, 570 U. S. 529, 560 (2013) (Gins-
burg, J., dissenting). Whenever you defeat “one form of . . .
discrimination,” another “spr[ings] up in its place.” Ibid.
Time and again, businesses and other commercial entities
have claimed constitutional rights to discriminate. And
time and again, this Court has courageously stood up to
those claims—until today. Today, the Court shrinks. A
business claims that it would like to sell wedding websites
to the general public, yet deny those same websites to gay
and lesbian couples. Under state law, the business is free
to include, or not to include, any lawful message it wants in
its wedding websites. The only thing the business may not
do is deny whatever websites it offers on the basis of sexual
orientation. This Court, however, grants the business a
broad exemption from state law and allows the business to
post a notice that says: Wedding websites will be refused
to gays and lesbians. The Court's decision, which confates
denial of service and protected expression, is a grave error.
624 303 CREATIVE LLC v. ELENIS
Sotomayor, J., dissenting
A
303 Creative LLC is a limited liability company that sells
graphic and website designs for proft. Lorie Smith is the
company's founder and sole member-owner. Smith believes
same-sex marriages are “false,” because “ `God's true story
of marriage' ” is a story of a “ `union between one man and
one woman.' ” Brief for Petitioners 4, 6–7 (quoting App. to
Pet. for Cert. 188a, 189a); Tr. of Oral Arg. 36, 40–41. Same-
sex marriage, according to her, “violates God's will” and
“harms society and children.” App. to Pet. for Cert. 186a.
303 Creative has never sold wedding websites. Smith
now believes, however, that “God is calling her `to explain
His true story about marriage.' ” Brief for Petitioners 7
(quoting App. to Pet. for Cert. 188a). For that reason, she
says, she wants her for-proft company to enter the wedding
website business. There is only one thing: Smith would like
her company to sell wedding websites “to the public,” App.
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to Pet. for Cert. 189a; Colo. Rev. Stat. § 24–34–601(1), but not
to same-sex couples. She also wants to post a notice on the
company's website announcing this intent to discriminate.
App. to Pet. for Cert. 188a–189a. In Smith's view, “it would
violate [her] sincerely held religious beliefs to create a wed-
ding website for a same-sex wedding because, by doing so,
[she] would be expressing a message celebrating and promot-
ing a conception of marriage that [she] believe[s] is contrary
to God's design.” Id., at 189a.
Again, Smith's company has never sold a wedding website
to any customer. Colorado, therefore, has never had to en-
force its antidiscrimination laws against the company. As
the majority puts it, however, Smith “worries that, if she
enters the wedding website business, the State will force her
to convey messages inconsistent with her belief that mar-
riage should be reserved to unions between one man and
one woman.” Ante, at 580. So Smith and her company, the
petitioners here, sued the State in federal court. They
sought a court decree giving them a special exemption from
Cite as: 600 U. S. 570 (2023) 625
Sotomayor, J., dissenting
CADA's Accommodation Clause (which, remember, makes it
unlawful for a business to hold itself out to the public yet
deny to any individual, because of sexual orientation, the full
and equal enjoyment of the business's goods or services, see
supra, at 605–606) and CADA's Communication Clause
(which makes it unlawful to advertise that goods or services
will be denied because of sexual orientation, see supra,
at 606). App. 303–304.
The breadth of petitioners' pre-enforcement challenge is
astounding. According to Smith, the Free Speech Clause of
the First Amendment entitles her company to refuse to sell
any “websites for same-sex weddings,” even though the com-
pany plans to offer wedding websites to the general public.
Ibid.; see also Brief for Petitioners 22–23, and n. 2; Tr. of
Oral Arg. 37–38. In other words, the company claims a
categorical exemption from a public accommodations law
simply because the company sells expressive services. The
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sweeping nature of this claim should have led this Court to
reject it.
B
The First Amendment does not entitle petitioners to a spe-
cial exemption from a state law that simply requires them to
serve all members of the public on equal terms. Such a law
does not directly regulate petitioners' speech at all, and peti-
tioners may not escape the law by claiming an expressive
interest in discrimination. The First Amendment likewise
does not exempt petitioners from the law's prohibition on
posting a notice that they will deny goods or services based
on sexual orientation.
1
This Court has long held that “the First Amendment does
not prevent restrictions directed at commerce or conduct
from imposing incidental burdens on speech.” Sorrell v.
IMS Health Inc., 564 U. S. 552, 567 (2011). “Congress, for
example, can prohibit employers from discriminating in hir-
626 303 CREATIVE LLC v. ELENIS
Sotomayor, J., dissenting
ing on the basis of race. The fact that this will require an
employer to take down a sign reading `White Applicants
Only' hardly means that the law should be analyzed as one
regulating the employer's speech rather than conduct.”
Rumsfeld v. Forum for Academic and Institutional Rights,
Inc., 547 U. S. 47, 62 (2006) (FAIR). This principle explains
“why an ordinance against outdoor fres might forbid burning
a fag and why antitrust laws can prohibit agreements in re-
straint of trade.” Sorrell, 564 U. S., at 567 (citation and in-
ternal quotation marks omitted).
Consider United States v. O'Brien, 391 U. S. 367 (1968).
In that case, the Court upheld the application of a law
against the destruction of draft cards to a defendant who
had burned his draft card to protest the Vietnam War. The
protester's conduct was indisputably expressive. Indeed, it
was political expression, which lies at the heart of the First
Amendment. Whitney v. California, 274 U. S. 357, 375
(1927) (Brandeis, J., concurring). Yet the O'Brien Court fo-
Page Proof Pending Publication
cused on whether the Government's interest in regulating
the conduct was to burden expression. Because it was not,
the regulation was subject to lesser constitutional scrutiny.
391 U. S., at 376–377, 381–382; Clark v. Community for Cre-
ative Non-Violence, 468 U. S. 288, 294, 299 (1984). The
O'Brien standard is satisfed if a regulation is unrelated to
the suppression of expression and “ `promotes a substantial
government interest that would be achieved less effectively
absent the regulation.' ” FAIR, 547 U. S., at 67 (quoting
United States v. Albertini, 472 U. S. 675, 689 (1985)).9
FAIR confronted the interaction between this principle
and an equal-access law. The law at issue was the Solomon
Amendment, which prohibits an institution of higher educa-
tion in receipt of federal funding from denying a military
recruiter “the same access to its campus and students that
9
The majority commits a fundamental error in suggesting that a law
does not regulate conduct if it ever applies to expressive activities. See
ante, at 597, 599. This would come as a great surprise to the O'Brien Court.
Cite as: 600 U. S. 570 (2023) 627
Sotomayor, J., dissenting
it provides to the nonmilitary recruiter receiving the most
favorable access.” 547 U. S., at 55; see 10 U. S. C. § 983(b).
A group of law schools challenged the Solomon Amendment
based on their sincere objection to the military's “Don't Ask,
Don't Tell” policy. For those who are too young to know,
“Don't Ask, Don't Tell” was a homophobic policy that barred
openly LGBT people from serving in the military. LGBT
people could serve only if they kept their identities secret.
The idea was that their open existence was a threat to the
military.
The law schools in FAIR claimed that the Solomon Amend-
ment infringed the schools' First Amendment freedom of
speech. The schools provided recruiting assistance in the
form of emails, notices on bulletin boards, and fyers. 547
U. S., at 60–61. As the Court acknowledged, those services
“clearly involve speech.” Id., at 60. And the Solomon
Amendment required “schools offering such services to other
recruiters” to provide them equally “on behalf of the mili-
Page Proof Pending Publication
tary,” even if the school deeply objected to creating such
speech. Id., at 61. But that did not transform the equal
provision of services into “compelled speech” of the kind
barred by the First Amendment, because the school's speech
was “only `compelled' if, and to the extent, the school pro-
vides such speech for other recruiters.” Id., at 62. Thus,
any speech compulsion was “plainly incidental to the Solo-
mon Amendment's regulation of conduct.” Ibid.
2
The same principle resolves this case. The majority tries
to sweep under the rug petitioners' challenge to CADA's
Communication Clause, so I will start with it. Recall that
Smith wants to post a notice on her company's homepage
that the company will refuse to sell any website for a same-
sex couple's wedding. This Court, however, has already
said that “a ban on race-based hiring may require employers
to remove `White Applicants Only' signs.” Sorrell, 564
628 303 CREATIVE LLC v. ELENIS
Sotomayor, J., dissenting
U. S., at 567 (quoting FAIR, 547 U. S., at 62; some internal
quotation marks omitted); see Pittsburgh Press Co. v. Pitts-
burgh Comm'n on Human Relations, 413 U. S. 376, 389
(1973). So petitioners concede that they are not entitled to
an exemption from the Communication Clause unless they
are also entitled to an exemption from the Accommodation
Clause. Brief for Petitioners 34–35. That concession is all
but fatal to their argument, because it shows that even “pure
speech” may be burdened incident to a valid regulation of
conduct.10
CADA's Accommodation Clause and its application here
are valid regulations of conduct. It is well settled that a
public accommodations law like the Accommodation Clause
does not “target speech or discriminate on the basis of its
content.” Hurley, 515 U. S., at 572. Rather, “the focal
point of its prohibition” is “on the act of discriminating
against individuals in the provision of publicly available
Page Proof Pending Publication
goods, privileges, and services.” Ibid. (emphasis added).
The State confrms this reading of CADA. The law applies
only to status-based refusals to provide the full and equal
enjoyment of whatever services petitioners choose to sell to
the public. See Brief for Respondents 15–18.
Crucially, the law “does not dictate the content of speech
at all, which is only `compelled' if, and to the extent,” the
company offers “such speech” to other customers. FAIR,
547 U. S., at 62. Colorado does not require the company to
“speak [the State's] preferred message.” Ante, at 597. Nor
10
The majority appears to fnd this discussion of the Communication
Clause upsetting. See ante, at 598, and n. 5. It is easy to understand
why: The Court's prior First Amendment cases clearly explain that a ban
on discrimination may require a business to take down a sign that ex-
presses the business owner's intent to discriminate. See, e. g., FAIR, 547
U. S., at 62. This principle is deeply inconsistent with the majority's posi-
tion. Thus, a “straight couples only” notice, like the one the Court today
allows, see App. to Pet. for Cert. 188a–189a, is itself a devastating indict-
ment of the majority's logic.
Cite as: 600 U. S. 570 (2023) 629
Sotomayor, J., dissenting
does it prohibit the company from speaking the company's
preferred message. The company could, for example, offer
only wedding websites with biblical quotations describing
marriage as between one man and one woman. Brief for
Respondents 15. (Just as it could offer only t-shirts with
such quotations.) The company could also refuse to include
the words “Love is Love” if it would not provide those words
to any customer. All the company has to do is offer its serv-
ices without regard to customers' protected characteristics.
Id., at 15–16. Any effect on the company's speech is there-
fore “incidental” to the State's content-neutral regulation of
conduct. FAIR, 547 U. S., at 62; see Hurley, 515 U. S., at
572–573.
Once these features of the law are understood, it becomes
clear that petitioners' freedom of speech is not abridged in
any meaningful sense, factual or legal. Petitioners remain
free to advocate the idea that same-sex marriage betrays
Page Proof Pending Publication
God's laws. FAIR, 547 U. S., at 60; Hishon, 467 U. S., at 78;
Runyon, 427 U. S., at 176. Even if Smith believes God is
calling her to do so through her for-proft company, the com-
pany need not hold out its goods or services to the public at
large. Many flmmakers, visual artists, and writers never
do. (That is why the law does not require Steven Spielberg
or Banksy to make flms or art for anyone who asks. But
cf. ante, at 589, 600–601.) Finally, and most importantly,
even if the company offers its goods or services to the public,
it remains free under state law to decide what messages to
include or not to include. To repeat (because it escapes the
majority): The company can put whatever “harmful” or “low-
value” speech it wants on its websites. It can “tell people
what they do not want to hear.” Ante, at 602 (internal quo-
tation marks and brackets omitted). All the company may
not do is offer wedding websites to the public yet refuse
those same websites to gay and lesbian couples. See Ru-
nyon, 427 U. S., at 176 (distinguishing between schools' abil-
ity to express their bigoted view “that racial segregation is
630 303 CREATIVE LLC v. ELENIS
Sotomayor, J., dissenting
desirable” and the schools' proscribable “practice of exclud-
ing racial minorities”).
Another example might help to illustrate the point. A
professional photographer is generally free to choose her
subjects. She can make a living taking photos of fowers or
celebrities. The State does not regulate that choice. If the
photographer opens a portrait photography business to the
public, however, the business may not deny to any person,
because of race, sex, national origin, or other protected char-
acteristic, the full and equal enjoyment of whatever services
the business chooses to offer. That is so even though por-
trait photography services are customized and expressive.
If the business offers school photos, it may not deny those
services to multiracial children because the owner does not
want to create any speech indicating that interracial couples
are acceptable. If the business offers corporate headshots,
it may not deny those services to women because the owner
believes a woman's place is in the home. And if the business
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offers passport photos, it may not deny those services to
Mexican Americans because the owner opposes immigration
from Mexico.
The same is true for sexual-orientation discrimination. If
a photographer opens a photo booth outside of city hall and
offers to sell newlywed photos captioned with the words
“Just Married,” she may not refuse to sell that service to a
newlywed gay or lesbian couple, even if she believes the cou-
ple is not, in fact, just married because in her view their
marriage is “false.” Tr. of Oral Arg. 36, 40–41.
3
Because any burden on petitioners' speech is incidental to
CADA's neutral regulation of commercial conduct, the regu-
lation is subject to the standard set forth in O'Brien. That
standard is easily satisfed here because the law's application
“promotes a substantial government interest that would be
achieved less effectively absent the regulation.” FAIR, 547
Cite as: 600 U. S. 570 (2023) 631
Sotomayor, J., dissenting
U. S., at 67 (internal quotation marks omitted). Indeed, this
Court has already held that the State's goal of “eliminating
discrimination and assuring its citizens equal access to pub-
licly available goods and services” is “unrelated to the sup-
pression of expression” and “plainly serves compelling state
interests of the highest order.” Roberts, 468 U. S., at 624.
The Court has also held that by prohibiting only “acts of
invidious discrimination in the distribution of publicly avail-
able goods, services, and other advantages,” the law “re-
sponds precisely to the substantive problem which legiti-
mately concerns the State and abridges no more speech . . .
than is necessary to accomplish that purpose.” Id., at 628–
629 (emphasis added; internal quotation marks omitted); see
supra, at 606–609.
C
The Court reaches the wrong answer in this case because
it asks the wrong questions. The question is not whether
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the company's products include “elements of speech.”
FAIR, 547 U. S., at 61. (They do.) The question is not even
whether CADA would require the company to create and
sell speech, notwithstanding the owner's sincere objection to
doing so, if the company chooses to offer “such speech” to
the public. Id., at 62. (It would.) These questions do not
resolve the First Amendment inquiry any more than they
did in FAIR. Instead, the proper focus is on the character
of state action and its relationship to expression. Because
Colorado seeks to apply CADA only to the refusal to provide
same-sex couples the full and equal enjoyment of the com-
pany's publicly available services, so that the company's
speech “is only `compelled' if, and to the extent,” the com-
pany chooses to offer “such speech” to the public, any burden
on speech is “plainly incidental” to a content-neutral regula-
tion of conduct. Ibid.
The majority attempts to distinguish this clear holding of
FAIR by suggesting that the compelled speech in FAIR was
“incidental” because it was “logistical” (e. g., “The U. S.
632 303 CREATIVE LLC v. ELENIS
Sotomayor, J., dissenting
Army recruiter will meet interested students in Room 123 at
11 a.m.”). Ante, at 596 (internal quotation marks omitted).
This attempt fails twice over. First, the law schools in
FAIR alleged that the Solomon Amendment required them
to create and disseminate speech propagating the military's
message, which they deeply objected to, and to include mili-
tary speakers in on- and off-campus forums (if the schools
provided equally favorable services to other recruiters).
547 U. S., at 60–61; App. 27 and Brief for Respondents 5–8
in Rumsfeld v. Forum for Academic and Institutional
Rights, Inc., O. T. 2005, No. 04–1152. The majority simply
skips over the Court's key reasoning for why any speech
compulsion was nevertheless “incidental” to the Amend-
ment's regulation of conduct: It would occur only “if, and to
the extent,” the regulated entity provided “such speech” to
others. FAIR, 547 U. S., at 62. Likewise in O'Brien, the
reason the burden on O'Brien's expression was incidental
Page Proof Pending Publication
was not because his message was factual or uncontroversial.
But cf. ante, at 596. O'Brien burned his draft card to send
a political message, and the burden on his expression was
substantial. Still, the burden was “incidental” because it
was ancillary to a regulation that did not aim at expression.
391 U. S., at 377.
Second, the majority completely ignores the categorical
nature of the exemption claimed by petitioners. Petitioners
maintain, as they have throughout this litigation, that they
will refuse to create any wedding website for a same-sex
couple. Even an announcement of the time and place of a
wedding (similar to the majority's example from FAIR)
abridges petitioners' freedom of speech, they claim, because
“the announcement of the wedding itself is a concept that
[Smith] believes to be false.” Tr. of Oral Arg. 41. Indeed,
petitioners here concede that if a same-sex couple came
across an opposite-sex wedding website created by the com-
pany and requested an identical website, with only the names
Cite as: 600 U. S. 570 (2023) 633
Sotomayor, J., dissenting
and date of the wedding changed, petitioners would refuse.
Id., at 37–38.11 That is status-based discrimination, plain
and simple.
Oblivious to this fact, the majority insists that petitioners
discriminate based on message, not status. The company,
says the majority, will not sell same-sex wedding websites
to anyone. Ante, at 595. It will sell only opposite-sex wed-
ding websites; that is its service. Petitioners, however,
“cannot defne their service as `opposite-sex wedding [web-
sites]' any more than a hotel can recast its services as
`whites-only lodgings.' ” Telescope Media Group v. Lucero,
936 F. 3d 740, 769 (CA8 2019) (Kelly, J., concurring in part
and dissenting in part). To allow a business open to the
public to defne the expressive quality of its goods or services
to exclude a protected group would nullify public accommo-
dations laws. It would mean that a large retail store could
sell “passport photos for white people.”
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The majority protests that Smith will gladly sell her goods
and services to anyone, including same-sex couples. Ante,
at 580, 595. She just will not sell websites for same-sex wed-
dings. Apparently, a gay or lesbian couple might buy a wed-
ding website for their straight friends. This logic would be
11
Because petitioners have never sold a wedding website to anyone, the
record contains only a mockup website. The mockup confrms what you
would expect: The website provides details of the event, a form to RSVP, a
gift registry, etc. See App. 51–72. The customization of these elements
pursuant to a content-neutral regulation of conduct does not unconstitu-
tionally intrude upon any protected expression of the website designer.
Yet Smith claims a First Amendment right to refuse to provide any wed-
ding website for a same-sex couple. Her claim therefore rests on the idea
that her act of service is itself a form of protected expression. In grant-
ing Smith's claim, the majority collapses the distinction between status-
based and message-based refusals of service. The history shows just how
profoundly wrong that is. See Runyon v. McCrary, 427 U. S. 160, 176
(1976); Hishon v. King & Spalding, 467 U. S. 69, 78 (1984); Roberts v.
United States Jaycees, 468 U. S. 609, 622–629 (1984).
634 303 CREATIVE LLC v. ELENIS
Sotomayor, J., dissenting
amusing if it were not so embarrassing.12 I suppose the
Heart of Atlanta Motel could have argued that Black people
may still rent rooms for their white friends. Smith answers
that she will sell other websites for gay or lesbian clients.
But then she, like Ollie McClung, who would serve Black
people take-out but not table service, discriminates against
LGBT people by offering them a limited menu.13 This is
plain to see, for all who do not look the other way.
The majority, however, analogizes this case to Hurley and
Boy Scouts of America v. Dale, 530 U. S. 640 (2000). The
law schools in FAIR likewise relied on Hurley and Dale to
argue that the Solomon Amendment violated their free-
speech rights. FAIR confrmed, however, that a neutral
regulation of conduct imposes an incidental burden on speech
when the regulation grants a right of equal access that re-
quires the regulated party to provide speech only if, and to
the extent, it provides such speech for others. Supra, at
626–627, 631–632.
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Hurley and Dale, by contrast, involved “peculiar” applica-
tions of public accommodations laws, not to “the act of dis-
criminating . . . in the provision of publicly available goods”
by “clearly commercial entities,” but rather to private, non-
proft expressive associations in ways that directly burdened
speech. Hurley, 515 U. S., at 572 (private parade); Dale, 530
U. S., at 657 (Boy Scouts). The Court in Hurley and Dale
stressed that the speech burdens in those cases were not
12
The majority tacitly acknowledges the absurdity. At the start of its
opinion, it explains that Smith “decided to expand her offerings to include
services for couples seeking websites for their weddings.” Ante, at 579
(emphasis added).
13
What is “ `embarrassing' ” about this reasoning is not, as the Court
claims, the “distinction between status and message.” Ante, at 595, n. 3.
It is petitioners' contrivance, embraced by the Court, that a prohibition
on status-based discrimination can be avoided by asserting that a group
can always buy services on behalf of others, or else that the group can
access a “separate but equal” subset of the services made available to
everyone else.
Cite as: 600 U. S. 570 (2023) 635
Sotomayor, J., dissenting
incidental to prohibitions on status-based discrimination be-
cause the associations did not assert that “mere acceptance
of a member from a particular group would impair [the asso-
ciation's] message.” Dale, 530 U. S., at 653; see also ibid.
(reasoning that Dale was excluded for being a gay rights
activist, not for being gay); ibid. (explaining that in Hurley,
“the parade organizers did not wish to exclude the GLIB
[Irish-American gay, lesbian, and bisexual group] mem-
bers because of their sexual orientations, but because they
wanted to march behind a GLIB banner”); Hurley, 515 U. S.,
at 572–573.
Here, the opposite is true. 303 Creative LLC is a “clearly
commercial entit[y].” Dale, 530 U. S., at 657. The company
comes under the regulation of CADA only if it sells services
to the public, and only if it denies the equal enjoyment of
such services because of sexual orientation. The State con-
frms that the company is free to include or not to include any
message in whatever services it chooses to offer. Supra, at
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628–630. And the company confrms that it plans to engage
in status-based discrimination. Supra, at 624–625, 632–634.
Therefore, any burden on the company's expression is inci-
dental to the State's content-neutral regulation of commer-
cial conduct.
Frustrated by this inescapable logic, the majority dials up
the rhetoric, asserting that “Colorado seeks to compel [the
company's] speech in order to excise certain ideas or view-
points from the public dialogue.” The State's “very purpose
in seeking to apply its law,” in the majority's view, is “the
coercive elimination of dissenting ideas about marriage.”
Ante, at 588 (internal quotation marks and brackets omit-
ted).14 That is an astonishing view of the law. It is con-
trary to the fact that a law requiring public-facing businesses
14
The majority's repeated invocation of this Orwellian thought policing is
revealing of just how much it misunderstands this case. See ante, at 588–
589, 596–597, 601–602 (claiming that the State seeks to “eliminate ideas” and
that it will punish Smith unless she “conforms her views to the State's”).
636 303 CREATIVE LLC v. ELENIS
Sotomayor, J., dissenting
to accept all comers “is textbook viewpoint neutral,” Chris-
tian Legal Soc. Chapter of Univ. of Cal., Hastings College of
Law v. Martinez, 561 U. S. 661, 695 (2010); contrary to the
fact that the Accommodation Clause and the State's applica-
tion of it here allows Smith to include in her company's goods
and services whatever “dissenting views about marriage”
she wants; and contrary to this Court's clear holdings that
the purpose of a public accommodations law, as applied to
the commercial act of discrimination in the sale of publicly
available goods and services, is to ensure equal access to and
equal dignity in the public marketplace, supra, at 606–609.
So it is dispiriting to read the majority suggest that this
case resembles West Virginia Bd. of Ed. v. Barnette, 319
U. S. 624 (1943). A content-neutral equal-access policy is “a
far cry” from a mandate to “endorse” a pledge chosen by the
Government. FAIR, 547 U. S., at 62. This Court has said
“it trivializes the freedom protected in Barnette” to equate
the two. Ibid. Requiring Smith's company to abide by a
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law against invidious discrimination in commercial sales to
the public does not conscript her into espousing the govern-
ment's message. It does not “invad[e]” her “sphere of intel-
lect” or violate her constitutional “right to differ.” Ante, at
580, 585 (internal quotation marks omitted). All it does is
require her to stick to her bargain: “The owner who hangs a
shingle and offers her services to the public cannot retreat
from the promise of open service; to do so is to offer the
public marked money. It is to convey the promise of a free
and open society and then take the prize away from the de-
spised few.” J. Singer, We Don't Serve Your Kind Here:
Public Accommodations and the Mark of Sodom, 95 B. U.
L. Rev. 929, 949 (2015).
III
Today is a sad day in American constitutional law and in
the lives of LGBT people. The Supreme Court of the
United States declares that a particular kind of business,
though open to the public, has a constitutional right to refuse
Cite as: 600 U. S. 570 (2023) 637
Sotomayor, J., dissenting
to serve members of a protected class. The Court does so
for the frst time in its history. By issuing this new license
to discriminate in a case brought by a company that seeks to
deny same-sex couples the full and equal enjoyment of its
services, the immediate, symbolic effect of the decision is to
mark gays and lesbians for second-class status. In this way,
the decision itself inficts a kind of stigmatic harm, on top of
any harm caused by denials of service. The opinion of the
Court is, quite literally, a notice that reads: “Some services
may be denied to same-sex couples.”
“The truth is,” these “affronts and denials” “are intensely
human and personal.” S. Rep. No. 872, at 15 (internal quo-
tation marks omitted). Sometimes they may “harm the
physical body, but always they strike at the root of the
human spirit, at the very core of human dignity.” Ibid. To
see how, imagine a same-sex couple browses the public mar-
ket with their child. The market could be online or in a
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shopping mall. Some stores sell products that are custo-
mized and expressive. The family sees a notice announcing
that services will be refused for same-sex weddings. What
message does that send? It sends the message that we live
in a society with social castes. It says to the child of the
same-sex couple that their parents' relationship is not equal
to others'. And it reminds LGBT people of a painful feeling
that they know all too well: There are some public places
where they can be themselves, and some where they cannot.
K. Yoshino, Covering 61–66 (2006). Ask any LGBT person,
and you will learn just how often they are forced to navigate
life in this way. They must ask themselves: If I reveal my
identity to this co-worker, or to this shopkeeper, will they
treat me the same way? If I hold the hand of my partner
in this setting, will someone stare at me, harass me, or even
hurt me? It is an awful way to live. Freedom from this
way of life is the very object of a law that declares: All mem-
bers of the public are entitled to inhabit public spaces on
equal terms.
638 303 CREATIVE LLC v. ELENIS
Sotomayor, J., dissenting
This case cannot be understood outside of the context in
which it arises. In that context, the outcome is even more
distressing. The LGBT rights movement has made historic
strides, and I am proud of the role this Court recently played
in that history. Today, however, we are taking steps back-
ward. A slew of anti-LGBT laws have been passed in some
parts of the country,15 raising the specter of a “bare . . . de-
sire to harm a politically unpopular group.” Romer, 517
U. S., at 634 (internal quotation marks omitted). This is es-
pecially unnerving when “for centuries there have been pow-
erful voices to condemn” this small minority. Lawrence v.
Texas, 539 U. S. 558, 571 (2003). In this pivotal moment,
the Court had an opportunity to reaffrm its commitment to
equality on behalf of all members of society, including LGBT
people. It does not do so.
Although the consequences of today's decision might be
most pressing for the LGBT community, the decision's logic
cannot be limited to discrimination on the basis of sexual
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orientation or gender identity. The decision threatens to
balkanize the market and to allow the exclusion of other
groups from many services. A website designer could
equally refuse to create a wedding website for an interracial
couple, for example. How quickly we forget that opposition
to interracial marriage was often because “ `Almighty God
. . . did not intend for the races to mix.' ” Loving v. Vir-
ginia, 388 U. S. 1, 3 (1967). Yet the reason for discrimi-
nation need not even be religious, as this case arises under
the Free Speech Clause. A stationer could refuse to sell a
birth announcement for a disabled couple because she op-
poses their having a child. A large retail store could re-
15
These laws variously censor discussion of sexual orientation and gen-
der identity in schools, see, e. g., 2023 Ky. Acts pp. 775–779, and ban drag
shows in public, see 2023 Tenn. Pub. Acts ch. 2. Yet we are told that the
real threat to free speech is that a commercial business open to the public
might have to serve all members of the public.
Cite as: 600 U. S. 570 (2023) 639
Sotomayor, J., dissenting
serve its family portrait services for “traditional” families.
And so on.16
Wedding websites, birth announcements, family portraits,
epitaphs. These are not just words and images. They are
the most profound moments in a human's life. They are the
moments that give that life personal and cultural meaning.
You already heard the story of Bob and Jack, the elderly gay
couple forced to fnd a funeral home more than an hour away.
Supra, at 607–608, and n. 4. Now hear the story of Cynthia
and Sherry, a lesbian couple of 13 years until Cynthia died
from cancer at age 35. When Cynthia was diagnosed, she
drew up a will, which authorized Sherry to make burial ar-
rangements. Cynthia had asked Sherry to include an in-
scription on her headstone, listing the relationships that
were important to her, for example, “daughter, granddaugh-
ter, sister, and aunt.” After Cynthia died, the cemetery was
willing to include those words, but not the words that de-
scribed Cynthia's relationship to Sherry: “ `beloved life part-
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ner.' ” N. Knauer, Gay and Lesbian Elders 102 (2011).
There are many such stories, too many to tell here. And
after today, too many to come.
I fear that the symbolic damage of the Court's opinion is
done. But that does not mean that we are powerless in the
face of the decision. The meaning of our Constitution is
found not in any law volume, but in the spirit of the people
who live under it. Every business owner in America has a
choice whether to live out the values in the Constitution.
16
The potential implications of the Court's logic are deeply troubling.
Would Runyon v. McCrary have come out differently if the schools had
argued that accepting Black children would have required them to create
original speech, like lessons, report cards, or diplomas, that they deeply
objected to? What if the law frm in Hishon v. King & Spalding had
argued that promoting a woman to the partnership would have required
it to alter its speech, like letterhead or court flings, in ways that it would
rather not? Once you look closely, “compelled speech” (in the majority's
facile understanding of that concept) is everywhere.
640 303 CREATIVE LLC v. ELENIS
Sotomayor, J., dissenting
Make no mistake: Invidious discrimination is not one of them.
“[D]iscrimination in any form and in any degree has no justi-
fable part whatever in our democratic way of life.” Kore-
matsu v. United States, 323 U. S. 214, 242 (1944) (Murphy, J.,
dissenting). “It is unattractive in any setting but it is ut-
terly revolting among a free people who have embraced
the principles set forth in the Constitution of the United
States.” Ibid.
The unattractive lesson of the majority opinion is this:
What's mine is mine, and what's yours is yours. The lesson
of the history of public accommodations laws is altogether
different. It is that in a free and democratic society, there
can be no social castes. And for that to be true, it must be
true in the public market. For the “promise of freedom” is
an empty one if the Government is “powerless to assure that
a dollar in the hands of [one person] will purchase the same
thing as a dollar in the hands of a[nother].” Jones v. Alfred
H. Mayer Co., 392 U. S. 409, 443 (1968). Because the Court
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today retreats from that promise, I dissent.
Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
Page Proof Pending Publication
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
None