Not all businesses are exempted. But the opinion is not limited to the facts of this specific case. Under its reasoning, businesses that offer customized or “expressive” goods can discriminate. And while Smith asserted religion as her motivation, this is a speech case, so it won’t matter whether business owners are motivated to discriminate by sincere religious values, secular bigotry or no reason at all. Antidiscrimination law equally will be seen as targeting their speech. They may deny service and post “No Gay Weddings Served,” reminiscent of the “No Dogs or Jews” signs in businesses of our not-so-distant past.
So what businesses will have this freedom to discriminate based on their speech rights? In recent years, courts have seen lawsuits from videographers, wedding venues, photographers, florists, calligraphers, print shops and bakeries that do not want to serve LGBTQ+ customers. These are all businesses that use images and writing, and therefore expression. Law firms and advertising agencies primarily engage in speech, so they may fit the definition. And many businesses customize their goods. Think dance studios, tutoring services, caterers and hair salons. The boundaries are hopelessly muddy.
Over the last century, businesses at various junctures have thrown all kinds of constitutional claims at the courts in an attempt to discriminate. They have argued that antidiscrimination requirements amounted to involuntary servitude — that is, slavery — prohibited by the 13th Amendment. They have claimed interference in their rights of association, speech and religion. But never before has a commercial business succeeded before the high court.
Friday’s decision throws open the door to a consumer market of denial and humiliation. As Justice Sonia Sotomayor writes in her dissent, “If you have ever taken advantage of a public business without being denied service because of who you are, then you have come to enjoy the dignity and freedom that this principle” — antidiscrimination — “protects.” For many Americans, that dignity and freedom will no longer apply.
Like Black people driving through the Jim Crow South, gay couples planning their weddings will have to shop selectively. Nor is the newfound free speech right established by 303 Creative vs. Elenis limited to sexual orientation. The court’s reasoning could apply equally to race, disability, sex and religion. People across the country may encounter a marketplace where a business could invite them in, only to then slam the door because of who they love, how they look or what they believe.