SCOTUS Decision: A Return to Separate but Equal | Opinion

Photo by Ted Eytan, via Wikimedia Commons.

In 1896, the Supreme Court issued one of the most shameful decisions in US history, Plessy vs. Ferguson. Plessy upheld “separate but equal” public accommodations, barring recently freed black people from “white” accommodations including train cars, lodging, and schools, and justified the murderous scourge of Jim Crow laws.

It would take more than 50 years of social upheaval, demonstrations, and civil rights marches before the Court finally admitted it was wrong. In 1954, in Brown vs. Board of Education, the Court overturned Plessy, ruling that separate public accommodations violated the equal protection clause of the 14th Amendment, which holds that no state can “deny to any person within its jurisdiction the equal protection of the laws.”

SCOTUS Carves Out Separate but Equal Public Accommodations for Gays

Last week in 303 Creative LLC, the conservative majority resurrected separate but equal. Determining that states can withhold equal protection of the laws, the Court declared that certain businesses are free to discriminate, and demonstrated that the best way to project and protect religious animus is to recast anti-discrimination laws as "state coercion." 

In 303 Creative, the Supreme Court ruled that web design services - a public accommodation by the court’s definition - are “creative expressions,” which grants designers a "free speech" carve out from anti-discrimination laws. A web designer who opposes gay marriage on religious grounds can both refuse service to gay couples, and also advertise that “same-sex couples will not be served.” Writing for the majority, Justice Gorsuch scrupulously curated the designer’s justification - her religious objection to gay marriage - and sculpted it into a superficially anodyne "pure speech" analysis.  Echoing political forces from the right, Gorsuch focused on whether the state could “coerce” a designer into making “statements” with which her religion disagreed, recasting the designer’s discrimination as an expression of pure "free speech" rather than an act.

Sotomayor Educates the Court

Dissenting Justice Sotomayor disagreed that web designs are pure “speech.”  Professional web design incorporates standard commercial conduct, code, photos, products, words, and services. The web designer in Colorado chose to profit from a public market established and maintained by laws of the state. She offered to sell her services (design and consultation) and her goods (the finished website) to the public; her personal “expression” and beliefs are incidental to the product and underlying message. Sotomayor presented longstanding precedent from the Court holding that anti-discrimination and accommodations laws don’t target speech, they target conduct, the act of discrimination.

The conservative bloc rejected those arguments in an asymmetrical decision focused exclusively on the designer’s rights, sarcastically dismissing the ‘separate but equal’ implications for the entire LGBT community.

Gorsuch Delivers a Swiss Cheese Analysis

The majority opinion is highly unusual. First, SCOTUS took the case prophylactically, before the designer had even started her web design business, based on a fictional request for service. Foundational “standing” in the case was not based on any injury, imminent or otherwise, it was a “pre-enforcement challenge” based on a set of hypotheticals.

Second, the Colorado Anti-Discrimination Act prohibits public businesses from denying “the full and equal enjoyment” of their goods and services to any customer based on his race, creed, disability, sexual orientation, or other statutorily enumerated trait. Discussing literal ‘public accommodations’ like inns and hotels, Gorsuch suggested they were historically prohibited from discriminating only because they enjoyed market monopolies. There is no known case that limits anti-discrimination to businesses with market monopolies; Gorsuch seems to suggest there should be, implying that small innkeepers already possess the right to turn away groups they don’t like.

Third, the majority dismisses Sotomayor’s “separate but equal” objections as “pure fiction,” and delivers a blue book instruction guide for how you, too, can legally refuse to serve people you don’t like. All you have to do is write about it in the normal course of your business, and the Court will conflate your speech with your service to protect your God-given right to discriminate. If you run an inn, motel or B&B, write on your kiosk that God does not want gay people sharing a bed. If you get sued, stress the creative elements you express in your inn, from your choice of colors and fabrics to the fanciful words you use in business communications. Your speech will be protected by the First A, with the added bonus that gay patrons would rather sleep in their car than stay there.  Ditto chefs, hairdressers, doctors, clothiers, architects, chefs, teachers, designers, lawyers, and administrators. There’s virtually no business or profession that lacks creative expression, so there’s no business that can’t recast its discriminatory bias - against whomever - as protected speech.

The tragedy of 303 Creative is that the majority meted out unequal protection for gay couples without a glance at the 14th Amendment, despite Sotomayor’s bullhorn dissent.  Sotomayor declares this decision a “sad day,” coming at a time when a “slew of anti-LGBT laws have been passed … raising the specter of a bare . . . desire to harm a politically unpopular group.”

The Court has made its religious bias and animus clear. As it did last year in Dobbs, the Court has resurrected the mores of nineteenth century law to relegate certain citizens to second class status. Let the sit-ins begin, and register to vote at


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