(Slip Opinion) OCTOBER TERM, 2022 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
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-Discrimi-
nation Act to compel her—in violation of the First Amendment—to cre-
ate websites celebrating marriages she does not endorse. To clarify
her rights, Ms. Smith filed 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 be-
tween 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
enumerated trait. Colo. Rev. Stat. §24–34–601(2)(a). The law defines
“public accommodation” broadly to include almost every public-facing
business in the State. §24–34–601(1). Either state officials 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 regard-
less of classifications such as race, creed, sexual orientation, and gen-
der” and “will gladly create custom graphics and websites” for clients
of any sexual orientation; she will not produce content that “contra-
dicts 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 “expres-
sive” and her “original, customized” creations “contribut[e] to the over-
all message” her business conveys “through the websites” it creates;
the wedding websites she plans to create “will be expressive in nature,”
2 303 CREATIVE LLC v. ELENIS
Syllabus
will be “customized and tailored” through close collaboration with in-
dividual 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 art-
work;” and “[t]here are numerous companies in the State of Colorado
and across the nation that offer custom website design services.”
Ultimately, the district court held that Ms. Smith was not entitled
to the injunction she sought, and the Tenth Circuit affirmed.
Held: The First Amendment prohibits Colorado from forcing a website
designer to create expressive designs speaking messages with which
the designer disagrees. Pp. 6–26.
(a) 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
(internal quotation marks omitted). The freedom to speak is among
our inalienable rights. The freedom of thought and speech is “indis-
pensable 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 fixed star in our constitutional constellation,”
West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642, it is the prin-
ciple that the government may not interfere with “an uninhibited mar-
ketplace 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
to salute the Nation’s flag and recite the Pledge of Allegiance “in-
vad[ed] the sphere of intellect and spirit which it is the purpose of the
First Amendment . . . to reserve from all official control.” 319 U. S., at
642. State authorities had “transcend[ed] constitutional limitations on
their powers.” 319 U. S., at 642. In Hurley v. Irish-American Gay,
Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, the Court
held that Massachusetts’s public accommodations statute could not be
used to force veterans organizing a parade in Boston to include a group
of gay, lesbian, and bisexual individuals because the parade was pro-
tected 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
Amendment protection. 530 U. S., at 656. The Court found that forc-
ing the Scouts to include Mr. Dale would undoubtedly “interfere with
[its] choice not to propound a point of view contrary to its beliefs.” Id.,
Cite as: 600 U. S. ____ (2023) 3
Syllabus
at 654.
These cases illustrate that the First Amendment protects an indi-
vidual’s right to speak his mind regardless of whether the government
considers his speech sensible and well intentioned or deeply “mis-
guided,” Hurley, 515 U. S., at 574, and likely to cause “anguish” or “in-
calculable grief,” Snyder v. Phelps, 562 U. S. 443, 456. 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. Pp. 6–9.
(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
promote the couple’s wedding and unique love story” and those that
“celebrat[e] and promot[e]” what Ms. Smith understands to be a mar-
riage. Speech conveyed over the internet, like all other manner of
speech, qualifies 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’ stipulations, including that Ms. Smith intends to produce a
final story for each couple using her own words and original artwork.
While Ms. Smith’s speech may combine with the couple’s in a final
product, an individual “does not forfeit constitutional protection
simply by combining multifarious 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
Circuit 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
consistent with the Constitution, this Court’s First Amendment prec-
edents 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 mes-
sage with which they disagreed. Here, Colorado seeks to put Ms.
Smith to a similar choice. If she wishes to speak, she must either speak
4 303 CREATIVE LLC v. ELENIS
Syllabus
as the State demands or face sanctions for expressing her own beliefs,
sanctions that may include compulsory participation in “remedial . . .
training,” filing periodic compliance reports, and paying monetary
fines. That is an impermissible abridgement 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 tol-
erates none of that. To be sure, public accommodations laws play a
vital role in realizing the civil rights of all Americans, and govern-
ments in this country have a “compelling interest” in eliminating dis-
crimination in places of public accommodation. Roberts v. United
States Jaycees, 468 U. S. 609, 628. This Court has recognized that
public accommodations laws “vindicate the deprivation of personal dig-
nity that surely accompanies denials of equal access to public estab-
lishments.” Heart of Atlanta Motel, Inc. v. United States, 379 U. S.
241, 250 (internal quotation marks omitted). Over time, governments
in this country have expanded public accommodations laws in notable
ways. Statutes like Colorado’s grow from nondiscrimination rules the
common law sometimes imposed on common carriers and places of tra-
ditional public accommodation 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 discrimination. Today, for example, approxi-
mately half the States have laws like Colorado’s that expressly pro-
hibit discrimination on the basis of sexual orientation. The Court has
recognized this is “unexceptional.” Masterpiece Cakeshop, Ltd. v. Col-
orado 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 Constitution. In particular, this
Court has held, public accommodations statutes can sweep too broadly
when deployed to compel speech. See, e.g., Hurley, 515 U. S., at 571,
Cite as: 600 U. S. ____ (2023) 5
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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.
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 in-
terest because she plans to offer “unique services” that are, “by defini-
tion, unavailable elsewhere.” 6 F. 4th, at 1179–1180 (internal quota-
tion 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 violation of the First Amendment. Pp. 9–15.
(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 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
tailored” 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 cor-
porate 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 “pro-
tected characteristics” of certain customers. But the parties’ stipula-
6 303 CREATIVE LLC v. ELENIS
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tions state, to the contrary, that Ms. Smith will gladly conduct busi-
ness with those having protected characteristics so long as the custom
graphics 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 vi-
olence, demeaning another person, or promoting views inconsistent
with her religious commitments.
The First Amendment’s protections belong to all, not just to speak-
ers whose motives the government finds 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 significance. 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 com-
plex place where all persons are free to think and speak as they wish,
not as the government demands. Colorado cannot deny that promise
consistent with the First Amendment. Pp. 15–19, 24–25.
6 F. 4th 1160, reversed.
GORSUCH, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and THOMAS, ALITO, KAVANAUGH, and BARRETT, JJ., joined. SO-
TOMAYOR, J., filed a dissenting opinion, in which KAGAN and JACKSON,
JJ., joined.
Cite as: 600 U. S. ____ (2023) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
United States Reports. Readers 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.
SUPREME COURT OF THE UNITED STATES
_________________
No. 21–476
_________________
303 CREATIVE LLC, ET AL., PETITIONERS v.
AUBREY ELENIS, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
[June 30, 2023]
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 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 its law to compel an individual to create speech she
does not believe. The question we face is whether that
course violates the Free Speech Clause of the First Amend-
ment.
I
A
Through her business, 303 Creative LLC, Lorie Smith of-
fers website and graphic design, marketing advice, and so-
cial media management services. Recently, she decided to
expand 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
2 303 CREATIVE LLC v. ELENIS
Opinion of the Court
websites will discuss how the couple met, explain their
backgrounds, families, and future plans, and provide infor-
mation about their upcoming wedding. All of the text and
graphics on these websites will be “original,” “customized,”
and “tailored” creations. Id., at 187a. The websites will be
“expressive in nature,” designed “to communicate a partic-
ular 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 displayed on every one. Id., at 187a.
While Ms. Smith has laid the groundwork for her new
venture, 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
anyone—whether that means generating works that en-
courage violence, demean another person, or defy her reli-
gious beliefs by, say, promoting atheism. See ibid.; see also
Tr. of Oral Arg. 19–20. Ms. Smith does not wish to do oth-
erwise now, but she worries Colorado has different plans.
Specifically, she worries that, if she enters the wedding
website business, the State will force her to convey mes-
sages inconsistent 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 quar-
ters. But, she 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 filed a lawsuit in federal
Cite as: 600 U. S. ____ (2023) 3
Opinion of the Court
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 first had to establish her stand-
ing to sue. That required her to show “a credible threat”
existed 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
defines a “public accommodation” broadly to include almost
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
services to any customer based on his race, creed, disability,
sexual orientation, or other statutorily enumerated trait.
§24–34–601(2)(a). Either state officials 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 on-
going compliance reports to state officials. See Masterpiece
Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 584 U. S.
___, ___ (2018) (slip op., at 8).1
——————
1 In addition to the Accommodation Clause, CADA contains a “Com-
munication Clause” that prohibits a public accommodation from “pub-
lish[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-
4 303 CREATIVE LLC v. ELENIS
Opinion of the Court
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 celebrating
marriages she does not endorse. 6 F. 4th 1160, 1173–1174
(CA10 2021). As evidence, Ms. Smith pointed to Colorado’s
record of past enforcement actions under CADA, including
one that worked its way to this Court five years ago. See
Masterpiece Cakeshop, 584 U. S., at ___ (slip op., at 9); see
also App. 25–155 (discussing Colorado’s other past enforce-
ment 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 classifications such as race, creed, sexual ori-
entation, and gender,” and she “will gladly create
custom graphics and websites” for clients of any sex-
ual orientation. App. to Pet. for Cert. 184a.
She will not produce content that “contradicts bibli-
cal 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 convic-
tion. 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.
——————
tected classification. 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 au-
thority to apply the Communication Clause to Ms. Smith stands or falls
with its authority to apply the Accommodation Clause, see Brief for Re-
spondents 44–45, we focus our attention on the Accommodation Clause.
Cite as: 600 U. S. ____ (2023) 5
Opinion of the Court
Just like the other services she provides, the wed-
ding websites Ms. Smith plans to create “will be ex-
pressive in nature.” Id., at 187a.
Those wedding websites will be “customized and tai-
lored” through close collaboration with individual
couples, and they will “express Ms. Smith’s and 303
Creative’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] origi-
nal artwork.” Id., at 187a.
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
Circuit. 6 F. 4th, at 1168. For its part, the Tenth Circuit
held that Ms. Smith had standing to sue. In that court’s
judgment, she had established a credible threat that, if she
follows through on her plans to offer wedding website ser-
vices, 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.,
Masterpiece Cakeshop”; that anyone in the State may file a
complaint against Ms. Smith and initiate “a potentially
burdensome 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
6 303 CREATIVE LLC v. ELENIS
Opinion of the Court
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 rea-
soned, Colorado had to satisfy “strict scrutiny” before com-
pelling 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 in-
terest. Ibid. Ultimately, a divided panel concluded that the
State had carried these burdens. As the majority saw it,
Colorado has a compelling interest in ensuring “equal ac-
cess to publicly available goods and services,” and no option
short of coercing speech from Ms. Smith can satisfy that in-
terest because she plans to offer “unique services” that are,
“by definition, unavailable 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 qualified 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 government to
“regulate the messages communicated by all artists”—a re-
sult he called “unprecedented.” Id., at 1204.
We granted certiorari to review the Tenth Circuit’s dispo-
sition. 595 U. S. ___ (2022).
II
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 omit-
ted). They did so because they saw the freedom of speech
“both as an end and as a means.” Whitney v. California,
Cite as: 600 U. S. ____ (2023) 7
Opinion of the Court
274 U. S. 357, 375 (1927) (Brandeis, J., concurring); see also
12 The Papers 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 be-
cause the freedom 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 flourish, the framers understood, we may test and
improve our own thinking both as individuals and as a Na-
tion. For all these reasons, “[i]f there is any fixed star in
our constitutional constellation,” 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,” McCullen v. Coakley, 573 U. S. 464,
476 (2014) (internal quotation 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 flag
and recite the Pledge of Allegiance. If the students refused,
the State threatened to expel them and fine 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
arrived here, this Court offered a firm response. In seeking
to compel students to salute the flag and recite a pledge, the
Court held, state authorities had “transcend[ed] constitu-
tional 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 reserve from
all official 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,
8 303 CREATIVE LLC v. ELENIS
Opinion of the Court
and bisexual individuals in their event. The group argued
that Massachusetts’s public accommodations statute enti-
tled 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 reversed. Id., at 581. Whatever state law may de-
mand, this Court explained, the parade was constitution-
ally 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 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 scout-
master, 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 ex-
pressive 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 the government considers 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 (2011). Equally, the
First Amendment 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 com-
pel a person to speak its own preferred messages. See
Cite as: 600 U. S. ____ (2023) 9
Opinion of the Court
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) (slip op., at 8). Nor does it matter whether
the government seeks to compel a person to speak its mes-
sage when he would prefer to remain 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. 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 flows
directly from the parties’ stipulations. They have stipu-
lated 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 “cele-
brate and promote the couple’s wedding and unique love
story” and to “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,
10 303 CREATIVE LLC v. ELENIS
Opinion of the Court
870 (1997). All manner of speech—from “pictures, films,
paintings, drawings, and engravings,” to “oral utterance
and the printed word”—qualify for the First Amendment’s
protections; no less can hold true when it comes to speech
like Ms. Smith’s conveyed over the Internet. Kaplan v. Cal-
ifornia, 413 U. S. 115, 119–120 (1973); see also Shurtleff v.
Boston, 596 U. S. ___, ___–___ (2022) (slip op., at 7–8)
(flags); 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).
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 in-
tends to “ve[t]” each prospective project to determine
whether it is one she is willing to endorse. Id., at 185a. She
will consult with clients to discuss “their unique stories as
source material.” Id., at 186a. And she will produce a final
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 final
product. But for purposes of the First Amendment that
changes nothing. An individual “does not forfeit constitu-
tional 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
Amendment speech, Colorado seeks to compel speech Ms.
Smith does not wish to provide. As the Tenth Circuit ob-
served, 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
Cite as: 600 U. S. ____ (2023) 11
Opinion of the Court
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 con-
sistent with the Constitution, our First Amendment prece-
dents laid out above teach otherwise. In Hurley, the Court
found that Massachusetts impermissibly compelled speech
in violation of the First Amendment when it sought to force
parade organizers to accept participants who would “affec[t]
the[ir] message.” 515 U. S., at 572. In Dale, the Court held
that New Jersey intruded on the Boy Scouts’ First Amend-
ment rights when it tried to require the group to “propound
a point of view contrary to its beliefs” by directing its mem-
bership choices. 530 U. S., at 654. And in Barnette, this
Court found impermissible coercion when West Virginia re-
quired schoolchildren to recite a pledge that contravened
their convictions 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 beliefs, sanctions that may include compulsory par-
ticipation in “remedial . . . training,” filing periodic compli-
ance reports as officials deem necessary, and paying mone-
tary fines. App. 120; supra, at 3. Under our precedents,
that “is enough,” more than enough, to represent an imper-
missible 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
12 303 CREATIVE LLC v. ELENIS
Opinion of the Court
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 be-
lieve on pain of penalty. The government could require “an
unwilling Muslim movie director to make a film with a Zi-
onist message,” or “an atheist muralist to accept a commis-
sion celebrating Evangelical zeal,” so long as they would
make films 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
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 Cre-
ative Professionals et al. as Amici Curiae 5–10; Brief for
First Amendment 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 elim-
inating discrimination in places of public accommodation.
Roberts v. United States Jaycees, 468 U. S. 609, 628 (1984);
see also Hurley, 515 U. S., at 571–572. This Court has rec-
ognized, too, that public accommodations laws “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) (internal quotation marks omitted); see also, e.g.,
Katzenbach v. McClung, 379 U. S. 294 (1964); Newman v.
Cite as: 600 U. S. ____ (2023) 13
Opinion of the Court
Piggie Park Enterprises, Inc., 390 U. S. 400 (1968) (per cu-
riam).
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 enterprises
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 Un-
ion Telegraph Co., 154 U. S. 1, 14 (1894). Over time, some
States, Colorado included, have expanded the reach of these
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 defining 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 ___ (slip
——————
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)
14 303 CREATIVE LLC v. ELENIS
Opinion of the Court
op., at 10). States may “protect gay persons, just as [they]
can protect other classes of individuals, in acquiring what-
ever products and services they choose on the same terms
and conditions as are offered to other members of the pub-
lic. And there 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 (Tymkovich, C. J., dissenting). Consistent with all of
this, Ms. Smith herself recognizes that Colorado and other
States are generally free to apply their public accommoda-
tions laws, including their provisions protecting gay per-
sons, 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’ public accommodations law,
but made plain it could not be “applied to expressive activ-
ity” 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
Constitution collide, there can be no question which must
prevail. 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
——————
(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 governments have enacted similar rules).
Cite as: 600 U. S. ____ (2023) 15
Opinion of the Court
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].” Hur-
ley, 515 U. S., at 573; see Dale, 530 U. S., at 650–656. Were
the rule otherwise, the better the artist, the finer the writer,
the more unique his talent, the more easily his voice could
be conscripted to disseminate the government’s preferred
messages. That would not respect the First Amendment;
more nearly, it would spell its demise.
IV
Before us, Colorado appears to distance itself from the
Tenth Circuit’s reasoning. Now, the State seems to
acknowledge that the First Amendment does forbid it from
coercing Ms. Smith to create websites endorsing same-sex
marriage 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 affirmance.
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
she does endorse for marriages she does not. She sells a
product to some, the State reasons, so she must sell the
16 303 CREATIVE LLC v. ELENIS
Opinion of the Court
same product to all. Brief for Respondents 15, 20. At bot-
tom, Colorado’s theory rests on a belief that the Tenth Cir-
cuit erred at the outset when it said this case implicates
pure speech. Id., at 19. Instead, Colorado says, this case
involves only the sale of an ordinary commercial product
and any burden on Ms. Smith’s speech is purely “inci-
dental.” 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 Amend-
ment scrutiny. In places, the dissent seems to advance the
same line of argument. Post, at 29 (opinion of SOTOMAYOR,
J.).
This alternative theory, however, is difficult to square
with the parties’ stipulations. As we have seen, the State
has stipulated that Ms. Smith does not seek to sell an ordi-
nary commercial good but intends to create “customized
and tailored” speech for each couple. App. to Pet. for Cert.
181a, 187a. The State has stipulated that “[e]ach website
303 Creative designs and creates is an original, customized
creation for each client.” Id., at 181a. The State has stipu-
lated, too, that Ms. Smith’s wedding websites “will be ex-
pressive in nature, using text, graphics, and in some cases
videos to celebrate and promote the couple’s wedding and
unique love story.” Id., at 187a. As the case comes to us,
then, Colorado 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
company in which she is “the sole member-owner.” Id., at
181a; see also post, at 33 (opinion of SOTOMAYOR, J.) (em-
phasizing 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 accepts commissions from the public does the same?
Many of the world’s great works of literature and art were
Cite as: 600 U. S. ____ (2023) 17
Opinion of the Court
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 every-
thing from movie producers to book publishers to newspa-
pers. See, e.g., Joseph Burstyn, Inc., 343 U. S., at 497–503;
Simon & Schuster, Inc. v. Members of N. Y. State Crime Vic-
tims 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 26–27, 31–32 (opinion of SOTOMAYOR, J.)
(reciting the same argument). But once more, the parties’
stipulations speak differently. The parties agree that Ms.
Smith “will gladly create custom graphics and websites for
gay, lesbian, or bisexual clients or for organizations run by
gay, 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 an-
other person, or promoting views inconsistent with her re-
ligious commitments. 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 finds wor-
thy; its protections belong to all, including to speakers
whose motives others may find 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 ir-
relevant” (internal quotation marks omitted)); National So-
cialist Party of America v. Skokie, 432 U. S. 43, 43–44
18 303 CREATIVE LLC v. ELENIS
Opinion of the Court
(1977) (per curiam) (upholding free-speech rights of partic-
ipants in a Nazi parade); Snyder, 562 U. S., at 456–457
(same for protestors of a soldier’s funeral).3
Failing all else, Colorado suggests that this Court’s deci-
sion in FAIR supports affirmance. See also post, at 25–26
(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 potential employers. 547 U. S., at 51–52, 58. The
only expressive 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 reasoned, compelled speech of this sort was “inci-
dental” and a “far cry” from the speech at issue in our “lead-
ing First Amendment precedents [that] have established
the principle that freedom of speech prohibits the govern-
ment from telling people what they must say.” Ibid.; see
also NIFLA, 585 U. S., at ___ (slip op., at 8).
It is a far cry from this case too. To be sure, our cases
have held that the government may sometimes “requir[e]
——————
3 The dissent labels the distinction between status and message “amus-
ing” and “embarrassing.” Post, at 32. But in doing so, the dissent ignores
a fundamental feature of the Free Speech Clause. While it does not pro-
tect 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 dis-
sent’s derision is no answer to any of this. It ignores, too, the fact that
Colorado itself has, in other contexts, distinguished status-based dis-
crimination (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” else-
where in its opinion. Post, at 31, n. 11.) Nor is the distinction unusual
in societies committed both to nondiscrimination rules and free expres-
sion. 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 dissent really find all that amusing and embarrassing?
Cite as: 600 U. S. ____ (2023) 19
Opinion of the Court
the dissemination of purely factual and uncontroversial in-
formation,” particularly in the context of “commercial ad-
vertising.” Hurley, 515 U. S., at 573 (internal quotation
marks omitted); see also NIFLA, 585 U. S., at ___ (slip op.,
at 8); Riley v. National Federation of Blind of N. C., Inc.,
487 U. S. 781, 795–796 (1988). But this case involves noth-
ing 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 po-
litical and religious significance. Barnette, 319 U. S., at
634. And that, FAIR reaffirmed, is something the First
Amendment does not tolerate. No government, FAIR rec-
ognized, may affect a “speaker’s message” by “forc[ing]” her
to “accommodate” other views, 547 U. S., at 63; no govern-
ment may “ ‘alter’ ” the “ ‘expressive content’ ” of her mes-
sage, id., at 63–64 (alteration omitted); and no government
may “interfer[e] with” her “desired message,” id., at 64.
V
It is difficult 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 7–13, and the strides
gay Americans have made towards securing equal justice
under law, post, at 14–17. 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 finally 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 Col-
orado wishes to regulate Ms. Smith’s “conduct,” not her
speech. Post, at 24–29. 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
20 303 CREATIVE LLC v. ELENIS
Opinion of the Court
seeks to compel “pure speech,” 6 F. 4th, at 1176. The dis-
sent chides us for deciding a pre-enforcement challenge.
Post, at 23. But it ignores the Tenth Circuit’s finding that
Ms. Smith faces a credible threat of sanctions unless she
conforms 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 24, 26–30, 32–33.
All despite the Tenth Circuit’s finding that Colorado in-
tends to force Ms. Smith to convey a message she does not
believe with the “very purpose” of “[e]liminating . . . ideas”
that differ from its own. 6 F. 4th, at 1178.4
Nor does the dissent’s reimagination end there. It claims
that, “for the first 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 1; see also id., at 26, n. 10,
35. Never mind that we do no such thing and Colorado itself
has stipulated Ms. Smith will (as CADA requires) “work
with all people regardless of . . . sexual orientation.” App.
to Pet. for Cert. 184a. Never mind, too, that it is the dissent
that would have this Court do something truly novel by al-
lowing a government to coerce an individual to speak con-
trary to her beliefs on a significant issue of personal convic-
tion, 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 Communi-
cation Clause.” Post, at 26. This despite the fact the parties
and the Tenth Circuit recognized that Ms. Smith’s Commu-
nication 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 Communi-
cation Clause and the Tenth Circuit afforded it just three
——————
4 Perplexingly, too, the dissent suggests that, by recounting the Tenth
Circuit’s conclusion on this score, we “misunderstan[d] this case” and
“invo[ke] . . . Orwellian thought policing.” Post, at 34, n. 14.
Cite as: 600 U. S. ____ (2023) 21
Opinion of the Court
paragraphs in its free-speech analysis. See Brief for Re-
spondents 44–45; 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 firms to
refuse women admission into partnership, restaurants to
deny service to Black Americans, or businesses seeking em-
ployees to post something like a “White Applicants Only”
sign. Post, at 1, 16–21, 26, 28–29, 32, and n. 13, 37. Pure
fiction all.
In some places, the dissent gets so turned around about
the facts that it opens fire 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 cus-
tomer’s protected status, post, at 27, 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
include,” post, at 28. 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, sta-
tioners, and others, asking if they too provide expressive
services covered by the First Amendment. Post, at 27–29,
31–32, 37. But those cases are not this case. Doubtless,
determining what qualifies as expressive activity protected
——————
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 significance—the First Amendment implications be-
come 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 26, n. 10. Nor do the parties discuss anything of the sort in their stip-
ulations.
22 303 CREATIVE LLC v. ELENIS
Opinion of the Court
by the First Amendment can sometimes raise difficult ques-
tions. 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 recog-
nized her services involve “pure speech.” See supra, at 6, 9.
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 han-
dling of the facts. Take its remarkable suggestion that a
government 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 Amendment liberties. Post, at 26–35. Far from em-
bracing a notion like that, our cases have rejected it time
after time—including in the context of public accommoda-
tions laws. See Parts II–IV, supra; FAIR, 547 U. S., at 61–
64 (no government may affect a “speaker’s own message” by
“forc[ing]” her to “accommodate” views she does not hold);
Hurley, 515 U. S., at 563, 566 (using a public accommoda-
tions law to compel parade organizers to include speech
they did not believe was no mere “ ‘incidental’ ” infringe-
ment on First Amendment rights); Dale, 530 U. S., at 659
(employing a public accommodations law to require the Boy
Scouts to alter their admissions policies had more than “an
incidental effect on protected speech”).6
——————
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 24–27
(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 “pecu-
liar[ly]” to compel expressive activity. Hurley v. Irish-American Gay,
Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 572 (1995).
Cite as: 600 U. S. ____ (2023) 23
Opinion of the Court
When it finally gets around to discussing these control-
ling precedents, the dissent offers a wholly unpersuasive
attempt to distinguish them. The First Amendment protec-
tions furnished in Barnette, Hurley, and Dale, the dissent
declares, were limited to schoolchildren and “nonprofit[s],”
and it is “dispiriting” to think they might also apply to Ms.
Smith’s “commercial” activity. Post, at 32–35. But our
precedents endorse nothing like the limits the dissent
would project on them. Instead, as we have seen, the First
Amendment extends to all persons engaged in expressive
conduct, including those who seek profit (such as
speechwriters, artists, and website designers). See supra,
at 16–17. If anything is truly dispiriting here, it is the dis-
sent’s failure to take seriously this Court’s enduring com-
mitment to protecting the speech rights of all comers, no
matter how controversial—or even repugnant—many may
find 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, notwith-
standing [her] sincere objection to doing so”—and the dis-
sent would force her to comply with that demand. Post, at
29–30. Even as it does so, however, the dissent refuses to
acknowledge 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
——————
The dissent notes that our case law has not sustained every First Amend-
ment objection to an antidiscrimination rule, as with a law firm that
sought to exclude women from partnership. Post, at 19–21 (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
significance. Boy Scouts of America v. Dale, 530 U. S. 640, 648–653
(2000).
24 303 CREATIVE LLC v. ELENIS
Opinion of the Court
film with a Zionist message,” they could compel “an atheist
muralist to accept a commission celebrating Evangelical
zeal,” and they could require a gay website designer to cre-
ate websites for a group advocating against same-sex mar-
riage, so long as these speakers would accept commissions
from the public with different messages. 6 F. 4th, at 1199
(dissenting opinion). Perhaps the dissent finds these possi-
bilities untroubling because it trusts state governments to
coerce only “enlightened” speech. But if that is the calcula-
tion, it is a dangerous one indeed.7
The dissent is right about one thing—“[w]hat a differ-
ence” time can make. See post, at 2 (internal quotation
marks omitted). Eighty years ago in Barnette, this Court
affirmed that “no official, high or petty, can prescribe what
shall be 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 unpopular; at the time, the world was at war and
many thought respect for the flag 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
——————
7 Perhaps the dissent finds these possibilities untroubling for another
reason. It asserts that CADA does not apply to “[m]any filmmakers, vis-
ual artists, and writers” because they do not “hold out” their services to
the public. Post, at 27. But the dissent cites nothing to support its claim
and instead, once more, fights the facts. As we have seen, Colorado’s law
today applies to “any place of business engaged in any sales to the pub-
lic.” 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 Professionals
et al. as Amici Curiae 5–21. Certainly, Colorado does not advance any-
thing 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).
Cite as: 600 U. S. ____ (2023) 25
Opinion of the Court
which this Nation stands. See Skokie, 432 U. S., at 43–44;
supra, at 17–18. 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 officials to pre-
scribe what shall be offensive.” Masterpiece Cakeshop, 584
U. S., at ___ (slip op., at 16). And just days ago, Members
of today’s dissent joined in holding that the First Amend-
ment restricts how States may prosecute stalkers despite
the “harm[ful],” “low-value,” and “upsetting” nature of their
speech. Counterman v. Colorado, 600 U. S. ___, ___ (2023)
(slip op., at 6); id., at ___ (SOTOMAYOR, J., concurring in part
and concurring in judgment) (slip op., at 5).
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 find the
speaker’s message sympathetic. But “[i]f liberty means an-
ything at all, it means the right to tell people what they do
not want to hear.” 6 F. 4th, at 1190 (Tymkovich, C. J., dis-
senting) (quoting G. Orwell).
*
In this case, Colorado seeks to force an individual to
speak in ways that align with its views but defy her con-
science about a matter of major significance. 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 freedom of speech means all of us will encounter ideas
26 303 CREATIVE LLC v. ELENIS
Opinion of the Court
we consider “unattractive,” post, at 38 (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 complex place where all persons are free to
think and speak as they wish, not as the government de-
mands. Because Colorado seeks to deny that promise, the
judgment is
Reversed.
Cite as: 600 U. S. ____ (2023) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 21–476
_________________
303 CREATIVE LLC, ET AL., PETITIONERS v.
AUBREY ELENIS, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
[June 30, 2023]
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 appli-
cable public accommodations law.” Masterpiece Cakeshop,
Ltd. v. Colorado Civil Rights Comm’n, 584 U. S. ___, ___
(2018) (slip op., at 9). The Court also recognized the “seri-
ous stigma” that would result if “purveyors of goods and ser-
vices 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 ___ (slip op., at 12).
Today, the Court, for the first time in its history, grants
a business open to the public a constitutional right to refuse
to serve members of a protected class. Specifically, the
Court holds that the First Amendment exempts a website-
design company from a state law that prohibits the com-
pany from denying wedding websites to same-sex couples if
the company 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.
2 303 CREATIVE LLC v. ELENIS
SOTOMAYOR, J., dissenting
“What a difference five years makes.” Carson v. Makin,
596 U. S. ___, ___ (2022) (SOTOMAYOR, J., dissenting) (slip
op., at 5). And not just at the Court. Around the country,
there has been a backlash to the movement for liberty and
equality for gender 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 sincere religious beliefs, constitutional
rights to discriminate. The brave Justices who once sat on
this Court decisively rejected those claims.
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 argues, and a majority of the Court agrees, that
because the business offers services that are customized
and expressive, the Free Speech Clause of the First Amend-
ment shields the business from a generally applicable law
that prohibits discrimination in the sale of publicly availa-
ble 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 expression 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 accommodation without unjust discrimination. The
American 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
Cite as: 600 U. S. ____ (2023) 3
SOTOMAYOR, J., dissenting
Disabilities Act of 1990 prohibit discrimination by places of
public accommodation on the basis of race, color, religion,
national origin, or disability.1 All but five 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:
“It is a discriminatory practice and unlawful for a
person, directly or indirectly, to refuse, withhold from,
——————
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 (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. Codified 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).
4 303 CREATIVE LLC v. ELENIS
SOTOMAYOR, J., dissenting
or deny to an individual or a group, because of disabil-
ity, race, creed, color, sex, sexual orientation, gender
identity, gender expression, marital status, national
origin, or ancestry, the full and equal enjoyment of the
goods, services, facilities, privileges, advantages, or ac-
commodations 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
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
beneficial: Protected persons receive “equally effective and
meaningful opportunity to benefit 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 benefits of wide participation in polit-
ical, economic, and cultural life.” Roberts, 468 U. S., at 625.
Cite as: 600 U. S. ____ (2023) 5
SOTOMAYOR, J., dissenting
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
available. “ ‘Discrimination is not simply dollars and cents,
hamburgers 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
because 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).
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 base-
ball team “was not an inability to find 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
learning that the man’s surviving spouse is also a man,
however, the funeral home refuses to deal with the family.
——————
3 Hearings on the Nomination of Ruth Bader Ginsburg To Be Associate
Justice of the Supreme Court of the United States before the Senate
Committee on the Judiciary, 103d Cong., 1st Sess., 139 (1993).
6 303 CREATIVE LLC v. ELENIS
SOTOMAYOR, J., dissenting
Grief stricken, and now isolated and humiliated, the family
desperately searches for another funeral home that will
take the body. They eventually find one more than 70 miles
away. See First Amended Complaint in Zawadski v.
Brewer Funeral 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 tailored to achieve that compelling interest. The
law “responds precisely to the substantive problem which
legitimately concerns the State”: the harm from status-
based discrimination 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.
Comp. Laws §37.2301. Some public accommodations laws,
——————
4 The men in this story are Robert “Bob” Huskey and John “Jack”
Zawadski. 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 find an
alternative 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. ____ (2023) 7
SOTOMAYOR, J., dissenting
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,
restaurants, gas stations, movie theaters, concert halls,
sports arenas, 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 profit 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 nondiscrimination. In particular, the state may en-
sure 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 without unjust discrimination. J. Singer, No Right
To Exclude: 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 refusing, without good reason, to serve a customer.”
Hurley v. Irish-American Gay, Lesbian and Bisexual Group
of Boston, Inc., 515 U. S. 557, 571 (1995) (quoting Lane v.
Cotton, 12 Mod. 472, 485, 88 Eng. Rep. 1458, 1465 (K. B.
8 303 CREATIVE LLC v. ELENIS
SOTOMAYOR, J., dissenting
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 pub-
lic trust for the benefit 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 office, 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 pro-
fession of 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 firmly established in
early American law. See 2 J. Kent, Commentaries on Amer-
ican Law 464–465 (1827); J. Story, Commentaries on the
Law of Bailments §§495, 591 (1832); see also, e.g., Mark-
ham 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. Brewster, 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 13. Tellingly, the
majority cites no common-law case espousing the monopoly
Cite as: 600 U. S. ____ (2023) 9
SOTOMAYOR, J., dissenting
rationale.5 That is because nowhere in the relevant case
law “is monopoly suggested as the distinguishing character-
istic.” E. Adler, Business Jurisprudence, 28 Harv. L. Rev.
135, 156 (1914) (“A distinction based on monopoly would re-
quire proof that the common carrier had some kind of a mo-
nopoly which the private carrier did not have, or that ‘com-
mon’ was synonymous 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 codified 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
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,
720 (1890). In 1885, Colorado adopted “ ‘An Act to Protect
All Citizens in Their Civil Rights,’ which guaranteed ‘full
——————
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 13, 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 before-
hand. 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).
10 303 CREATIVE LLC v. ELENIS
SOTOMAYOR, J., dissenting
and equal enjoyment’ of certain public facilities to ‘all citi-
zens,’ ‘regardless of race, color or previous condition of ser-
vitude.’ ” Masterpiece Cakeshop, 584 U. S., at ___–___ (slip
op., at 4–5) (quoting 1885 Colo. Sess. Laws p. 132). “A dec-
ade later, the [State] expanded the requirement to apply to
‘all other places of public accommodation.’ ” 584 U. S., at
___ (slip op., at 5) (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, advantages, facilities,
and privileges of inns, public conveyances on land or water,
theaters, and other places of public amusement . . . applica-
ble alike to citizens of every race and color, regardless of
any previous condition of servitude.” Act of Mar. 1, 1875,
§1, 18 Stat. 336.
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
replacement 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. ____ (2023) 11
SOTOMAYOR, J., dissenting
In time, the civil rights movement of the mid-20th cen-
tury again demanded racial equality in public places. In
1963, two decades after then–Howard University law stu-
dent Pauli Murray organized sit-ins at cafeterias in Wash-
ington, D. C., a diverse group of students and faculty from
Tougaloo College sat at Woolworth’s lunch counter in Jack-
son, Mississippi. For doing so, they were violently attacked
by a white mob. See A. Moody, Coming of Age in Missis-
sippi 235–240 (1992). Around the country, similar acts of
protest against racial injustice, some big and some small,
sought “to create such a crisis 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 “discrimina-
tion . . . in places of accommodation and public facilities,”
Heart of Atlanta Motel, 379 U. S., at 246, notwithstanding
this Court’s previous declaration of a federal public accom-
modations law to be unconstitutional.
Congress believed, rightly, that discrimination in places
of public accommodation—“the injustice of being arbitrarily
denied 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
therefore 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,
advantages, and accommodations of any place of public ac-
commodation . . . without discrimination . . . on the ground
of race, color, religion, or national origin.” 42 U. S. C.
§2000a. In enacting this landmark civil rights statute, Con-
gress invoked the holding-out rationale from antebellum
common law: “one who employed his private property for
purposes of commercial gain by offering goods or services to
the public must stick to his bargain.” S. Rep. No. 872, at
12 303 CREATIVE LLC v. ELENIS
SOTOMAYOR, J., dissenting
22; see also id., at 9–10 (endorsing Lord Holt’s view in Lane
v. Cotton).
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, financial institu-
tions, and sports. “Just as it did for the civil rights struggle,
public accommodations served as kindling for feminist mo-
bilization.” Id., at 83, 97–104; cf. S. Mayeri, Reasoning
From Race: Feminism, Law, and the Civil Rights Revolu-
tion 9–40 (2011). In response to a movement for women’s
liberation, numerous States banned discrimination in pub-
lic accommodations on the basis of “sex.” See Sepper & Din-
ner 104, nn. 145–147 (collecting statutes). Colorado was
the first State to do so. See 1969 Colo. Sess. Laws ch. 74, p.
200.
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 subordi-
nation 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.
Colker, The Disability Pendulum 22–68 (2005). The center-
piece of this political and social action was the Americans
with Disabilities Act of 1990 (ADA). Title III of the ADA
provides that “[n]o individual shall be discriminated
Cite as: 600 U. S. ____ (2023) 13
SOTOMAYOR, J., dissenting
against on the basis of disability in the full and equal enjoy-
ment of the goods, services, facilities, privileges, ad-
vantages, or accommodations of any place of public accom-
modation.” 42 U. S. C. §12182(a).
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 Accommodations 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). Numerous other States extend such protec-
tions to businesses 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
fundamental 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 without being denied service because of who
you are, then you have come to enjoy the dignity and free-
dom that this principle protects.
14 303 CREATIVE LLC v. ELENIS
SOTOMAYOR, J., dissenting
3
Lesbian, gay, bisexual, and transgender (LGBT) people,
no less than anyone else, deserve that dignity and freedom.
The movement for LGBT rights, and the resulting expan-
sion of state and local laws to secure gender and sexual mi-
norities’ full and equal enjoyment of publicly available
goods and services, is the latest chapter of this great Amer-
ican 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
lesbians were [also] prohibited from most government em-
ployment, barred from military service, excluded under im-
migration 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
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 of-
ten went hand in hand. The police raided bars looking for
gays and lesbians so often that some bars put up signs say-
ing, “ ‘We Do Not Serve Homosexuals.’ ” Id., at 13 (quoting
G. Chauncey, Why Marriage 8 (2004)). LGBT discrimina-
tion 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
Accommodations 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
Cite as: 600 U. S. ____ (2023) 15
SOTOMAYOR, J., dissenting
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, 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 significantly higher for LGBT people, with
transgender persons particularly vulnerable to attack. See
Dept. of Justice, J. Truman & R. Morgan, Violent Victimi-
zation by Sexual Orientation and Gender Identity, 2017–
2020 (2022).
Determined not to live as “social outcasts,” Masterpiece
Cakeshop, 584 U. S., at ___ (slip op., at 9), LGBT people
have risen up. The social movement for LGBT rights has
been long and complex. See L. Faderman, The Gay Revolu-
tion (2015) (Faderman). But if there ever was an “earth-
quake,” it occurred in the final days of June in 1969 at the
Stonewall Inn in Greenwich Village. Id., at 169. The Stone-
wall Inn was a gay bar with a “varied and lively clientele.”
Id., at 171. Its “ ‘unruly’ element” made it “an especially
inviting target” for police raids. J. D’Emilio, Sexual Poli-
tics, Sexual Communities 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 “unnatural 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
16 303 CREATIVE LLC v. ELENIS
SOTOMAYOR, J., dissenting
three drag queens.” D’Emilio 231. “A few minutes later, an
officer 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. 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 institutions.
Faderman 535–629.
One significant change has been the addition of sexual
orientation 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
guarantee them “all the privileges . . . of any other member
of society.” Hearings on S. B. 200 before the House Judici-
ary 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 publicly available goods or services on the basis of
“sexual orientation.” 2008 Colo. Sess. Laws. ch. 341, pp.
1596–1597. About half of the States now provide such pro-
tections.8 It is “ ‘unexceptional’ ” that they may do so. Ante,
at 13 (quoting Masterpiece Cakeshop, 584 U. S., at ___ (slip
op., at 10)). “These are protections taken for granted by
——————
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. ____ (2023) 17
SOTOMAYOR, J., dissenting
most people either because 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 ordinary civic life in a free society.” Romer
v. Evans, 517 U. S. 620, 631 (1996). LGBT people do not
seek any special treatment. All they seek is to exist in pub-
lic. To inhabit public spaces on the same terms and condi-
tions 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
examples 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 association. This Court was unwavering in its rejection
of those claims, as invidious discrimination “has never been
accorded affirmative constitutional protections.” Norwood
v. Harrison, 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.
1
Opponents of the Civil Rights Act of 1964 objected that
the law would force business owners to defy their beliefs.
Cf. ante, at 3. 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 classifications of people.”
110 Cong. Rec. 7778 (1964) (remarks of Sen. Tower). Con-
gress rejected those arguments. Title II of the Act, in par-
ticular, did not invade “rights of privacy [or] of free associ-
ation,” Congress concluded, because the establishments
covered by the law were “those regularly held open to the
18 303 CREATIVE LLC v. ELENIS
SOTOMAYOR, J., dissenting
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
rights by “tak[ing] away the personal liberty of an individ-
ual to run his business as he sees fit 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 dis-
crimination in public accommodations” did not “interfer[e]
with personal 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 “per-
sonal rights of persons in their personal convictions” to
deny services to Black people. Brief for Appellees, O. T.
1964, No. 543, p. 33 (citing, inter alia, West Virginia Bd. of
Ed. v. Barnette, 319 U. S. 624 (1943)). Note that McClung
did not refuse 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 Educa-
tional Fund, Inc., 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 constitu-
tional right to offer Black people a limited menu of his ser-
vices. This Court rejected 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
Cite as: 600 U. S. ____ (2023) 19
SOTOMAYOR, J., dissenting
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
operated” schools had a First Amendment right to exclude
Black children, notwithstanding a federal law against ra-
cial discrimination in contracting. Id., at 168; see 42
U. S. C. §1981. The schools in question offered “educational
services” 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 associ-
ation.” 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 quotations 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
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 desira-
ble.” Ibid.
2
First Amendment rights of expression and association
were also raised to challenge laws against sex discrimina-
tion. In Roberts v. United States Jaycees, the United States
Jaycees sought an exemption from a Minnesota law that
forbids discrimination on the basis of sex in public accom-
modations. The U. S. Jaycees was a civic organization,
20 303 CREATIVE LLC v. ELENIS
SOTOMAYOR, J., dissenting
which until then had denied admission to women. The or-
ganization alleged that applying the law to require it to in-
clude 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 or-
ganization 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 (emphasis added). Thus, “the
right of the Jaycees to decide its own membership” was “in-
separable,” in its view, “from its ability to freely express it-
self.” 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
permitted activity on the basis of viewpoint.” Id., at 623–
624. If the State had applied the law “for the purpose of
hampering 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 dis-
crimination and assuring [the State’s] citizens equal access
to publicly available goods and services.” Ibid. “That goal,”
the Court reasoned, “was unrelated to the suppression of
expression” 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
public. And she took the view that there was a First
Amendment “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
Cite as: 600 U. S. ____ (2023) 21
SOTOMAYOR, J., dissenting
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 expres-
sive; indeed, they consisted of speech. So the law firm ar-
gued that requiring it to consider a woman for the partner-
ship violated its First Amendment rights “of free
expression” and “of commercial association.” Brief for Re-
spondent, O. T. 1983, No. 82–940, pp. 14–18. This Court
rejected that argument. The application of Title VII did not
“infringe constitutional 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 beliefs.” 467 U. S., at 78 (internal quotation
marks omitted); see also supra, at 19 (discussing Runyon,
427 U. S., at 176). The Court reiterated: “ ‘[I]nvidious pri-
vate discrimination . . . has never been accorded affirmative
constitutional protections.’ ” 467 U. S., at 78 (quoting Nor-
wood, 413 U. S., at 470).
II
Battling discrimination is like “battling the Hydra.”
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
22 303 CREATIVE LLC v. ELENIS
SOTOMAYOR, J., dissenting
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 conflates
denial of service and protected expression, is a grave error.
A
303 Creative LLC is a limited liability company that sells
graphic and website designs for profit. 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-profit 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.
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 discrimi-
nate. App. to Pet. for Cert. 188a–189a. In Smith’s view, “it
would violate [her] sincerely held religious beliefs to create
a wedding website for a same-sex wedding because, by do-
ing so, [she] would be expressing a message celebrating and
promoting 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 web-
site to any customer. Colorado, therefore, has never had to
Cite as: 600 U. S. ____ (2023) 23
SOTOMAYOR, J., dissenting
enforce 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
marriage should be reserved to unions between one man
and one woman.” Ante, at 2. 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
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 3–4) 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 4). 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
company 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
sweeping nature of this claim should have led this Court to
reject it.
B
The First Amendment does not entitle petitioners to a
special 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 petitioners may not escape the law by claiming an
expressive interest in discrimination. The First Amend-
ment likewise does not exempt petitioners from the law’s
24 303 CREATIVE LLC v. ELENIS
SOTOMAYOR, J., dissenting
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-
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 fires might forbid burn-
ing a flag and why antitrust laws can prohibit agreements
in restraint of trade.” Sorrell, 564 U. S., at 567 (citation and
internal 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-
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
Creative Non-Violence, 468 U. S. 288, 294, 299 (1984). The
O’Brien standard is satisfied if a regulation is unrelated to
the suppression of expression and “ ‘promotes a substantial
government interest that would be achieved less effectively
Cite as: 600 U. S. ____ (2023) 25
SOTOMAYOR, J., dissenting
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 edu-
cation in receipt of federal funding from denying a military
recruiter “the same access to its campus and students that
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
Amendment infringed the schools’ First Amendment free-
dom of speech. The schools provided recruiting assistance
in the form of emails, notices on bulletin boards, and flyers.
547 U. S., at 60–61. As the Court acknowledged, those ser-
vices “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
military,” 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
provides such speech for other recruiters.” Id., at 62. Thus,
——————
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 19, 22. This would come as a great surprise to the O’Brien Court.
26 303 CREATIVE LLC v. ELENIS
SOTOMAYOR, J., dissenting
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 employ-
ers to remove ‘White Applicants Only’ signs.” Sorrell, 564
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 regula-
tion 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
——————
10 The majority appears to find this discussion of the Communication
Clause upsetting. See ante, at 20–21, 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 po-
sition. 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. ____ (2023) 27
SOTOMAYOR, J., dissenting
individuals in the provision of publicly available goods,
privileges, and services.” Ibid. (emphasis added). The
State confirms 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 19. Nor
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 ser-
vices without regard to customers’ protected characteris-
tics. Id., at 15–16. Any effect on the company’s speech is
therefore “incidental” to the State’s content-neutral regula-
tion 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
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-profit company, the com-
pany need not hold out its goods or services to the public at
large. Many filmmakers, visual artists, and writers never
do. (That is why the law does not require Steven Spielberg
or Banksy to make films or art for anyone who asks. But
cf. ante, at 12, 23–24.) Finally, and most importantly, even
28 303 CREATIVE LLC v. ELENIS
SOTOMAYOR, J., dissenting
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 peo-
ple what they do not want to hear.” Ante, at 25 (internal
quotation 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 Run-
yon, 427 U. S., at 176 (distinguishing between schools’ abil-
ity to express their bigoted view “that racial segregation is
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 flowers 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
characteristic, the full and equal enjoyment of whatever
services the business chooses to offer. That is so even
though portrait 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 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
Cite as: 600 U. S. ____ (2023) 29
SOTOMAYOR, J., dissenting
newlywed gay or lesbian couple, even if she believes the
couple 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
regulation is subject to the standard set forth in O’Brien.
That standard is easily satisfied here because the law’s ap-
plication “promotes a substantial government interest that
would be achieved less effectively absent the regulation.”
FAIR, 547 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 publicly available goods and services” is “unre-
lated to the suppression 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 prohibit-
ing only “acts of invidious discrimination in the distribution
of publicly available goods, services, and other advantages,”
the law “responds precisely to the substantive problem
which legitimately 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 4–7.
C
The Court reaches the wrong answer in this case because
it asks the wrong questions. The question is not whether
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
30 303 CREATIVE LLC v. ELENIS
SOTOMAYOR, J., dissenting
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 bur-
den on speech is “plainly incidental” to a content-neutral
regulation 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.
Army recruiter will meet interested students in Room 123
at 11 a.m.”). Ante, at 18 (internal quotation marks omitted).
This attempt fails twice over. First, the law schools in FAIR
alleged that the Solomon Amendment required them to cre-
ate and disseminate speech propagating the military’s mes-
sage, which they deeply objected to, and to include military
speakers in on- and off-campus forums (if the schools pro-
vided 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 compul-
sion was nevertheless “incidental” to the Amendment’s reg-
ulation of conduct: It would occur only “if, and to the ex-
tent,” 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 was not be-
cause his message was factual or uncontroversial. But cf.
ante, at 19. 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.
Cite as: 600 U. S. ____ (2023) 31
SOTOMAYOR, J., dissenting
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 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 17. It will sell only opposite-sex wed-
ding websites; that is its service. Petitioners, however,
“cannot define 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,
——————
11 Because petitioners have never sold a wedding website to anyone,
the record contains only a mockup website. The mockup confirms 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
unconstitutionally intrude upon any protected expression of the website
designer. Yet Smith claims a First Amendment right to refuse to provide
any wedding 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
granting 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); Rob-
erts v. United States Jaycees, 468 U. S. 609, 622–629 (1984).
32 303 CREATIVE LLC v. ELENIS
SOTOMAYOR, J., dissenting
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 define the expressive quality of its goods or ser-
vices to exclude a protected group would nullify public ac-
commodations laws. It would mean that a large retail store
could sell “passport photos for white people.”
The majority protests that Smith will gladly sell her
goods and services to anyone, including same-sex couples.
Ante, at 2, 17. She just will not sell websites for same-sex
weddings. Apparently, a gay or lesbian couple might buy a
wedding website for their straight friends. This logic would
be 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 confirmed, however, that a neutral
regulation of conduct imposes an incidental burden on
speech when the regulation grants a right of equal access
——————
12 The majority tacitly acknowledges the absurdity. At the start of its
opinion, it explains that Smith “decided to expand her offerings to in-
clude services for couples seeking websites for their weddings.” Ante, at 1
(emphasis added).
13 What is “ ‘embarrassing’ ” about this reasoning is not, as the Court
claims, the “distinction between status and message.” Ante, at 18, 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. ____ (2023) 33
SOTOMAYOR, J., dissenting
that requires the regulated party to provide speech only if,
and to the extent, it provides such speech for others. Supra,
at 25–26, 29–30.
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-
profit expressive associations in ways that directly bur-
dened 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 incidental to prohibitions on status-based discrim-
ination because the associations did not assert that “mere
acceptance of a member from a particular group would im-
pair [the association’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]
members 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-
firms that the company is free to include or not to include
any message in whatever services it chooses to offer. Supra,
at 26–28. And the company confirms that it plans to engage
in status-based discrimination. Supra, at 22–23, 31–32.
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
34 303 CREATIVE LLC v. ELENIS
SOTOMAYOR, J., dissenting
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 10–11 (internal quotation marks and brackets
omitted).14 That is an astonishing view of the law. It is
contrary to the fact that a law requiring public-facing busi-
nesses to accept all comers “is textbook viewpoint neutral,”
Christian Legal Soc. Chapter of Univ. of Cal., Hastings Col-
lege of Law v. Martinez, 561 U. S. 661, 695 (2010); contrary
to the fact that the Accommodation Clause and the State’s
application of it here allows Smith to include in her com-
pany’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 4–6.
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 law against invidious discrimination in commercial
sales to the public does not conscript her into espousing the
government’s message. It does not “invad[e]” her “sphere of
intellect” or violate her constitutional “right to differ.” Ante,
at 2, 7 (internal quotation marks omitted). All it does is
——————
14 The majority’s repeated invocation of this Orwellian thought policing
is revealing of just how much it misunderstands this case. See ante, at
10–12, 19–20, 24–25 (claiming that the State seeks to “eliminate ideas”
and that it will punish Smith unless she “conforms her views to the
State’s”).
Cite as: 600 U. S. ____ (2023) 35
SOTOMAYOR, J., dissenting
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 pub-
lic marked money. It is to convey the promise of a free and
open society and then take the prize away from the despised
few.” J. Singer, We Don’t Serve Your Kind Here: Public Ac-
commodations 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 to
serve members of a protected class. The Court does so for
the first 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 inflicts 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 hu-
man spirit, at the very core of human dignity.” Ibid. To see
how, imagine a same-sex couple browses the public market
with their child. The market could be online or in a shop-
ping mall. Some stores sell products that are customized
and expressive. The family sees a notice announcing that
services will be refused for same-sex weddings. What mes-
sage does that send? It sends the message that we live in a
society with social castes. It says to the child of the same-
36 303 CREATIVE LLC v. ELENIS
SOTOMAYOR, J., dissenting
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 members
of the public are entitled to inhabit public spaces on equal
terms.
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
backward. A slew of anti-LGBT laws have been passed in
some parts of the country,15 raising the specter of a “bare
. . . desire to harm a politically unpopular group.” Romer,
517 U. S., at 634 (internal quotation marks omitted). This
is especially unnerving when “for centuries there have been
powerful 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 reaffirm 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
——————
15 These laws variously censor discussion of sexual orientation and
gender 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. ____ (2023) 37
SOTOMAYOR, J., dissenting
cannot be limited to discrimination on the basis of sexual
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. Virginia,
388 U. S. 1, 3 (1967). Yet the reason for discrimination need
not even be religious, as this case arises under the Free
Speech Clause. A stationer could refuse to sell a birth an-
nouncement for a disabled couple because she opposes their
having a child. A large retail store could reserve its family
portrait services for “traditional” families. And so on.16
Wedding websites, birth announcements, family por-
traits, 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 cul-
tural meaning. You already heard the story of Bob and
Jack, the elderly gay couple forced to find a funeral home
more than an hour away. Supra, at 5–6, 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 Cyn-
thia was diagnosed, she drew up a will, which authorized
Sherry to make burial arrangements. Cynthia had asked
Sherry to include an inscription on her headstone, listing
the relationships that were important to her, for example,
“daughter, granddaughter, sister, and aunt.” After Cynthia
——————
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 firm 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 filings, in ways that it would
rather not? Once you look closely, “compelled speech” (in the majority’s
facile understanding of that concept) is everywhere.
38 303 CREATIVE LLC v. ELENIS
SOTOMAYOR, J., dissenting
died, the cemetery was willing to include those words, but
not the words that described Cynthia’s relationship to
Sherry: “ ‘beloved life partner.’ ” N. Knauer, Gay and Les-
bian 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.
Make no mistake: Invidious discrimination is not one of
them. “[D]iscrimination in any form and in any degree has
no justifiable part whatever in our democratic way of life.”
Korematsu v. United States, 323 U. S. 214, 242 (1944) (Mur-
phy, J., dissenting). “It is unattractive in any setting but it
is utterly 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 today retreats from that promise, I dissent.