303 Creative v. Elenis: Can Stand-Alone Dignitary Harm Create a Right to Endorsement and Duty to Endorse? – Emilie Kao

Posted by on Jan 25, 2023 in Per Curiam

303 Creative v. Elenis: Can Stand-Alone Dignitary Harm Create a Right to Endorsement and Duty to Endorse? – Emilie Kao
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303 Creative v. Elenis: Can Stand-Alone Dignitary Harm Create a Right to Endorsement and Duty to Endorse?

Emilie Kao*

All people have inherent dignity and should be treated with respect. However, whether and how courts should address legal claims surrounding dignity are notoriously complicated.[1] Does the government have an interest in protecting citizens from “dignitary harm” – subjective feelings of emotional distress or stigma? If so, does the government’s interest require it to compel or silence the expression of certain views? If so, does the dignity of the person compelled to speak or remain silent matter? Dignitary harm has played important roles in conflicts between religious freedom and anti-discrimination laws in Masterpiece Cakeshop v. Colorado Civil Rights Commission and Fulton v. Philadelphia.[2] And they are at issue again in 303 Creative v. Elenis, a free-speech case that was recently argued at the U.S. Supreme Court.

In 303 Creative, Colorado’s public accommodation law—the Colorado Anti-Discrimination Act (CADA)— requires graphic artist, Lorie Smith, to create websites celebrating same-sex marriage that violate her religious belief that marriage is between one man and one woman. Colorado stipulated that Ms. Smith serves all people, regardless of sexual orientation and that her websites are unique, custom, and expressive; in other words, that she is engaging in pure speech.[3] Like many artists, Ms. Smith chooses each word, visual design, and artistic element to tell a unique story that is consistent with her beliefs, whether about animal rescue, homelessness, or marriage. She wants to design websites to “promote God’s design for marriage.”[4] Therefore, she cannot create websites that celebrate marriages contrary to God’s design for any of her clients, regardless of sexual orientation. Her decisions are always based on the message, not the person.

Colorado claims that it has a compelling interest in ensuring that members of protected classes are shielded from “dignitary harm.” That dignitary harm, though, consists merely in a creative professional declining to endorse their desired message. The Tenth Circuit agreed with Colorado. But in his dissent, Chief Judge Tymkovich warned that, “[l]ike Nineteen Eighty-Four’s Winston Smith, CADA wants Lorie Smith to not only accept government approved speech but also to endorse it.”[5] The Supreme Court should refuse Colorado’s attempt to create a right to endorsement and a corresponding duty to endorse that would compel Ms. Smith to speak messages that violate her conscience. A government interest in protecting citizens from the emotional and moral distress of disagreement is intrinsically distinct from the material and dignitary harms created by status-based denials. Therefore, courts should treat the claims arising from these distinct interests differently.

I.               The Three-Fold Expansion of Anti-discrimination Laws

Claims for a right to endorsement (and duty to endorse) can be traced back to the three-fold expansion of anti-discrimination laws. These laws, including the 1875 Civil Rights Act and the 1964 Civil Rights Act (CRA), were originally enacted to protect the government’s interest in shielding citizens from unequal treatment, based on the immutable characteristic of race, that effectively barred them from accessing essential goods and services.[6]

More recently, states have expanded anti-discrimination laws in three ways: the definition of public accommodations, the number of protected classes, and the legal definition of harm. This three-fold expansion has led America far away from the original purpose of these laws which was to stamp out status-based discrimination and to guarantee equal access to essential goods and services. Anti-discrimination laws as originally conceived did not empower the government to compel or censor speech. 303 Creative offers the Supreme Court an opportunity to bring much-needed clarity to an area of law that is increasingly muddled.

The first expansion by some legislatures was to broaden the definition of public accommodations from inns and traditional common carriers (e.g., trains and buses) to include anyone who offers goods or services (whether for charge or free) to the public, including non-profits and individual sellers on websites like Etsy.[7] Just compare the 1875 Civil Rights Act, which only covered “inns, public conveyances on land or water, theaters, and other places of public amusement” to Minnesota’s law, covering establishments of “any kind, whether licensed or not, whose . . . services . . . are extended, offered, sold, or otherwise made available to the public.”[8]

Courts in some jurisdictions have followed suit and evaluated public-accommodation laws that applied to newspapers, internet search engines, websites, and a law association’s magazine.[9] Nevada recently expanded their law to cover “[a]ny online establishment.”[10] Colorado fits this category too. Not only did Colorado concede that its enforcement officials would interpret its public-accommodation law to cover the web-design firm 303 Creative, but courts in Colorado had already interpreted that law in similarly broad ways.[11]

The second expansion of anti-discrimination laws by local governments dramatically increased the number of protected classes.  For example, Madison, Wisconsin now recognizes 28 protected classes in public accommodations and employment, including political beliefs, physical appearance, and arrest and conviction history.[12] This expansion inevitably swept in objections to what people said rather than who they are. Disagreements between customers and businessowners over endorsement of a particular message that previously might have been resolved through polite referrals instead became fodder for litigation. For example, after Jack Phillips and Masterpiece Cakeshop won their case at the Supreme Court, he was sued by a Colorado lawyer for declining to create a custom cake celebrating a “gender transition.” Other examples include a pro-Israel group suing a progressive bar association for refusing to publish their advertisement.[13] And when a prospective customer asked a lesbian cake artist in Detroit to write “Homosexual Acts are gravely evil” on a cake, the artist feared that she would be sued for violating the local public-accommodation law.[14]

Treating political beliefs as a protected class could broaden legal conflicts even further. Laws already do this in at least 19 jurisdictions.[15] For example, would the government have an interest in recognizing a pro-life customer’s claim of dignitary harm if a pro-abortion tattoo artist declines to celebrate the Supreme Court’s decision in Dobbs using ink? Or would the government have an interest in shielding a Republican voter from feelings of stigma if a Democrat videographer refuses to film a rally promoting his party’s platform? Or would the government have an interest in protecting the dignity of a National Rifle Association (NRA) member if a graphic artist who favors gun control declines to create a custom website celebrating gun ownership? Even if they could obtain services from other artists, according to Colorado’s legal theory, each of these customers would suffer dignitary harms from the referrals.[16]

Now, Colorado seeks to create a third expansion of anti-discrimination law by interpreting CADA to cover stand-alone dignitary harms, even where no material harm (e.g., financial loss or inability to access services) exists. If the Court were to recognize the stand-alone dignitary harm in 303 Creative, it would also need to recognize the dignitary harms to pro-life, Republican, and pro-gun customers. The third expansion of anti-discrimination law would radically depart from the original purpose of anti-discrimination law (guaranteeing equal access to goods and services) and dramatically expand government power to the detriment of individual citizens and the public interest.[17]

II.             Freedom to Disagree with the Government

Governments do not have a legitimate interest in protecting citizens from stand-alone claims of dignitary harm since, simply put, the emotional and moral distress of ethical confrontations are a feature of free society.[18] Unlike during the Jim Crow area when black Americans faced both material and dignitary harms from racial prejudice, new claims arising from disagreements over same-sex marriage are staked on “dignitary harm” alone.

In 303 Creative, Colorado invokes cases of white businessowners who violated the 1964 Civil Rights Act because they opposed racial integration.[19] In two cases cited by Colorado, Anne P. Newman v. Piggie Park and Heart of Atlanta Motel v. U.S., white businessowners denied black customers equal access to food and accommodations to keep customers racially segregated.[20] But comparisons between them and Ms. Smith are wholly inapposite. She believes in the dignity of all people and, as noted, Colorado stipulated that she serves gay customers.[21] Her decisions on what websites to create are based on the message, not the person.

White supremacy permeated American businesses, social institutions, and the law during the Jim Crow era. Efforts to keep black and white Americans from studying in the same classrooms, drinking from the same water fountains, and intermarrying and producing children of mixed racial heritage all flowed from the same poisoned spring. When the Supreme Court unanimously struck down anti-miscegenation laws in Loving v. Virginia, it called race-based distinctions “odious to a free people.”[22]

The Court acknowledged both material and dignitary harms when addressing race-based denials of service. The denials stigmatized black Americans because of who they were, reinforcing an entire social, political, and legal edifice that stymied their upward mobility. In Brown v. Board of Education, the Court recognized that government-mandated racial segregation in public schools generated in black children “a feeling of inferiority as to their status” that denied them equal educational opportunities.[23] Upon ending laws that barred black Americans from serving on juries, the Supreme Court in Strauder v. West Virginia stated that the exclusion “practically” served as a “brand” which implied their “inferiority in civil society” and were “steps towards reducing them to the condition of a subject race.”[24] The CRA and other anti-discrimination laws were intended to bring down an entire edifice of both de jure and de facto racial discrimination which perpetuated the “badges and incidents of slavery” that the Thirteenth Amendment sought to end.[25]

No person should face discrimination based on status as black Americans did. As Northwestern law professor Andrew Koppelman points out, racial discrimination created “choke points” that inflicted both material and dignitary harms.[26] During the Jim Crow era, businessowners sent the message, “We don’t serve your kind,” despicable conduct based solely on status. Today, however, in a country of 330 million people, the current conflicts over sexual orientation in public-accommodation laws are not about businesses denying essential goods and services to individuals based on status. “In all of them, the people who objected to the law at issue were asked directly to facilitate same-sex relationships by providing wedding, adoption or artificial insemination services, counseling, or rental of bedrooms. There have been no claims of a right to simply refuse to deal with gay people.”[27]

Ms. Smith serves everyone. She cannot endorse every message requested of her without violating her conscience. Ms. Smith tells her clients, “I will gladly create custom websites or other art for you. Like other artists, the message must be consistent with my beliefs, my areas of passion, and my own expertise.”[28] When the customer in Detroit requested a cake from the lesbian cake designer that condemned homosexual acts, she also declined to endorse the requested message. An attorney for the LGBTQ Project, ACLU of Michigan, stated that she wasn’t “turning the customer away,” but was within her rights to decline to create an “offensive” message.[29] Choosing whether or not to endorse a message falls into the category of what Jeremy Waldron calls “ethical confrontations,” the open clash between earnestly held opinions about the nature of the good life. Waldron, who supports some regulation of speech, nonetheless argues that the “moral distress” that arises from ethical confrontations “is a positive and healthy sign,” not an example of John Stuart Mill’s “harm principle.”[30]

But Colorado seeks to equate potential moral distress from a businessowner’s decision not to create messages endorsing same-sex marriage as legally cognizable harm.[31] Colorado seeks to put stand-alone dignitary harm claims on par with the comprehensive material and dignitary harms that both the government and society inflicted on black Americans by denying them access to essential goods and services. However, being barred from classrooms, juries, restaurants, or motelsbecause of your skin color is categorically different than being told that someone will not endorse your message.

It is a misuse of state power to shield one citizen from the moral or emotional distress of being told that someone holds a different idea of marriage and cannot endorse that view of marriage. But in its ruling for Colorado, the Tenth Circuit Court of Appeals admitted that “[e]liminating . . . ideas is CADA’s very purpose.”[32] Colorado lacks even a legitimate interest, much less a compelling interest, in misusing anti-discrimination law to eliminate disfavored ideas from the public square. It cannot satisfy even the first prong of the strict-scrutiny standard necessary to overcome the Constitution’s protection of free speech. In fact, Colorado has applied its public-accommodations law in a manner that permits individuals to make decisions based on messages. In Masterpiece Cakeshop, the Supreme Court noted that Colorado allowed three bakeries to deny a request by a religious customer to create cakes with messages that opposed same-sex marriage. [33] Some businesses can refrain from creating and selling speech (if they would not create it or sell it to anyone) without running afoul of CADA. But Colorado refuses to protect Ms. Smith’s choice of messages because she wants to speak about marriage in a way that differs from the state’s view.

Compelling Ms. Smith to endorse Colorado’s view of marriage would stifle pluralism and the public’s ability to engage in open discussion about matters of importance. It would also undermine the Supreme Court’s commitment in Obergefell v. Hodges not to “disparage” those who hold philosophical and religious objections to same-sex marriage that are rooted in “decent and honorable” premises.[34]

III.           Free Speech and the Contraction of Dignitary Harm

When the Court has balanced stand-alone dignitary harms against the First Amendment, it has consistently ruled in favor of freedom. In Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, the Court forbid Massachusetts from forcing parade organizers to include a group with a banner expressing a message about their sexual orientation in a St. Patrick’s Day parade because it would change the parade’s message.[35] The Court stated that “a speaker has the autonomy to choose the content of his own message.”[36] Similarly, in Boy Scouts of America v. Dale, the Court determined that the government could not override the Boy Scouts’ freedom of expressive association because of a Scout leader’s claim of discrimination based on sexual orientation.[37] The organization had the right to express its own values regarding sexual conduct and marriage. Government compulsion would have changed the organization’s intended message.[38]

Colorado’s argument runs contrary to both Hurley and Dale. It also contradicts the Court’s reasoning in dignitary tort cases. In Hustler Magazine v. Falwell, the Court unanimously upheld the magazine’s free-speech right to satirize the Christian preacher and his mother, overruling a finding of intentional infliction of emotional distress (IIED). Justice Rehnquist wrote:

“At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas . . . . The freedom to speak one’s mind is not only an aspect of individual liberty—and thus a good unto itself—but also is essential to the common quest for truth and the vitality of society as a whole. We have therefore been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions.”[39]

In Phelps v. Snyder, the Supreme Court also upheld the reversal of a IIED damage award to a fallen soldier’s family. The Court refused to silence the Westboro Baptist Church—an anti-gay, anti-Catholic group that picketed a Marine funeral—even though Justice Alito described their words as a “vicious verbal assault.”[40]

In “The Puzzle of the Dignitary Torts,” Professors Kenneth S. Abraham and G. Edward White chronicle the decline of defamation and IIED claims after the First Amendment ruling in New York Times v. Sullivan.[41] They conclude that speech that merely causes emotional distress should not be actionable as IIED. “Sometimes people are sarcastic, ridicule others, or build up their own self-esteem at others’ expense. This kind of conduct may not be admired, and it may be criticized, but it is not regarded as beyond the bounds of what is socially acceptable. It does not call into the worth or the dignity of the individual in question and is not actionable.”[42]  Abraham and White do not lament the contraction of dignitary torts, because there was never any underlying unity between the interests that they protected and those protected by other torts. For example, battery and intrusion on solitude protected interests in liberty and autonomy. However, torts of public disclosure and IIED protected interests in avoiding embarrassment or humiliation.[43] Courts had no reason to treat interests in avoiding dignitary injury the same as interests in avoiding physical harm. Therefore, the principles that developed in each tort to protect the distinct interests also remained separate.[44]

Similarly, courts can continue to distinguish between government interests in protecting citizens from status-based discrimination (i.e., “we don’t serve your kind”) from government interests in protecting citizens from the moral or emotional distress of disagreement (i.e., “we can’t create that message for anyone”).  Courts should prevent state actors from censoring or compelling the speech of one citizen to protect another from emotional distress. The vitality of our democracy depends on the free flow of ideas. Therefore, forcing any citizen to speak against his or her own conscience undermines self-government.

Claimants who seek remedies for dignitary torts, such as IIED, often ask courts to censor other citizens. In Texas v. Johnson, the Court stated that the “bedrock principle” underlying the First Amendment is “that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”[45]

But Colorado seeks an even more harmful remedy by asking the Court to compel Ms. Smith to endorse its view of marriage. She believes that doing so would violate her belief in God’s design for marriage. As the Court stated in Janus v. ACFSME:

When speech is compelled . . . additional damage is done . . . [since] individuals are coerced into betraying their convictions. Forcing free and independent individuals to endorse ideas they find objectionable is always demeaning, and for this reason, one of our landmark free speech cases said that a law commanding “involuntary affirmation” of objected-to beliefs would require “even more immediate and urgent grounds” than a law demanding silence.[46]

The Court in 303 Creative should reject Colorado’s attempt to create a right to endorsement and corresponding duty to endorse. Same-sex marriage is embraced by the majority of Americans.[47] And, at the same time, there is still an honest and ongoing debate about marriage. Many Americans disagree with Ms. Smith, and they have the freedom to do so. Likewise, Ms. Smith should also have the freedom to disagree with Colorado, and the government should not be able to force her to express its views to enter the marketplace. The State is duty bound to respect all beliefs and viewpoints of its citizens, even the ones it might not like.

Colorado’s application of CADA prohibits Ms. Smith from creating custom websites consistent with her deepest beliefs. Under the statute, Colorado has the power to issue a cease-and-desist order and fine Ms. Smith if she begins to create websites celebrating marriages that align with her beliefs.[48] Colorado has outwardly demeaned Ms. Smith’s beliefs and stigmatized her by comparing her to racist businessowners. Other citizens have also harassed her with death threats and almost daily hacking attempts on her website. In a national market of over 250,000 graphic designers and a culture that lauds same-sex marriage, no same-sex couple faces obstacles to obtaining wedding websites.[49] As Professor Stephanie Barclay has written, these conflicts involve claims of “reciprocal harms” to dignity.[50] But thus far, Colorado has only recognized the emotional distress to citizens on one side of the ledger .Colorado is forcing Ms. Smith, a free and independent individual, to endorse ideas that she finds objectionable. In the Janus Court’s words, this “is always demeaning.” Ms. Smith should not lose her constitutional right to refrain from speaking because the State fails to recognize the dignity of citizens who hold different views on marriage.

The three-fold expansion of anti-discrimination laws has created confusion about the difference between status-based discrimination and decisions not to endorse particular messages. Colorado seeks to compel Ms. Smith to endorse its view of marriage based on an asserted interest in protecting citizens from dignitary harm. However, the Supreme Court has never regulated speech to protect citizens from emotional distress alone, whether under tort or anti-discrimination law. And for good reason. Permitting stand-alone dignitary harm to create a right to endorsement and corresponding duty to endorse would misapply anti-discrimination law. It would ignore how the government demeans a person by forcing her to speak messages that undermine her own convictions. Treating one citizen’s human dignity as contingent on another citizen’s endorsement of their beliefs would wreak legal havoc. It would jeopardize the freedom of the pro-abortion tattoo artist, the Democratic videographer, the gun-control favoring graphic artist, and the lesbian cake artist. The concept of “dignity as endorsement” will eliminate the freedom to disagree with the State, undermining a crucial aspect of human flourishing – the freedom to speak (or not speak) according to one’s own beliefs. Limiting speech and the flow of ideas undermines our common quest for truth and the vitality of society as a whole. Therefore, in the case of 303 Creative, the Supreme Court’s decision should respect human dignity by protecting free speech for all Americans, not just those who agree with the State.

 

 

 

 

 

* Emilie Kao is Senior Counsel and Vice-President for Advocacy Strategy at Alliance Defending Freedom (ADF) which represents Lorie Smith. The views expressed here do not necessarily reflect the views of ADF or its clients. The author thanks her colleagues Jonathan Scruggs, Erin Hawley, Kellie Fiedorek, Jake Warner, and Andrew Graham for their contributions. Julie Peterson, Seth Lucas, and Sharon Supp provided valuable editorial assistance.

[1] See generally Kenneth S. Abraham & G. Edward White, The Puzzle of Dignitary Torts, 104 Cornell L. Rev. 317, 320 (2019) (describing dignity and dignitary torts as “unanalyzed and undebated” despite “their obvious and growing importance.”)

[2] See Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 138 S. Ct. 1719 (2018); Fulton v. City of Phila., 141 S. Ct. 1868 (2021). See Brief for Sherif Girgis as Amicus Curiae Supporting Petitioners, Masterpiece Cakeshop, 138 S. Ct. 1719 (2018) (No. 16-111), for a detailed discussion of Colorado’s application of dignitary harm.

[3] Petition for Writ of Certiorari at 5, 303 Creative LLC v. Elenis, No. 21-476 (U.S. Sept. 24, 2021). See also Elenis, 6 F.4th 1160, 1172 (10th Cir. 2021) (“True enough, the parties stipulated to the district court that Appellants are ‘willing to work with all people regardless of classifications such as race, creed, sexual orientation, and gender.’”).

[4] Reply Brief for Petitioners at 4, 303 Creative, No. 21-476 (U.S. Dec. 22, 2021).

[5] 303 Creative, 6 F.4th at 1212 (Tymkovich, J., dissenting).

[6] Many state statutes were also initially enacted to stamp out invidious race-based discrimination. For a more in-depth look at the development of anti-discrimination laws, see Ryan T. Anderson, Shields Not Swords, 35 Nat’l Affairs (2018).

[7] See Boy Scouts of Am. v. Dale, 530 U.S. 640, 657 n.3 (2000) (noting this expansion).

[8] Compare Civil Rights Cases, 109 U.S. 3, 9 (1883) (listing text of 1875 law) with Minn. Stat. § 363A.03 (emphasis added).

[9] See, e.g., World Peace Movement of Am. v. Newspaper Agency Corp., 879 P.2d 253, 257–58 (Utah 1994); Pines v. Tomson, 160 Cal. App. 3d 370, 383, 206 Cal. Rptr. 866, 874 (Cal. Ct. App. 1984); Andrews v. Blick Art Materials, LLC, 268 F. Supp. 3d 381 (E.D.N.Y. 2017); Jian Zhang v. Baidu.com Inc., 10 F. Supp. 3d 433, 435 (S.D.N.Y. 2014); Athenaeum v. Nat’l Lawyers Guild, Inc., No. 653668/16, 2018 WL 1172597 (N.Y. Sup. Ct. Mar. 06, 2018).

[10] Nev. Rev. Stat. § 651.050; see also Harrington v. Airbnb, Inc., 348 F. Supp. 3d 1085, 1093 (D. Or. 2018) (applying public-accommodation law to online platform).

[11] See Creek Red Nation, LLC v. Jeffco Midget Football Ass’n, Inc., 175 F. Supp. 3d 1290 (D. Colo. 2016) (applying Colorado law to non-profit association for youth league football); see also Pet. for Writ of Cert., supra note 3, at 189a (agreeing that “303 Creative is a ‘place of public accommodation’ subject to CADA.”).

[12] Madison, Wis., Code of Ordinances § 39.03 (2023). Washington D.C.’s law protects 23 protected classes, including “political affiliation.” Protected Traits in DC, Office of Human Rights, https://ohr.dc.gov/protectedtraits (last visited Jan. 10, 2023).

[13] Press Release, The Lawfare Project, Groundbreaking Lawsuit Alleges National Lawyers Guild Discriminated Against Israeli Organization, Violating New York Law (Jan. 12, 2018), https://www.thelawfareproject.org/releases/2018/4/2/ groundbreaking- lawsuit-alleges-national-lawyers-guild-discriminated-against-israeli-organization-violating-new-york-law.

[14] Susan Selasky, Lesbian Baker in Detroit Got Homophobic Cake Order: Why She Made it Anyway, Detroit Free Press (Aug. 13. 2020), https://www.freep.com/story/news/local/michigan/detroit/2020/08/13/detroit-baker-april-anderson-homophobic-cake-david-gordon/3343464001/.

[15] See Eugene Volokh, Bans on Political Discrimination in Places of Public Accommodation and Housing, 15 N.Y.U. J. L. & Liberty 490 (2022).

[16] See Eugene Volokh, Bans on Political Discrimination in Places of Public Accommodation and Housing, Reason (Oct. 18, 2021), https://reason.com/volokh/2021/10/18/bans-on-political-discrimination-in-places-of-public-accommodation-and-housing/ (“And it’s helpful to see these rules when considering the implications of certain readings of public accommodation law more broadly. Say, for instance, that a wedding photographer has no First Amendment right to refuse to photograph a same-sex wedding in a state with a ban on sexual orientation discrimination by public accommodations. A photographer would then have no First Amendment right to refuse to photograph a Nazi or Communist event in a jurisdiction with a ban on political discrimination by public accommodations. Indeed, briefs and an opinion in such cases have drawn this analogy.”).

[17] The Tenth Circuit Court of Appeals reasoned that CADA could be applied to pure speech. 303 Creative, 6 F.4th at 1178. It found that Colorado satisfied strict scrutiny because an individual artist, “due to the unique nature of [her] services, . . . is more similar to a monopoly.” Id. at 1180. The “monopoly-of-one” theory, as Judge Timothy Tymkovich wrote in dissent, would create a world in which any expressive professional would immediately become subject to expression-on-demand — particularly if that expressive professional is innovative and thus “unique.” Id. at 1204. See Brief for Americans for Prosperity as Amicus Curiae Supporting Petitioners, 303 Creative, No. 21-476 (U.S. Oct. 22, 2021), for a discussion of effects on free market.

[18] See generally Brief for Sherif Girgis as Amicus Curiae, Masterpiece Cakeshop, 138 S. Ct. 1719 (No. 16-111).

    [19] Brief on the Merits for Respondents, at 14, 38, 303 Creative, No. 21-476 (U.S. August 12, 2022) (discussing Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 402 n.5 (1968); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 260 (1964)).

[20] Brief on the Merits for Respondents at 14, 303 Creative, No. 21-476 (U.S. Aug. 12, 2021) (quoting Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 260 (1964) and citing Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 402 n.5 (1968)) (“[I]n a long line of cases this Court has rejected the claim that the prohibition of racial discrimination in public accommodations interferes with personal liberty.”); id. at 38 (quoting Heart of Atlanta, 379 U.S. at 292 (Goldberg, J., concurring)) (“The state has an equally compelling interest in protecting the dignity of its citizens. ‘Discrimination is not simply dollars and cents, hamburgers and movies; it is the humiliation, frustration, and embarrassment that a person must surely feel’ when denied service.”).

[21] See Petition for Writ of Certiorari, supra note 3, at 5; see also 303 Creative, 6 F.4th at 1172 (10th Cir. 2021).

[22] 388 U.S. 1, 11 (1967).

[23] 347 U.S. 483, 494 (1954).

[24] 100 U.S. 303, 307–08 (1879). In Strauder, the Supreme Court cited discussion of the Thirteenth and Fourteenth Amendments in the Slaughterhouse Cases, 83 U.S. 36 (1872). The Court stated that the amendments had “secur[ed] to a race recently emancipated . . . all the civil rights” including “the right to exemption from unfriendly legislation against them distinctively as colored,— exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race.” Id. at 306–08.

[25] Jones v. Alfred H. Mayer Co., 392 U.S. 409, 440–443 (1968). In Jones, the Supreme Court found that Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation. . . . Negro citizens, North and South, who saw in the Thirteenth Amendment a promise of freedom—freedom to “go and come at pleasure” and to “buy and sell when they please”—would be left with “a mere paper guarantee” if Congress were powerless to assure that a dollar in the hands of a Negro will purchase the same thing as a dollar in the hands of a white man. At the very least, the freedom that Congress is empowered to secure under the Thirteenth Amendment includes the freedom to buy whatever a white man can buy, the right to live wherever a white man can live. If Congress cannot say that being a free man means at least this much, then the Thirteenth Amendment made a promise the Nation cannot keep. Id. (internal citations omitted).

[26] Andrew Koppelman, Gay Rights, Religious Accommodations, and the Purposes of Antidiscrimination Law, 88 S. Cal. L. Rev. 619, 639, 644 (2015).

[27] See id. at 643.

[28] See Pet. for Writ of Cert., supra note 3.

[29] See Selasky, supra, note 15.

[30] Andrew Koppelman, A Free Speech Response to the Gay Rights/Religious Liberty Conflict, 110 Nw. U. L. Rev. 1125, 1152 (2016) (citing Jeremy Waldron, Mill and the Value of Moral Distress, in Liberal Rights: Collected Papers 1981–1991 at 115 (1993)).

[31] Colorado recognizes “dignitary harm” in the context of anti-discrimination law when the customer’s protected status is based on sexual orientation as in 303 Creative and Masterpiece Cakeshop. However, Colorado declined to recognize the dignitary harm claims of the customers of the other bakers in Masterpiece Cakeshop who claimed protected status based on religion.

[32] 303 Creative, 6 F.4th at 1178.

    [33]  Masterpiece Cakeshop, 138 S. Ct. 1719, 1728 (2018).

[34] 576 U.S. 644, 672 (2015).

[35] 515 U.S. 557, 559 (1995).

[36] Id. at 573.

[37] 530 U.S. 640, 643–44 (2000).

[38] Id. at 656.

[39] 485 U.S. 46, 50–51(1988).

[40] 562 U.S. 443, 463 (2011) (Alito, J., dissenting).

[41] Abraham & White, supra note 1, at 363–71 (charting attempts to systematically analyze and unify dignitary torts by legal scholars, including by William Lloyd Prosser and Harry Kalven, that begin in the 1940s and declined after New York Times v. Sullivan in which the Supreme Court ruled that a public figure’s defamation claims could not justify silencing the newspaper’s commentary on public affairs absent actual malice that met the standard of clear and convincing evidence).

[42] Id. at 376–77.

[43] Id. at 377.

[44] Id. at 378–79.

[45] 509 U.S. 350 (1989) (italics added).

[46] 138 S. Ct. 2448, 2464 (2018) (citing W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 633 (1943)).

[47] Only seven years after Obergefell v. Hodges, 70% of Americans and 64% of self-described Evangelicals under 40 support it. Brief for Scholars of Family and Sexuality as Amici Curiae Supporting Petitioners at 16, 303 Creative, No. 21-476 (U.S. June 1, 2022).

    [48] “Commission may issue a cease and desist order against the offending public accommodation.” 303 Creative, 6 F.4th at 1169.

[49] After Masterpiece Cakeshop, popular online business directory Yelp! began allowing businesses to indicate that they are LGBT-owned, LGBT-friendly. The company states that over 581,000 businesses have used chosen to advertise their services specifically to LGBT customers, including by dropping a rainbow-colored pin on a map. Miriam Warren, Yelp Makes It Easy to Support LGBTQ-Owned Businesses, and Find “Open to All” Places to Celebrate Pride, Yelp Blog (May 24, 2021), https://blog.yelp.com/news/yelp-makes-it-easy-to-support-lgbtq-owned-businesses/.

[50] Stephanie H. Barclay, An Economic Approach to Religious Exemptions, 72 Fla. L. Rev. 1211, 1228–31 (2020).

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