First Amendment Exemptions for Some

Abstract

This Essay argues that the Supreme Court’s assessment of what it understood to be the sincerity and reasonableness of the business owner’s beliefs in 303 Creative LLC v. Elenis played a crucial role in its decision to grant her a First Amendment exemption from the application of a law prohibiting public accommodations from discriminating on the basis of sexual orientation. The Essay explains how 303 Creative is only the latest instance in which conservative justices have contended that opponents of marriage rights for same-sex couples are “decent” and “fairminded people” who are not prejudiced against lesbians, gay men, and bisexuals. By leaving earlier Court precedents rejecting the notion that the First Amendment grants anti-discrimination exemptions to racist and other bigoted business owners firmly in place, 303 Creative makes clear that the sincerity and reasonableness of the claimant’s views matter. This means that the impact of 303 Creative on the enforcement of civil rights laws may be more limited than some fear. But it also means that the ruling is grounded in precisely the type of governmental distinction on the basis of speakers’ viewpoints that the Free Speech Clause prohibits.

Keywords: 303 Creative v. Elenis, First Amendment, free speech, exemptions, anti-discrimination laws, same-sex marriage, LGBTQ rights