Same-Sex Wedding Service Refusals and Obergefell's "Decent and Honorable" Dicta

Abstract

Does the holding in 303 Creative v. Elenis give public accommodations a constitutional right to refuse to provide expressive services for interracial couples’ weddings or for couples’ weddings in which one or both partners are disabled? As indicated by questions Justice Sotomayor raised about this issue during oral arguments, this is one of the troubling new legal questions created by the Supreme Court’s decision in 303 Creative. There the Court held that a Colorado web design business had a First Amendment free speech right to refuse to provide wedding website services for same-sex couples’ weddings, even though Colorado law protects against sexual-orientation discrimination in public accommodations and Colorado concluded that the web design business’ refusal to provide such services violated its law.

Understandably, both the Court’s conservative and liberal justices appear wary of extending the Court’s holding to provide a right to refuse service for other protected couples’ weddings. Yet, so far, advocates of the Court’s decision in 303 Creative have been unable to give a plausible explanation as to why it does not so extend. Often, when pressed, such advocates appeal to Justice Kennedy’s statement, made in dicta, in Obergefell v. Hodges that “[m]any who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises.” My aim in this paper is to show why the arguments based on such appeals fail. All such arguments violate longstanding core aspects of either the Court’s First Amendment or public accommodation law precedent. And all such attempts undermine the dignity of LGBTQ people and subject them to an inferior class status. In light of this, I argue that the best way out is for the Court to narrow 303 Creative’s holding to cover only cases where a state is seeking to enforce its public accommodation law for the purposes the Court attributed to Colorado in 303 Creative. Because states virtually never seek to enforce their public accommodation laws for such reasons, 303 Creative would be unlikely to be controlling in future cases as a result.

Keywords: free speech, free exercise, religious liberty, LGBTQ rights, public accommodation laws, same-sex marriage, Obergefell v. Hodges, 303 Creative v. Elenis, Masterpiece Cakeshop v. Colorado