303 Creative - Sotomayor dissents in favor of Same Sex marriage partners

 

2303 CREATIVE LLCv.ELENIS  

SOTOMAYOR,J., dissenting

“What a difference five years makes.”Carsonv.Makin,596 U. S. ___, ___ (2022) (SOTOMAYOR, J., dissenting) (slipop., at 5). 

Today is a sad day in American constitutional law and inthe 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 todiscriminate in a case brought by a company that seeks todeny 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 thenCourt is, quite literally, a notice that reads: “Some services may be denied to same-sex couples.”

And not just at the Court. Around the country,there has been a backlash to the movement for liberty and equality for gender and sexualminorities. New forms of inclusion have been met with reactionary exclusion.Thisis heartbreaking. Sadly, it is also familiar. When the civilrights and women’s rights movements sought equality inpublic life, some public establishments refused. Some evenclaimed, based on sincere religious beliefs, constitutionalrights to discriminate. The brave Justices who once sat onthis Court decisively rejected those claims.Now the Court faces a similar test. A business open tothe public seeks to deny gay and lesbian customers the fulland equal enjoyment of its services based on the owner’sreligious belief that same-sex marriages are “false.”

 Thebusiness argues, and a majority of the Court agrees, thatbecause the business offers services that are customizedand expressive, the Free Speech Clause of the First Amend-ment shields the business from a generally applicable lawthat prohibits discrimination in the sale of publicly availa-ble goods and services. That iswrong. Profoundly wrong.As I will explain, the law in question targets conduct, notspeech, for regulation, and theactof discrimination hasnever constituted protectedexpression under the FirstAmendment. Our Constitutioncontains