Sotomayor, J., dissenting
any speech compulsion was “plainly incidental to the Solomon 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 employers 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. Pittsburgh 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 regulation of conduct.[1]
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
- ↑ 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 expresses 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 position. 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 indictment of the majority’s logic.
