Sotomayor, J., dissenting
Second, the majority completely ignores the categorical nature of the exemption claimed by petitioners. Petitioners maintain, as they have throughout this litigation, that they will refuse to create any wedding website for a same-sex couple. Even an announcement of the time and place of a wedding (similar to the majority’s example from FAIR) abridges petitioners’ freedom of speech, they claim, because “the announcement of the wedding itself is a concept that [Smith] believes to be false.” Tr. of Oral Arg. 41. Indeed, petitioners here concede that if a same-sex couple came across an opposite-sex wedding website created by the company and requested an identical website, with only the names and date of the wedding changed, petitioners would refuse. Id., at 37–38.[1] That is status-based discrimination, plain and simple.
Oblivious to this fact, the majority insists that petitioners discriminate based on message, not status. The company, says the majority, will not sell same-sex wedding websites to anyone. Ante, at 17. It will sell only opposite-sex wedding websites; that is its service. Petitioners, however, “cannot define their service as ‘opposite-sex wedding [websites]’ any more than a hotel can recast its services as ‘whites-only lodgings.’ ” Telescope Media Group v. Lucero,
- ↑ Because petitioners have never sold a wedding website to anyone, the record contains only a mockup website. The mockup confirms what you would expect: The website provides details of the event, a form to RSVP, a gift registry, etc. See App. 51–72. The customization of these elements pursuant to a content-neutral regulation of conduct does not unconstitutionally intrude upon any protected expression of the website designer. Yet Smith claims a First Amendment right to refuse to provide any wedding website for a same-sex couple. Her claim therefore rests on the idea that her act of service is itself a form of protected expression. In granting Smith’s claim, the majority collapses the distinction between status-based and message-based refusals of service. The history shows just how profoundly wrong that is. See Runyon v. McCrary, 427 U. S. 160, 176 (1976); Hishon v. King & Spalding, 467 U. S. 69, 78 (1984); Roberts v. United States Jaycees, 468 U. S. 609, 622–629 (1984).
