Sotomayor, J., dissenting
936 F. 3d 740, 769 (CA8 2019) (Kelly, J., concurring in part and dissenting in part). To allow a business open to the public to define the expressive quality of its goods or services to exclude a protected group would nullify public accommodations laws. It would mean that a large retail store could sell “passport photos for white people.”
The majority protests that Smith will gladly sell her goods and services to anyone, including same-sex couples. Ante, at 2, 17. She just will not sell websites for same-sex weddings. Apparently, a gay or lesbian couple might buy a wedding website for their straight friends. This logic would be amusing if it were not so embarrassing.[1] I suppose the Heart of Atlanta Motel could have argued that Black people may still rent rooms for their white friends. Smith answers that she will sell other websites for gay or lesbian clients. But then she, like Ollie McClung, who would serve Black people take-out but not table service, discriminates against LGBT people by offering them a limited menu.[2] This is plain to see, for all who do not look the other way.
The majority, however, analogizes this case to Hurley and Boy Scouts of America v. Dale, 530 U. S. 640 (2000). The law schools in FAIR likewise relied on Hurley and Dale to argue that the Solomon Amendment violated their free-speech rights. FAIR confirmed, however, that a neutral regulation of conduct imposes an incidental burden on speech when the regulation grants a right of equal access
- ↑ The majority tacitly acknowledges the absurdity. At the start of its opinion, it explains that Smith “decided to expand her offerings to include services for couples seeking websites for their weddings.” Ante, at 1 (emphasis added).
- ↑ What is “ ‘embarrassing’ ” about this reasoning is not, as the Court claims, the “distinction between status and message.” Ante, at 18, n. 3. It is petitioners’ contrivance, embraced by the Court, that a prohibition on status-based discrimination can be avoided by asserting that a group can always buy services on behalf of others, or else that the group can access a “separate but equal” subset of the services made available to everyone else.
