“Nobody’s mind was changed by this argument, or at least no justice’s. This case will be decided 6-3 in favor of the graphic designer who is happy to serve gay people but not to create websites for same-sex weddings. The most interesting parts of the argument involved amusing, creative, even outlandish hypotheticals—a photo for an Ashley Madison profile; an 'It’s a Wonderful Life' all-white Christmas scene—but at base this case is about the difference between speech and conduct. A clear majority of justices were uncomfortable with forcing someone to create expression they disagreed with and no number of inapt comparisons to race-based denial of service can change that. Colorado’s mask slipped when its solicitor general said there was no difference between opposition to same-sex marriage and interracial marriage, even though Obergefell itself held that people can oppose the former for honorable, non-bigoted reasons. As professors Dale Carpenter, Eugene Volokh and I argued—in a brief Justice Kavanaugh referenced during the argument—'the First Amendment shields refusals to speak, but does not extend to refusals to do things that are not a form of speech.' State laws prohibiting discrimination in public accommodations are subject to such limits on governmental power.”
—Ilya Shapiro is a senior fellow and director of constitutional studies at the Manhattan Institute.
Click here to visit the amicus brief Ilya Shapiro coauthored on behalf of the petitioners.
Click here to visit Ilya Shapiro’s recent Newsweek column regarding the case: SCOTUS Should Hold States Can't Compel Politically Correct Wedding Messages (Newsweek, 11-28-22)