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Abstract

This article addresses the U.S. Supreme Court’s embrace, in 303 Creative LLC v. Elenis, of a First Amendment objection to state public accommodations laws that the Court avoided in Masterpiece Cakeshop v. Colorado Civil Rights Commission: such laws compel governmental orthodoxy. These objections invoke West Virginia Board of Education v. Barnette’s celebrated language: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein.” They also cite Barnette’s progeny, including Wooley v. Maynard and Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston. Business owners, their lawyers, and judges who have invoked these cases argue that state public accommodations laws requiring that businesses not discriminate based on sexual orientation in providing goods and services compel both speech and silence. In 303 Creative, Justice Gorsuch’s majority (6-3) opinion quotes the beginning of Barnette’s “fixed star” passage but adapts it: the fixed star becomes “the principle that the government may not interfere with ‘an uninhibited marketplace of ideas.’” Gorsuch moves from the public school room—in which a state law compelled Jehovah’s Witness children to salute the flag, despite their religious beliefs—to the commercial marketplace, but gives little guidance about how broadly the protection of creative expression in this “marketplace of ideas” will extend. While Justice Gorsuch situates the Court’s protection of website designer Lorie Smith against compelled speech—and orthodoxy—in the commercial marketplace as the latest in a series of courageous First Amendment decisions by the Court protecting individuals against an encroaching state, Justice Sotomayor’s dissent excoriates the majority for departing from the long history of the Court courageously defending citizenship-expanding antidiscrimination laws against backlash and repeated First Amendment challenges. This article argues that 303 Creative’s use of Barnette extracts it from its wartime, antitotalitarian context, ignores crucial distinctions drawn in Barnette, and (as Justice Sotomayor’s 303 Creative dissent warns) “‘trivializes the freedom protected in Barnette,’” while also undermining public accommodations laws. The article also considers the recent invocation of Barnette and its progeny to challenge other forms of governmental regulation, including state regulation of crisis pregnancy centers and state bans on conversion therapy.

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