Discrimination Denials: Are Same-Sex Wedding Service Refusals Discriminatory?
Are refusals to provide services for same-sex weddings anti-gay discrimination? The answer, the Supreme Court seems to say, is “no.” Last Term in 303 Creative LLC v. Elenis, the Court held that the Constitution’s Free Speech Clause granted a web designer the right to refuse same-sex wedding services. In so doing, the Court also appeared to opine that the refusal involved no anti-gay discrimination.
Scholarship has yet to explore the stakes of these denials regarding the existence of discrimination. The claim—if accepted—makes it harder for states to argue that compelling equality interests justify infringing on refusers’ putative speech rights. Further, if state courts agree that anti- marriage discrimination is not anti-gay discrimination, then public accommodations will be free to deny a whole swath of marriage-related services to gay people. Beyond its doctrinal implications, any claim that no discrimination has occurred harms LGBTQ+ groups by diminishing and dismissing the burdens gay people face.
This Article examines the validity of these discrimination denials. Historically, they turned on the distinction between “conduct” and “status.” That is, litigants claimed that discrimination against gay conduct (like same-sex marriage) was not discrimination against gay people. As that distinction has proved unviable, the Court has moved away from the status–conduct binary toward a new distinction between access and content. Thus, as long as there is access to a resource, there is no discrimination—after all, a store cannot be forced to stock content that appeals to all groups. The Article explains why this new justification for discrimination denials also fails.