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.

The full text of this Article can be found by clicking the PDF link to the left.

*Professor of Law, University of Virginia School of Law, Greenwall Foundation Faculty Scholar, Affiliated Faculty, Center for Health Humanities and Ethics, University of Virginia. My thanks to Craig Benson, Mary Anne Case, Katie Eyer, Leslie Francis, Debbie Hellman, Mark Satta, Michael Stein, Kurt Crispin Steinhouse, the University of Virginia Kohler Seminar, a student seminar at University of Chicago Law School, and faculty workshops at the University of Virginia, the University of Maryland and the University of Connecticut Schools of Law, and especially to Jessica Clarke for helpful comments and discussions, to Kiera Goddu and Ian Roberson for research help, to Leslie Ashbrook and Dan Radthorne for citation assistance, and to Billi Jo Morningstar for proofing.

Introduction

The clash between free speech and minority interests, specifically those of gay people, 1 The cases this Article examines primarily involve refusals directed at gay people, and thus, usually refers to the affected group as such. That is not to say that other members of the LGBTQ+ community will not be affected, or indeed, other minorities. For example, President Donald Trump’s Administration justified its ban on certain transgender individuals serving in the military by arguing that its policy “draws lines on the basis of a medical condition (gender dysphoria) and its treatment (gender transition) . . . and not transgender status.” Appellants’ Opening Brief at 23, Karnoski v. Trump, 926 F.3d 1180 (9th Cir. 2019) (No. 18-35347), 2018 WL 2981765. The Ninth Circuit held that there was discrimination against transgender people and so did “not address whether it constitutes discrimination against transgender persons on the . . . ground that gender dysphoria and transition are closely correlated with being transgender.” Karnoski, 926 F.3d at 1201 n.18 (citing Supreme Court precedent, discussed infra, that rejected the status–conduct distinction). See generally Kenji Yoshino, Covering, 111 Yale L.J. 769 (2002) [hereinafter Yoshino, Covering] (discussing cases involving race and sex in which courts accepted arguments that the discrimination at issue targeted certain characteristics of individuals, rather than a protected status). has reached fever pitch. For decades, the Court has played referee in this fight. In 1995, the Court unanimously held in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston (GLIB) that the Free Speech Clause granted the Boston St. Patrick’s Day Parade organizers the right to exclude a gay and lesbian group in violation of state antidiscrimination law. 2 Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., Inc., 515 U.S. 557, 581 (1995). In 2000, in Boy Scouts of America v. Dale, a bare majority of the Court similarly held that the Boy Scouts could expel an openly gay scoutmaster. 3 Boy Scouts of Am. v. Dale, 530 U.S. 640, 661 (2000). In the 2010 case of Christian Legal Society v. Martinez, another bare majority of the Court pulled back, holding on narrow grounds that California could prohibit a Christian law student group at a public school from excluding gay and lesbian students. 4 Christian Legal Soc’y v. Martinez, 561 U.S. 661, 672, 698 (2010).

The last few years have seen an intensification of this battle. In 2017, in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a Colorado baker refused to bake a cake for a same-sex wedding. 5 Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 138 S. Ct. 1719, 1724 (2018). Members of the Court sparred with each other in anticipation of a subsequent showdown; the case was ultimately resolved on narrow grounds but produced three concurrences and a dissent. 6 Id. at 1732 (grounding the Court’s analysis in the facts of the adjudication at issue and noting that “[t]he outcome of cases like this in other circumstances must await further elaboration in the courts”); see also Leslie Kendrick & Micah Schwartzman, The Etiquette of Animus, 132 Harv. L. Rev. 133, 134 (2018) (“But in Masterpiece, the Supreme Court avoided the main conflict between LGBT equality and religious liberty.”). The showdown arrived last Term in 303 Creative LLC v. Elenis, another Colorado case. 7 143 S. Ct. 2298 (2023). There, a majority of the Court held that graphic designer Lori Smith could refuse to build websites for same-sex weddings. 8 Id. at 2312–13.

The reasoning in these cases generally proceeds in two steps. When approving service refusals, the Court first identifies and magnifies the refuser’s expressive interest. 9 See infra notes 14–20 (discussing the Court’s excavation of the speech rights in this line of cases); infra section III.B (discussing in detail how the Court minimizes the interests of the same-sex couples by claiming no discrimination has occurred). It then goes on to diminish the interests of the gay people experiencing the refusal, holding that gay people do not experience discrimination. 10 See, e.g., 303 Creative, 143 S. Ct. at 2316–18 (arguing that Ms. Smith is only refusing to create designs celebrating same-sex marriage message, not refusing to serve LGBTQ+ customers at all). This reasoning packs a one-two punch—the refusers have a speech interest in their message, and the gay person lacks a countervailing equality interest as (according to the Court’s majority in these cases) no discrimination has occurred.

Take 303 Creative, for example. There, the Court claimed, first, that Smith’s service denial was expressive. 11 Id. at 2316 (“Ms. Smith does not seek to sell an ordinary commercial good but intends to create ‘customized and tailored’ speech for each couple.” (emphasis omitted)). Second, it claimed there was no discrimination, a claim that this Article calls “discrimination denial.” In other words, the Court suggested, gay people had no equality interest to weigh against Smith’s speech interests. Smith’s objection, the Court emphasized, is not to gay people, but (in this case) to same-sex weddings. 12 Id. at 2339 (Sotomayor, J., dissenting). Thus, it noted, “the parties agree that Ms. Smith ‘will gladly create custom graphics and websites for gay, lesbian, or bisexual clients or for organizations run by gay, lesbian, or bisexual persons so long as the custom graphics and websites’ do not violate her beliefs.” 13 Id. at 2317 (quoting Petition for a Writ of Certiorari at app. 184a, 303 Creative, 143 S. Ct. 2298 (No. 21-476), 2021 WL 4459045). One might deny that the Court claims there is discrimination. This Article discusses and rejects that possibility infra note 205.

Both the Court and commentators dwell in greater detail on the refuser’s speech right, interrogating whether the claimed interest constitutes speech, 14 In 303 Creative, it was fairly apparent to the Court that speech was involved. “[T]he wedding websites Ms. Smith seeks to create qualify as ‘pure speech’ under this Court’s precedents.” Id. at 2312 (citing 303 Creative LLC v. Elenis, 6 F.4th 1160, 1176 (10th Cir. 2021)). In other cases, however, the Court has justified at greater length its finding that the conduct at issue involved protected expression. See Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 138 S. Ct. 1719, 1743 (2018) (Thomas, J., concurring in part and concurring in the judgment) (“The use of . . . artistic talents to create a well-recognized symbol that celebrates the beginning of a marriage [that is, a wedding cake,] clearly communicates a message . . . .”); Boy Scouts of Am. v. Dale, 530 U.S. 640, 649–50 (2000) (“[T]he scoutmasters and assistant scoutmasters inculcate them with the Boy Scouts’ values . . . . [A]n association that seeks to transmit such a system of values engages in expressive activity.”); Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., Inc., 515 U.S. 557, 568 (1995) (“Parades are thus a form of expression, not just motion, and the inherent expressiveness of marching to make a point explains our cases involving protest marches.”). For academic commentary, see Steven J. Heyman, A Struggle for Recognition: The Controversy Over Religious Liberty, Civil Rights, and Same-Sex Marriage, 14 First Amend. L. Rev. 1, 88 (2015) (“[A]n enterprise that offers to serve the public becomes part of the social realm of commerce. Such an enterprise properly can be regarded as a place of public accommodation with a duty to serve everyone.”); Amy J. Sepinwall, Conscience in Commerce: Conceptualizing Discrimination in Public Accommodations, 53 Conn. L. Rev. 1, 53 (2021) (“[T]here is in fact no conflict between equality and refusing service to those who seek a vendor’s products for hateful ends. Those ends are themselves equality-undermining, so, if anything, vendors vindicate equality when they refuse to contribute to them.”); Elizabeth Sepper, Free Speech and the “Unique Evils” of Public Accommodations Discrimination, 2020 U. Chi. Legal F. 273, 275 (“Because of social expectations of service, a business communicates little, if anything, when it provides a good or service to any particular customer. The wedding vendor signals no approval of the person or the use of the goods by its service.”). the nature of the speech if any, 15 The Court in 303 Creative emphasized that speech remains protected even if “offer[ed] . . . for pay” through a corporation. 143 S. Ct. at 2316. Others appear to disagree that speech rights lose some vitality in public accommodations contexts. See, e.g., Sepper supra note 14, at 292. In Hurley and Dale, similarly, the Court engaged in significant analysis to explain how conduct and association implicate expressive principles. See Dale Carpenter, Expressive Association and Anti-Discrimination Law After Dale : A Tripartite Approach, 85 Minn. L. Rev. 1515, 1519–20 (2001) (noting that reviewing the history of suppression of expressive associations is instructive for analyzing the Dale case); Jed Rubenfeld, The First Amendment’s Purpose, 53 Stan. L. Rev. 767, 811 (2001) (noting in critiquing Dale that expressive association “protects organizations like the NAACP from being banned or persecuted because state actors do not like their First Amendment activity . . . [and also] protects an individual from being punished or harassed for being a member of an organization like the NAACP”); see also Jonathan Turley, The Unfinished Masterpiece: Compulsion and the Evolving Jurisprudence Over Free Speech, 83 Md. L. Rev. 145, 148 (2023) (examining the issue within the compelled-speech framework). its importance, and whether the speech is the client’s or the vendor’s. 16 See 303 Creative, 143 S. Ct. at 2313 (“We further agree with the Tenth Circuit that the wedding websites Ms. Smith seeks to create involve her speech.” (citing 303 Creative, 6 F.4th at 1181 & n.5)); see also Masterpiece Cakeshop, 138 S. Ct. at 1743 (Thomas, J., concurring in part and concurring in the judgment) (“Phillips sometimes stays and interacts with the guests at the wedding. And the guests often recognize his creations and seek his bakery out afterward.”). But see Elane Photography, LLC v. Willock, 309 P.3d 53, 68–70 (N.M. 2013) (noting that because the speech in question was offered for hire, it may not be attributable to the vendor); Craig Konnoth, How the Supreme Court’s LGBT Cases Fractured the First Amendment, Bloomberg L. (July 6, 2023), https://news.bloomberglaw.com/ip-law/how-the-supreme-courts-lgbt-cases-fractured-the-first-amendment (on file with the Columbia Law Review) (arguing that anti-gay speech receives greater protection under the current Court’s jurisprudence than pro-gay speech). Less frequently foregrounded in today’s academic commentary is the second set of rights—the antidiscrimination interests of the gay people experiencing service refusals, 17 There was plenty of such commentary in the aftermath of Hurley and Dale. See infra section I.A. But more recent cases have not attracted similar analysis, perhaps because, first, the Court did not explicitly indicate the role its discrimination denial played in its analysis, which may make it easier to overlook the matter. See infra note 155 and accompanying text. Second, the Court also diminished the rights at stake. See infra section II.B.2. Scholars might follow the Court’s lead in focusing on the expressive interests it indicates are important. Third, given that Masterpiece Cakeshop was not decided on free speech grounds, and no gay people were actually denied services in 303 Creative, the harm might seem attenuated. See infra note 173 and accompanying text. Fourth, because of the structure of constitutional analysis, the same-sex partners in Masterpiece Cakeshop “present to the Court not as rights-bearers but merely as the beneficiaries of a state ‘interest’ in nondiscrimination against gay people”; it is the refusers who claim the right and who therefore might appear more important to constitutional scholars. Jamal Greene, Foreword: Rights as Trumps?, 132 Harv. L. Rev. 28, 72 (2018). Finally, the expressive claims described in the preceding footnotes might appear more novel than discrimination denial, which may be a holdover from the Hurley and Dale era. and, in particular, the Court’s claim that these refusals do not constitute discrimination. 18 The commentary that does exist—a blog post, an online-only forum piece, and a case comment—thus offers no new analysis of the Court’s denial of discrimination. In his blog post, Dale Carpenter examines First Amendment doctrine and tallies the products that gay people might lose access to (a limited list according to him) but does not consider whether this loss of access constitutes discrimination. See Dale Carpenter, How to Read 303 Creative v. Elenis, Reason: Volokh Conspiracy (July 3, 2023), https://reason.com/volokh/2023/07/03/how-to-read-303-creative-v-elenis [https://perma.cc/M2A8-RCNL] [hereinafter Carpenter, How to Read 303 Creative]. David Cole’s online essay similarly focuses on First Amendment doctrine and is content to “take the Court at its word,” accepting its denial that discrimination occurs if a vendor refuses to make certain products as long as they do not exclude individuals based on their characteristics. David D. Cole, “We Do No Such Thing”: 303 Creative v. Elenis and the Future of First Amendment Challenges to Public Accommodations Laws, 133 Yale L.J. Forum 499, 501, 502–03 (2024), https://www.yalelawjournal.org/pdf/ColeYLJForumEssay_hgfr3cxy.pdf [https://perma.cc/3ZL7-X29A]. Cole only criticizes the Court on the facts—he argues that the 303 Creative petitioner did seek to exclude people based on their characteristics. Id. (noting that the “business sought a court order allowing it to turn away all gay couples seeking a wedding website, regardless of content”).
Professor Kenji Yoshino’s case comment offers the only contemporary scholarship that critiques the Court’s characterization of when discrimination occurs. But Yoshino refers to the old status–conduct distinction; much of the rest of his discussion focuses on the weight of the harms gay people will experience, both material and dignitary. See Kenji Yoshino, Rights of First Refusal, 137 Harv. L. Rev. 244, 277 (2023) [hereinafter Yoshino, Rights]. In any case, Yoshino’s consideration of the harms to gay people does not occupy the majority of his comment: His focus is on the Court’s overall reasoning and centers on the refusal right rather than the nondiscrimination interest. Nonetheless, his discussion of the claim is the most prominent in the legal literature thus far.
One last distinction bears noting: Both John Corvino and Mark Satta argued in the wake of Masterpiece Cakeshop that the Court cannot allow discrimination based on how a customer might use a product, but that a shopkeeper might refuse to make a certain kind of product or a product that takes a certain form. John Corvino, “The Kind of Cake, Not the Kind of Customer”: Masterpiece, Sexual-Orientation Discrimination, and the Metaphysics of Cakes, Phil. Topics, Fall 2018, at 1, 6–7 (arguing for a distinction between design-based refusals and user-based refusals); Mark Satta, Why You Can’t Sell Your Cake and Control It Too: Distinguishing Use From Design in Masterpiece Cakeshop v. Colorado, Harv. C.R.-C.L. L. Rev. Amicus Blog (July 10, 2019), https://journals.law.harvard.edu/crcl/why-you-cant-sell-your-cake-and-control-it-too-distinguishing-use-from-design-in-masterpiece-cakeshop-v-colorado/ [https://perma.cc/NJ4E-4C3P] (“While the bakers in the other . . . cases were seeking only to have a say over which items they make, the baker in Masterpiece was seeking to control how his customers use the products he makes, and by extension, which messages the customers go on to create . . . .”). On their account, two cakes that have the identical form but that are sold for use in a same- and different-sex wedding respectively, are the “same” cake. That is, the identity of the cake is determined by its form, not its function. It is unclear whether that is the case, however. Consider, for example, birth control pills. The identity of the item is less its form, and more what it does. Cf. Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127–28 (9th Cir. 2009) (finding against pharmacists arguing that law compelling them to dispense birth control violated their free exercise rights). With a wedding cake, the use of the cake again defines the item—as the term wedding cake indicates. This Article does not seek to fully critique the distinction (for example, one could argue that in the case of a pill, “form” should be defined by chemical composition rather than use, such that an off-label use should not brook objection) but simply to acknowledge it as a contribution to the literature.

And yet, denying the existence of discrimination carries both doctrinal and political significance. 19 It bears noting that the Court has made similar moves in other cases. For example, in Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993), the Court held that Title VII could prohibit certain kinds of sexually harassing speech “without so much as a word about free speech doctrine.” Richard H. Fallon, Jr., Sexual Harassment, Content Neutrality, and the First Amendment Dog that Didn’t Bark, 1994 Sup. Ct. Rev. 1, 20. In some ways, that Court took the inverse approach—focusing on antidiscrimination interests and ignoring speech interests. But unlike in that case, the Court explicitly denies the antidiscrimination interest at stake here. Doctrinally, the question of whether there is discrimination can determine whether LGBTQ+ individuals’ interests outweigh any expressive interests of refusers—if there is no discrimination, then gay people can hardly argue against the refusers’ expressive rights. 20 See infra section II.B. The question can even delimit the reach of antidiscrimination statutes—if anti-marriage discrimination is not anti-gay discrimination, then no antidiscrimination statute has been violated. 21 See infra section II.A. And rhetorically, denying the existence of discrimination enables prioritizing refusers’ interests while erasing those of gay people. Thus, exam-ining the Court’s claim that no discrimination has occurred is the focus of this Article. 22 There are situations in which someone might, as the Court puts it, send a “message” without discriminating based on “status.” See 303 Creative LLC v. Elenis, 143 S. Ct. 2298, 2319 (2023). But those situations do not involve the actual denial of a service. For example, a seller might post a sign stating that they disapprove of marriage equality but do provide same-sex marriage-related services because the law demands it. A tougher case might involve a situation in which a shop posts a sign that says “gay people are unwelcome,” but gay people also never seek a service from that store (and thus, never experience a denial). One might argue in these cases that while a message has been sent, no discrimination has actually occurred. But those situations are different. The cases at issue here do involve a denial of service. Indeed, the message is understood to inhere in the denial of service.
To be sure, sending a message of discrimination can still constitute discrimination. Language theory holds that statements have both a descriptive and performative aspect. Giving a promise, for example, does not simply describe an action; it constitutes the act of promising. See J.L. Austin, How to Do Things With Words 50–52 (J.O. Urmson & Marina Sbisà eds., 2d ed. 1975) (“We must consider the total situation in which the utterance is issued . . . if we are to see the parallel between statements and performative utterances . . . . [T]he total speech act in the total speech situation is emerging from logic piecemeal . . . thus we are assimilating the supposed constative utterance to the performative.”). A public accommodation is “open to the public.” 303 Creative, 143 S. Ct. at 2325, 2336–38 (Sotomayor, J., dissenting). Stating that it is closed to a certain segment of the public is a performative act that discriminates against that group of the public. This Article does not defend that view in detail.

While the Court does not always explicitly articulate its reasoning, two grounds best justify the discrimination denial: First, denying service based on the conduct of individuals does not constitute discrimination against their status. Scholars read the Court’s cases from the late 1990s and early 2000s as relying on this status–conduct (also known as the act–identity) distinction. 23 See, e.g., Yoshino, Rights, supra note 18, at 251–52 (discussing the status–conduct distinction in the context of “Don’t Ask, Don’t Tell”). The original formulation by Michel Foucault refers to the identity–act distinction. See Michel Foucault, The History of Sexuality: An Introduction 43 (Robert Hurley trans., Pantheon Books 1978) (1976) (“Homosexuality appeared as one of the forms of sexuality when it was transposed from the practice of sodomy onto a kind of interior androgyny, a hermaphrodism of the soul. The sodomite had been a temporary aberration; the homosexual was now a species.”). In Hurley, Dale, and Christian Legal Society, refusers argued that gay people engaged in objectionable conduct. For example, the gay and lesbian group in Hurley sought to carry a banner, 24 Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., Inc., 515 U.S. 557, 572 (1995); see also infra notes 71–75 and accompanying text. and in Christian Legal Society, the excluded gay and lesbian students purportedly engaged in unsanctioned sexual activity. 25 See Christian Legal Soc’y v. Martinez, 561 U.S. 661, 702 (2010); see also infra notes 92–95 and accompanying text. But, the refusers argued, they objected to that conduct, not to gay people themselves. Gay people who did not engage in prohibited conduct would be permitted access. 26 See infra notes 65–68 and accompanying text.

Some of today’s litigants seek to revive such arguments. They have similarly argued that their objection is to providing services for same-sex marriage, not to gay people. 27 See infra notes 90–91, 117–118. Yet, relying on now decades-old literature and jurisprudence, most of today’s lower courts have roundly (and rightly) rejected the status–conduct binary. 28 See infra notes 95–97and accompanying text. Status does not exist in a vacuum but is constituted through conduct—including coming out, engaging in intimate conduct, marching in pride parades, and choosing whether to love and to whom to express that love.

Today’s Court—primarily through Justice Neil Gorsuch, the author of 303 Creative—also claims that service refusals are not discriminatory. 29 See Yoshino, Rights, supra note 18, at 251 (“For the majority, this refusal is not status-based discrimination as Smith does not change the terms associated with the goods she offers based on the identity of the buyer.”). But rather than relying on the status–conduct distinction, his opinion inaug-urates a new distinction between access and content. On this account, plaintiffs’ stores offer a certain set of content—cakes or websites for different-sex weddings, or more generic items like cookies or brownies. They are willing to give gay people access to all this content. But they are not willing to alter the content they offer—they are not willing to make cakes for same-sex weddings, for example. And as long as the protected group is given access to any of the seller’s content (whatever it is), there is no discrimination.

Although Justice Gorsuch presents his reasoning as original, similar distinctions have been made in other areas of antidiscrimination law. In disability discrimination law, defendants have invoked the access–content distinction in the courts of appeals. 30 See infra section I.B.1. To draw one example from these cases, a bookstore that does not carry books in Braille does not necessarily discriminate against blind people—that is, as long as blind people are allowed access to the books the store chooses to stock. 31 Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 560 (7th Cir. 1999) (“The common sense of the [ADA] is that the content of the goods or services offered by a . . . public accommodation is not regulated. A camera store may not refuse to sell cameras to a disabled person, but it is not required to stock cameras specially designed for such persons.”). For commentary, see Samuel R. Bagenstos, Law and the Contradictions of the Disability Rights Movement 71 (2009) [hereinafter Bagenstos, Law and Contradictions]. The fact that the books the store stocks is of less use to members of a certain group is not relevant as long as that group is given equal access.

Both the status–conduct and access–content distinctions help justify the claim that the service denial is not discriminatory. They allow the Court to unlink the service denial from the protected status of the individual. Instead, these distinctions allow the Court to anchor the service denial to specific conduct (marriage) or to the nature of the product (services for different-sex couples). In this way, the Court can claim that the service denial does not discriminate against gay status.

Part I explores the status–conduct and access–content distinctions. Part II explores the implications of denying the existence of discrimination in general, 32 That is, using both the identity–act and access–content justifications. and of the access–content justification in particular. On one level, the Court does not simply hold that service refusers’ First Amendment interests trump gay people’s interests against discrimination. Rather, the Court feels the need to minimize gay people’s interests to justify the service denial. Observers might take some comfort in the fact that the Court does not give the refusers an automatic win, with no regard to gay people’s interests. But the story is more complex.

At the outset, the claim that the service denials are not discriminatory can present real doctrinal problems for litigants. First, if a service denial sometimes constitutes fully protected expression, a state must show at least that it advances a compelling interest in requiring services for same-sex weddings. In these cases, states argue that their application of the public accommodation laws serve the compelling interest of protecting gay people from discrimination. 33 See State Public Accommodation Laws, Nat’l Conf. State Legislatures (June 25, 2021), https://www.ncsl.org/civil-and-criminal-justice/state-public-accommodation-laws [https://perma.cc/2V8B-NHRY] (noting that only “[f]ive states—Alabama, Georgia, Mississippi, North Carolina and Texas—do not have a public accommodation law for nondisabled individuals”). Future courts may rely on the 303 Creative Court’s claim that under federal law, no discrimination against gay people has occurred, in which case the compelling interest disappears altogether. 34 303 Creative LLC v. Elenis, 143 S. Ct. 2298, 2316–18 (2023) (arguing that Ms. Smith only refuses to provide a wedding website to same-sex couples but does not necessarily refuse to serve same-sex couples entirely). Note that the denial of discrimination does not control the Court’s analysis, so it is dicta. See id. Second, 303 Creative’s definition of what counts as discrim-ination could affect how other courts interpret antidiscrimination statutes. Other courts could hold (and have held) that objections to same-sex marriage do not count as discrimination, limiting protections for gay rights. 35 See, e.g., Brush & Nib Studio, LC v. City of Phoenix, 448 P.3d 890, 896–97 (Ariz. 2019) (“The enduring strength of the First Amendment is that it allows people to speak their minds and express their beliefs without government interference. But here, the City effectively cuts off Plaintiffs’ right to express their beliefs about same-sex marriage by telling them what they can and cannot say.”); Lee v. Ashers Baking Co. Ltd. [2018] UKSC 49 [47] (“The situation is not comparable to people being refused jobs, accommodation or business simply because of their religious faith. It is more akin to a Christian printing business being required to print leaflets promoting an atheist message.”).

Beyond doctrine, the shift from the status–conduct binary to the access–content binary has stakes for both religious and LGBTQ+ identity. First, a close reading of Justice Gorsuch’s Masterpiece Cakeshop concurrence suggests that the departure from the status–conduct distinction seeks to enable claims of religious discrimination. 36 Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 138 S. Ct. 1719, 1734 (2018) (Gorsuch, J., concurring); see also infra notes 139–142 and accompanying text. If such cases become more prominent in the Court’s docket, a sharp distinction between status and conduct could undermine arguments that the burdens on certain religious conduct constitute discrimination against religious people. Avoiding the status–conduct binary helps evade that problem.

Second, the access–content distinction shifts focus from the indi-viduals involved to the services at issue, avoiding consideration of identity categories. This risks reifying a market-oriented view of the harm involved: The injury gay couples face is a supply-chain one—limited availability of certain goods—rather than a dignitary, identity-based one. 37 But see Hila Keren, Beyond Discrimination: Market Humiliation and Private Law, 95 U. Colo. L. Rev. 87, 172 (2024) (“Market humiliation is a corrosive relational process . . . [in which] providers of market resources . . . use their powers to reject or mistreat other market users due to their identities. They humiliate users and harm their market citizenship by depriving them of dignified participation in the marketplace.”).

At base, the claim that no discrimination has occurred denies the lived reality of gay people. Civil rights claims have historically depended on the building of consciousness among groups about the existence of oppression. 38 See, e.g., Donald G. Nieman, From Slaves to Citizens: African-Americans, Rights Consciousness, and Reconstruction, 17 Cardozo L. Rev. 2115, 2117 (1995) (“Equally dramatic, and no less significant, was the change in consciousness that occurred among African-Americans, paralleling the constitutional revolution and helping to give it life.”); Peter H. Schuck, Public Law Litigation and Social Reform, 102 Yale L.J. 1763, 1775 (1992) (reviewing Gerald P. Lopez, Rebellious Lawyering: One Chicano’s Vision of Progressive Law Practice (1992) and Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (1991))(“Brown’s . . . contribution was to put civil rights on the liberal political agenda, force white politicians to respond, raise public consciousness of racial injustice, and inspire civil rights organizations and the black community to take to the streets . . . .”). If the Court openly weighed the rights of First Amendment claimants against those of gay people and came out in favor of the former, it would be forced to reckon with the burdens that its ruling imposes on gay people. The Court’s approach instead refuses to recognize gay indi-viduals as having the agency, autonomy, and understanding to appreciate when they have experienced discrimination. 39 This form of dignitary harm constitutes epistemic injury. See infra notes 209–215 and accompanying text. Thus it is essential to address the court’s claim that discrimination has not occurred.

Discrimination denial claims rely on status—conduct and access—conduct justifications. Decades-old literature already dismantles the status–conduct justification. The access–content justification, however, has not received similar critical treatment. Indeed, the disability literature which has historically reckoned with the access–content distinction appears to have given up grappling with the distinction on analytical terms. 40 That is, the literature argues that the statute and regulations are better read to prohibit the distinction; it does not suggest that the distinction does not make analytic sense on its own terms. See, e.g., Sharona Hoffman, AIDS Caps, Contraceptive Coverage, and the Law: An Analysis of the Federal Anti-Discrimination Statutes’ Applicability to Health Insurance, 23 Cardozo L. Rev. 1332–33, nn.108–109 (2002) (citing cases in which circuit courts found that the ADA does not require protection against discriminatory content, only access to the content provided).

Part III offers two arguments to show that in cases like 303 Creative, targeting content constitutes discrimination. First, certain items—yarmulkes, crosses, and other items—are identified strongly with specific groups of people: Jewish people, Christians, and so on. Targeting items infused with group identity can exhibit animus against those groups. Second, defining content in terms of a group as the Court appears to do (for example, distinguishing between same–sex and different–sex wedding cakes) to justify discrimination against that group is also illeg-itimate. In that way, this Article argues, the access–content distinction in these cases ultimately fails as an analytical matter.

Ultimately, the Court seeks to quarantine Smith’s message from any claim of discrimination, making her putative expression a get-out-of-jail-free card. If there is no discrimination, there are no competing values that the Court must weigh—First Amendment values dictate the conclusion. But denials of service can have a serious and significant effect on gay people, limiting their access not only to wedding vendors but also to public accommodations that provide basic necessities like food and healthcare. 41 See Brief of Amici Curiae Colorado Organizations & Individuals in Support of Respondents at 3, 15, Masterpiece Cakeshop, 138 S. Ct. 1719 (No. 16-111), 2017 WL 5152969. Reciting those consequences here would be duplicative and unoriginal, so this Article does not do so, but they remain significant. There remains dispute as to how significant the burden on individuals will be. Carpenter argues that the Court’s decision only applies to products that are customized and expressive, which is a rare combination; thus gay people will not be significantly affected. See Carpenter, How to Read 303 Creative, supra note 18. But see Robert Post, What About the Free Speech Clause Issue in Masterpiece ?, Take Care (June 13, 2018), https://takecareblog.com/blog/what-about-the-free-speech-clause-issue-in-masterpiece [https://perma.cc/2XZP-RYRX] (describing how, following Masterpiece Cakeshop, “every carpenter, dress-maker, chef, florist, jeweler, designer, decorator, tailor, chauffeur, architect, lawyer, physician, dentist, nurse, baker, or undertaker could claim that [their service] constituted their own personal expression, . . . [which] would cut the heart out of antidiscrimination laws”); Yoshino, Rights, supra note 18, at 277 (“While Carpenter is correct that only a fraction of the goods we buy are customized and expressive, the sheer number of commercial goods means that even that fraction will be a large number of cases.” (footnote omitted)). There should be no confusion: Same-sex wedding service refusals are discriminatory. To be clear, a finding of discrimination will not necessarily be enough to change outcomes; the Court may still decide that First Amendment interests must prevail, and this Article does not purport to engage speech doctrine. But in weighing the interests involved, it is important to keep in mind gay people’s injuries rather than writing them out of existence.