NOTICE: This opinion is subject to
formal revision before publication in the United States Reports.
Readers are requested to notify the Reporter of Decisions, Supreme
Court of the United States, Washington, D. C. 20543,
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															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 21–476

															_________________

															303 CREATIVE LLC, et al., PETITIONERS v. AUBREY ELENIS, et al.

															on writ of certiorari to the united states
court of appeals for the tenth circuit

															[June 30, 2023]

															Justice Gorsuch delivered the opinion of the
Court.

															Like many States, Colorado has a law forbidding
businesses from engaging in discrimination when they sell goods and
services to the public. Laws along these lines have done much to
secure the civil rights of all Americans. But in this particular
case Colorado does not just seek to ensure the sale of goods or
services on equal terms. It seeks to use its law to compel an
individual to create speech she does not believe. The question we
face is whether that course violates the Free Speech Clause of the
First Amendment.

															I

															A

															Through her business, 303 Creative LLC, Lorie
Smith offers website and graphic design, marketing advice, and
social media management services. Recently, she decided to expand
her offerings to include services for couples seeking websites for
their weddings. As she envisions it, her websites will provide
couples with text, graphic arts, and videos to “celebrate” and
“conve[y ]” the “details” of their “unique love story.” App.
to Pet. for Cert. 182a, 187a, 198a. The websites will discuss how
the couple met, explain their backgrounds, families, and future
plans, and provide information about their upcoming wedding. All of
the text and graphics on these websites will be “original,”
“customized,” and “tailored” creations. Id. , at 187a. The
websites will be “expressive in nature,” designed “to communicate a
particular message.” Id. , at 181a. Viewers will know, too,
“that the websites are [Ms. Smith’s] original artwork,” for the
name of the company she owns and operates by herself will be
displayed on every one. Id. , at 187a.

															While Ms. Smith has laid the groundwork for her
new venture, she has yet to carry out her plans. She worries that,
if she does so, Colorado will force her to express views with which
she disagrees. Ms. Smith provides her website and graphic services
to customers regardless of their race, creed, sex, or sexual
orientation. Id. , at 184a. But she has never created
expressions that contradict her own views for anyone—whether that
means generating works that encourage violence, demean another
person, or defy her religious beliefs by, say, promoting atheism.
See ibid. ; see also Tr. of Oral Arg. 19–20. Ms. Smith does
not wish to do otherwise now, but she worries Colorado has
different plans. Specifically, she worries that, if she enters the
wedding website business, the State will force her to convey
messages inconsistent with her belief that marriage should be
reserved to unions between one man and one woman. App. to Pet. for
Cert. 177a–190a. Ms. Smith acknowledges that her views about
marriage may not be popular in all quarters. But, she asserts, the
First Amendment’s Free Speech Clause protects her from being
compelled to speak what she does not believe. The Constitution, she
insists, protects her right to differ.

															B

															To clarify her rights, Ms. Smith filed a
lawsuit in federal district court. In that suit, she sought an
injunction to prevent the State from forcing her to create wedding
websites celebrating marriages that defy her beliefs. App. 303–305.
To secure relief, Ms. Smith first had to establish her standing to
sue. That required her to show “a credible threat” existed that
Colorado would, in fact, seek to compel speech from her that she
did not wish to produce. Susan B. Anthony List v. Driehaus , 573 U.S.
149 , 159 (2014).

															Toward that end, Ms. Smith began by directing
the court to the Colorado Anti-Discrimination Act (CADA). That law
defines a “public accommodation” broadly to include almost every
public-facing business in the State. Colo. Rev. Stat. §24–34–601(1)
(2022). In what some call its “Accommodation Clause,” the law
prohibits a public accommodation from denying “the full and equal
enjoyment” of its goods and services to any customer based on his
race, creed, disability, sexual orientation, or other statutorily
enumerated trait. §24–34–601(2)(a). Either state officials or
private citizens may bring actions to enforce the law. §§24–34–306,
24–34–602(1). And a variety of penalties can follow. Courts can
order fines up to $500 per violation. §24–34–602(1)(a). The
Colorado Commission on Civil Rights can issue cease-and-desist
orders, §24–34–306(9), and require violators to take various other
“affirmative action[s].” §24–34–605; §24–34–306(9). In the past,
these have included participation in mandatory educational programs
and the submission of ongoing compliance reports to state
officials. See Masterpiece Cakeshop, Ltd. v. Colorado
Civil Rights Comm’n , 584 U. S. ___, ___ (2018) (slip op.,
at 8).[ 1 ]

															In her lawsuit, Ms. Smith alleged that, if she
enters the wedding website business to celebrate marriages she does
endorse, she faces a credible threat that Colorado will seek to use
CADA to compel her to create websites celebrating marriages she
does not endorse. 6 F. 4th 1160, 1173–1174 (CA10 2021). As
evidence, Ms. Smith pointed to Colorado’s record of past
enforcement actions under CADA, including one that worked its way
to this Court five years ago. See Masterpiece Cakeshop , 584
U. S., at ___ (slip op., at 9); see also App. 25–155
(discussing Colorado’s other past enforcement actions).

															To facilitate the district court’s resolution of
the merits of her case, Ms. Smith and the State stipulated to a
number of facts:

															bullet10Ms. Smith is “willing to work with all
people regardless of classifications such as race, creed, sexual
orientation, and gender,” and she “will gladly create custom
graphics and websites” for clients of any sexual orientation. App.
to Pet. for Cert. 184a.

															bullet10She will not produce content that
“contradicts biblical truth” regardless of who orders it. Ibid. bullet10Her belief that marriage is a union
between one man and one woman is a sincerely held religious
conviction. Id. , at 179a.

															bullet10All of the graphic and website design
services Ms. Smith provides are “expressive.” Id. , at
181a.

															bullet10The websites and graphics Ms. Smith
designs are “original, customized” creations that “contribut[e] to
the overall messages” her business conveys “through the websites”
it creates. Id. , at 181a–182a.

															bullet10Just like the other services she
provides, the wedding websites Ms. Smith plans to create “will be
expressive in nature.” Id. , at 187a.

															bullet10Those wedding websites will be
“customized and tailored” through close collaboration with
individual couples, and they will “express Ms. Smith’s and 303
Creative’s message celebrating and promoting” her view of marriage. Id. , at 186a–187a.

															bullet10Viewers of Ms. Smith’s websites “will
know that the websites are [Ms. Smith’s and 303 Creative’s]
original artwork.” Id. , at 187a.

															bullet10To the extent Ms. Smith may not be able
to provide certain services to a potential customer, “[t]here are
numerous companies in the State of Colorado and across the nation
that offer custom website design services.” Id. , at
190a.

															C

															Ultimately, the district court ruled against
Ms. Smith. 405 F. Supp. 3d 907, 912 (Colo. 2019). So did the
Tenth Circuit. 6 F. 4th, at 1168. For its part, the Tenth
Circuit held that Ms. Smith had standing to sue. In that court’s
judgment, she had established a credible threat that, if she
follows through on her plans to offer wedding website services,
Colorado will invoke CADA to force her to create speech she does
not believe or endorse. Id ., at 1172–1175. The court pointed
to the fact that “Colorado has a history of past enforcement
against nearly identical conduct— i.e. , Masterpiece
Cakeshop ”; that anyone in the State may file a complaint
against Ms. Smith and initiate “a potentially burdensome
administrative hearing” process; and that “Colorado [has]
decline[d] to disavow future enforcement” proceedings against her. Id. , at 1174. Before us, no party challenges these
conclusions.

															Turning to the merits, however, the Tenth
Circuit held that Ms. Smith was not entitled to the injunction she
sought. The court acknowledged that Ms. Smith’s planned wedding
websites qualify as “pure speech” protected by the First Amendment. Id ., at 1176. As a result, the court reasoned, Colorado had
to satisfy “strict scrutiny” before compelling speech from her that
she did not wish to create. Id ., at 1178. Under that
standard, the court continued, the State had to show both that
forcing Ms. Smith to create speech would serve a compelling
governmental interest and that no less restrictive alternative
exists to secure that interest. Ibid . Ultimately, a divided
panel concluded that the State had carried these burdens. As the
majority saw it, Colorado has a compelling interest in ensuring
“equal access to publicly available goods and services,” and no
option short of coercing speech from Ms. Smith can satisfy that
interest because she plans to offer “unique services” that are, “by
definition, unavailable elsewhere.” Id. , at 1179–1180
(internal quotation marks omitted).

															Chief Judge Tymkovich dissented. He observed
that “ensuring access to a particular person’s” voice,
expression, or artistic talent has never qualified as “a compelling
state interest” under this Court’s precedents. Id. , at 1203.
Nor, he submitted, should courts depart from those precedents now.
“Taken to its logical end,” Chief Judge Tymkovich warned, his
colleagues’ approach would permit the government to “regulate the
messages communicated by all artists”—a result he called
“unprecedented.” Id ., at 1204.

															We granted certiorari to review the Tenth
Circuit’s disposition. 595 U. S. ___ (2022).

															II

															The framers designed the Free Speech Clause of
the First Amendment to protect the “freedom to think as you will
and to speak as you think.” Boy Scouts of America v. Dale , 530 U.S.
640 , 660–661 (2000) (internal quotation marks omitted). They
did so because they saw the freedom of speech “both as an end and
as a means.” Whitney v. California , 274 U.S.
357 , 375 (1927) (Brandeis, J., concurring); see also 12 The
Papers of James Madison 193–194 (C. Hobson & R. Rutland eds.
1979). An end because the freedom to think and speak is among our
inalienable human rights. See, e.g. , 4 Annals of Cong. 934
(1794) (Rep. Madison). A means because the freedom of thought and
speech is “indispensable to the discovery and spread of political
truth.” Whitney , 274 U. S., at 375 (Brandeis, J.,
concurring). By allowing all views to flourish, the framers
understood, we may test and improve our own thinking both as
individuals and as a Nation. For all these reasons, “[i]f there is
any fixed star in our constitutional constellation,” West
Virginia Bd. of Ed. v. Barnette , 319
U.S. 624 , 642 (1943), it is the principle that the government
may not interfere with “an uninhibited marketplace of ideas,” McCullen v. Coakley , 573 U.S.
464 , 476 (2014) (internal quotation marks omitted).

															From time to time, governments in this country
have sought to test these foundational principles. In Barnette , for example, the Court faced an effort by the
State of West Virginia to force schoolchildren to salute the
Nation’s flag and recite the Pledge of Allegiance. If the students
refused, the State threatened to expel them and fine or jail their
parents. Some families objected on the ground that the State sought
to compel their children to express views at odds with their faith
as Jehovah’s Witnesses. When the dispute arrived here, this Court
offered a firm response. In seeking to compel students to salute
the flag and recite a pledge, the Court held, state authorities had
“transcend[ed] constitutional limitations on their powers.” 319
U. S., at 642. Their dictates “invade[d] the sphere of
intellect and spirit which it is the purpose of the First Amendment
. . . to reserve from all official control.” Ibid. A similar story unfolded in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston,
Inc. , 515 U.S.
557 (1995). There, veterans organizing a St. Patrick’s Day
parade in Boston refused to include a group of gay, lesbian, and
bisexual individuals in their event. The group argued that
Massachusetts’s public accommodations statute entitled it to
participate in the parade as a matter of law. Id. , at
560–561. Lower courts agreed. Id. , at 561–566. But this
Court reversed. Id. , at 581. Whatever state law may demand,
this Court explained, the parade was constitutionally protected
speech and requiring the veterans to include voices they wished to
exclude would impermissibly require them to “alter the expressive
content of their parade.” Id. , at 572–573. The veterans’
choice of what to say (and not say) might have been unpopular, but
they had a First Amendment right to present their message undiluted
by views they did not share.

															Then there is Boy Scouts of America v. Dale . In that case, the Boy Scouts excluded James Dale, an
assistant scoutmaster, from membership after learning he was gay.
Mr. Dale argued that New Jersey’s public accommodations law
required the Scouts to reinstate him. 530 U. S., at 644–645.
The New Jersey Supreme Court sided with Mr. Dale, id. , at
646–647, but again this Court reversed, id. , at 661. The
decision to exclude Mr. Dale may not have implicated pure speech,
but this Court held that the Boy Scouts “is an expressive
association” entitled to First Amendment protection. Id. , at
656. And, the Court found, forcing the Scouts to include Mr. Dale
would “interfere with [its] choice not to propound a point of view
contrary to its beliefs.” Id. , at 654.

															As these cases illustrate, the First Amendment
protects an individual’s right to speak his mind regardless of
whether the government considers his speech sensible and well
intentioned or deeply “misguided,” Hurley , 515 U. S.,
at 574, and likely to cause “anguish” or “incalculable grief,” Snyder v. Phelps , 562 U.S.
443 , 456 (2011). Equally, the First Amendment protects acts of
expressive association. See, e.g. , Dale , 530
U. S., at 647–656; Hurley , 515 U. S., at 568–570,
579. Generally, too, the government may not compel a person to
speak its own preferred messages. See Tinker v. Des
Moines Independent Community School Dist. , 393 U.S.
503 , 505–506 (1969); see also, e.g. , Miami Herald
Publishing Co. v. Tornillo , 418
U.S. 241 , 256 (1974); Wooley v. Maynard , 430 U.S.
705 , 714 (1977); National Institute of Family and Life
Advocates v. Becerra , 585 U. S. ___, ___ (2018)
( NIFLA ) (slip op., at 8). Nor does it matter whether the
government seeks to compel a person to speak its message when he
would prefer to remain silent or to force an individual to include
other ideas with his own speech that he would prefer not to
include. See Hurley, 515 U. S., at 568–570, 576; see
also Rumsfeld v. Forum for Academic & Institutional
Rights, Inc. , 547 U.S.
47 , 63–64 (2006) ( FAIR ) (discussing cases). All that
offends the First Amendment just the same.

															III

															Applying these principles to this case, we
align ourselves with much of the Tenth Circuit’s analysis. The
Tenth Circuit held that the wedding websites Ms. Smith seeks to
create qualify as “pure speech” under this Court’s precedents. 6
F. 4th, at 1176. We agree. It is a conclusion that flows
directly from the parties’ stipulations. They have stipulated that
Ms. Smith’s websites promise to contain “images, words, symbols,
and other modes of expression.” App. to Pet. for Cert. 181a. They
have stipulated that every website will be her “original,
customized” creation. Id. , at 181a–182a. And they have
stipulated that Ms. Smith will create these websites to communicate
ideas—namely, to “celebrate and promote the couple’s wedding and
unique love story” and to “celebrat[e] and promot[e]” what Ms.
Smith understands to be a true marriage. Id. , at
186a–187a.

															A hundred years ago, Ms. Smith might have
furnished her services using pen and paper. Those services are no
less protected speech today because they are conveyed with a “voice
that resonates farther than it could from any soapbox.” Reno v. American Civil Liberties Union , 521
U.S. 844 , 870 (1997). All manner of speech—from “pictures,
films, paintings, drawings, and engravings,” to “oral utterance and
the printed word”—qualify for the First Amendment’s protections; no
less can hold true when it comes to speech like Ms. Smith’s
conveyed over the Internet. Kaplan v. California , 413 U.S.
115 , 119–120 (1973); see also Shurtleff v. Boston , 596 U. S. ___, ___–___ (2022) (slip op., at
7–8) (flags); Brown v. Entertainment Merchants Assn. , 564 U.S.
786 , 790 (2011) (video games); Hurley , 515 U. S.,
at 568–570 (parades); Ward v. Rock Against Racism , 491 U.S.
781 , 790 (1989) (music); Joseph Burstyn, Inc. v. Wilson , 343 U.S.
495 , 501–502 (1952) (movies).

															We further agree with the Tenth Circuit that the
wedding websites Ms. Smith seeks to create involve her speech. 6 F. 4th, at 1181, and n. 5. Again, the parties’
stipulations lead the way to that conclusion. See App. to Pet. for
Cert. 181a, 187a. As the parties have described it, Ms. Smith
intends to “ve[t]” each prospective project to determine whether it
is one she is willing to endorse. Id. , at 185a. She will
consult with clients to discuss “their unique stories as source
material.” Id. , at 186a. And she will produce a final story
for each couple using her own words and her own “original artwork.” Id. , at 182a–183a. Of course, Ms. Smith’s speech may combine
with the couple’s in the final product. But for purposes of the
First Amendment that changes nothing. An individual “does not
forfeit constitutional protection simply by combining multifarious
voices” in a single communication. Hurley , 515 U. S.,
at 569.

															As surely as Ms. Smith seeks to engage in
protected First Amendment speech, Colorado seeks to compel speech
Ms. Smith does not wish to provide. As the Tenth Circuit observed,
if Ms. Smith offers wedding websites celebrating marriages she
endorses, the State intends to “forc[e her] to create custom
websites” celebrating other marriages she does not. 6 F. 4th,
at 1178. Colorado seeks to compel this speech in order to “excis[e]
certain ideas or viewpoints from the public dialogue.” Turner
Broadcasting System, Inc. v. FCC , 512 U.S. 633, 642
(1994). Indeed, the Tenth Circuit recognized that the coercive
“[e]liminati[on]” of dissenting “ideas” about marriage constitutes
Colorado’s “very purpose” in seeking to apply its law to Ms. Smith.
6 F. 4th, at 1178.

															We part ways with the Tenth Circuit only when it
comes to the legal conclusions that follow. While that court
thought Colorado could compel speech from Ms. Smith consistent with
the Constitution, our First Amendment precedents laid out above
teach otherwise. In Hurley , the Court found that
Massachusetts impermissibly compelled speech in violation of the
First Amendment when it sought to force parade organizers to accept
participants who would “affec[t] the[ir] message.” 515 U. S.,
at 572. In Dale , the Court held that New Jersey intruded on
the Boy Scouts’ First Amendment rights when it tried to require the
group to “propound a point of view contrary to its beliefs” by
directing its membership choices. 530 U. S., at 654. And in Barnette , this Court found impermissible coercion when West
Virginia required schoolchildren to recite a pledge that
contravened their convictions on threat of punishment or expulsion.
319 U. S., at 626–629. Here, Colorado seeks to put Ms. Smith
to a similar choice: If she wishes to speak, she must either speak
as the State demands or face sanctions for expressing her own
beliefs, sanctions that may include compulsory participation in
“remedial . . . training,” filing periodic compliance
reports as officials deem necessary, and paying monetary fines.
App. 120; supra , at 3. Under our precedents, that “is
enough,” more than enough, to represent an impermissible abridgment
of the First Amendment’s right to speak freely. Hurley , 515
U. S., at 574.

															Consider what a contrary approach would mean.
Under Colorado’s logic, the government may compel anyone who speaks
for pay on a given topic to accept all commissions on that same
topic—no matter the underlying message—if the topic somehow
implicates a customer’s statutorily protected trait. 6 F. 4th,
at 1198 (Tymkovich, C. J., dissenting). Taken seriously, that
principle would allow the government to force all manner of
artists, speechwriters, and others whose services involve speech to
speak what they do not believe on pain of penalty. The government
could require “an unwilling Muslim movie director to make a film
with a Zionist message,” or “an atheist muralist to accept a
commission celebrating Evangelical zeal,” so long as they would
make films or murals for other members of the public with different
messages. Id ., at 1199. Equally, the government could force
a male website designer married to another man to design websites
for an organization that advocates against same-sex marriage. See
Brief for Petitioners 26–27. Countless other creative
professionals, too, could be forced to choose between remaining
silent, producing speech that violates their beliefs, or speaking
their minds and incurring sanctions for doing so. See, e.g. ,
Brief for Creative Professionals et al. as Amici Curiae 5–10; Brief for First Amendment Scholars as Amici Curiae 19–22. As our precedents recognize, the First Amendment tolerates
none of that.

															In saying this much, we do not question the
vital role public accommodations laws play in realizing the civil
rights of all Americans. This Court has recognized that governments
in this country have a “compelling interest” in eliminating
discrimination in places of public accommodation. Roberts v. United States Jaycees , 468
U.S. 609 , 628 (1984); see also Hurley , 515 U. S.,
at 571–572. This Court has recognized, too, that public
accommodations laws “vindicate the deprivation of personal dignity
that surely accompanies denials of equal access to public
establishments.” Heart of Atlanta Motel, Inc. v. United
States , 379 U.S.
241 , 250 (1964) (internal quotation marks omitted); see also, e.g. , Katzenbach v. McClung , 379 U.S.
294 (1964); Newman v. Piggie Park Enterprises,
Inc. , 390 U.S.
400 (1968) ( per curiam ).

															Over time, governments in this country have
expanded public accommodations laws in notable ways too. Statutes
like Colorado’s grow from nondiscrimination rules the common law
sometimes imposed on common carriers and places of traditional
public accommodation like hotels and restaurants. Dale , 530
U. S., at 656–657. Often, these enterprises exercised
something like monopoly power or hosted or transported others or
their belongings much like bailees. See, e.g., Liverpool
& Great Western Steam Co. v. Phenix Ins. Co. , 129 U.S.
397 , 437 (1889); Primrose v. Western Union Telegraph
Co. , 154 U.S.
1 , 14 (1894). Over time, some States, Colorado included, have
expanded the reach of these nondiscrimination rules to cover
virtually every place of business engaged in any sales to the
public. Compare 1885 Colo. Sess. Laws pp. 132–133 (a short list of
entities originally bound by the State’s public accommodations law)
with Colo. Rev. Stat. §24–34–601(1) (currently defining a public
accommodation to include “any place of business engaged in any
sales to the public”).

															Importantly, States have also expanded their
laws to prohibit more forms of discrimination. Today, for example,
approximately half the States have laws like Colorado’s that
expressly prohibit discrimination on the basis of sexual
orientation.[ 2 ] And, as we have
recognized, this is entirely “unexceptional.” Masterpiece
Cakeshop , 584 U. S., at ___ (slip op., at 10). States may
“protect gay persons, just as [they] can protect other classes of
individuals, in acquiring whatever products and services they
choose on the same terms and conditions as are offered to other
members of the public. And there are no doubt innumerable goods and
services that no one could argue implicate the First Amendment.” Ibid. ; see also Hurley , 515 U. S., at 571–572; 6
F. 4th, at 1203 (Tymkovich, C. J., dissenting). Consistent
with all of this, Ms. Smith herself recognizes that Colorado and
other States are generally free to apply their public
accommodations laws, including their provisions protecting gay
persons, to a vast array of businesses. Reply Brief 15; see Tr. of
Oral Arg. 45–46.

															At the same time, this Court has also recognized
that no public accommodations law is immune from the demands of the
Constitution. In particular, this Court has held, public
accommodations statutes can sweep too broadly when deployed to
compel speech. In Hurley , the Court commented favorably on
Massachusetts’ public accommodations law, but made plain it could
not be “applied to expressive activity” to compel speech. 515
U. S., at 571, 578. In Dale , the Court observed that
New Jersey’s public accommodations law had many lawful applications
but held that it could “not justify such a severe intrusion on the
Boy Scouts’ rights to freedom of expressive association.” 530
U. S., at 659. And, once more, what was true in those cases
must hold true here. When a state public accommodations law and the
Constitution collide, there can be no question which must prevail.
U. S. Const., Art. VI, cl. 2.

															Nor is it any answer, as the Tenth Circuit
seemed to suppose, that Ms. Smith’s services are “unique.” 6
F. 4th, at 1180. In some sense, of course, her voice is
unique; so is everyone’s. But that hardly means a State may coopt
an individual’s voice for its own purposes. In Hurley , the
veterans had an “enviable” outlet for speech; after all, their
parade was a notable and singular event. 515 U. S., at 560,
577–578. In Dale , the Boy Scouts offered what some might
consider a unique experience. 530 U. S., at 649–650. But in
both cases this Court held that the State could not use its public
accommodations statute to deny speakers the right “to choose the
content of [their] own message[s].” Hurley , 515 U. S.,
at 573; see Dale , 530 U. S., at 650–656. Were the rule
otherwise, the better the artist, the finer the writer, the more
unique his talent, the more easily his voice could be conscripted
to disseminate the government’s preferred messages. That would not
respect the First Amendment; more nearly, it would spell its
demise.

															IV

															Before us, Colorado appears to distance itself
from the Tenth Circuit’s reasoning. Now, the State seems to
acknowledge that the First Amendment does forbid it from
coercing Ms. Smith to create websites endorsing same-sex marriage
or expressing any other message with which she disagrees. See Brief
for Respondents 12 (disclaiming any interest in “interfer[ing] with
[Ms. Smith’s] choice to offer only websites of [her] own design”);
see also Brief for United States as Amicus Curiae 19
(conceding that “constitutional concerns” would arise if Colorado
“require[d] petitione[r] to design a website” that she “would not
create or convey for any client”). Instead, Colorado devotes most
of its efforts to advancing an alternative theory for
affirmance.

															The State’s alternative theory runs this way. To
comply with Colorado law, the State says, all Ms. Smith must do is
repurpose websites she will create to celebrate marriages she does endorse for marriages she does not . She sells a
product to some, the State reasons, so she must sell the same
product to all. Brief for Respondents 15, 20. At bottom, Colorado’s
theory rests on a belief that the Tenth Circuit erred at the outset
when it said this case implicates pure speech. Id. , at 19.
Instead, Colorado says, this case involves only the sale of an
ordinary commercial product and any burden on Ms. Smith’s speech is
purely “incidental.” Id. , at 18, 25–28; see Tr. of Oral Arg.
65, 97–98. On the State’s telling, then, speech more or less
vanishes from the picture—and, with it, any need for First
Amendment scrutiny. In places, the dissent seems to advance the
same line of argument. Post , at 29 (opinion of Sotomayor,
J.).

															This alternative theory, however, is difficult
to square with the parties’ stipulations. As we have seen, the
State has stipulated that Ms. Smith does not seek to sell an
ordinary commercial good but intends to create “customized and
tailored” speech for each couple. App. to Pet. for Cert. 181a,
187a. The State has stipulated that “[e]ach website 303 Creative
designs and creates is an original, customized creation for each
client.” Id ., at 181a. The State has stipulated, too, that
Ms. Smith’s wedding websites “will be expressive in nature, using
text, graphics, and in some cases videos to celebrate and promote
the couple’s wedding and unique love story.” Id. , at 187a.
As the case comes to us, then, Colorado seeks to compel just the
sort of speech that it tacitly concedes lies beyond the reach of
its powers.

															Of course, as the State emphasizes, Ms. Smith
offers her speech for pay and does so through 303 Creative LLC, a
company in which she is “the sole member-owner.” Id. , at
181a; see also post , at 33 (opinion of Sotomayor, J.)
(emphasizing Ms. Smith’s “commercial” activity). But none of that
makes a difference. Does anyone think a speechwriter loses his
First Amendment right to choose for whom he works if he accepts
money in return? Or that a visual artist who accepts commissions
from the public does the same? Many of the world’s great works of
literature and art were created with an expectation of
compensation. Nor, this Court has held, do speakers shed their
First Amendment protections by employing the corporate form to
disseminate their speech. This fact underlies our cases involving
everything from movie producers to book publishers to newspapers.
See, e.g., Joseph Burstyn, Inc. , 343 U. S., at
497–503; Simon & Schuster, Inc. v. Members of
N. Y. State Crime Victims Bd. , 502
U.S. 105 , 114–116 (1991); Grosjean v. American Press
Co. , 297 U.S.
233 , 240–241, 249 (1936).

															Colorado next urges us to focus on the reason Ms. Smith refuses to offer the speech it seeks to
compel. She refuses, the State insists, because she objects to the
“protected characteristics” of certain customers. Brief for
Respondents 16; see also post , at 26–27, 31–32 (opinion of
Sotomayor, J.) (reciting the same argument). But once more, the
parties’ stipulations speak differently. 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. App. to Pet. for Cert. 184a.
That is a condition, the parties acknowledge, Ms. Smith applies to
“all customers.” Ibid. Ms. Smith stresses, too, that she has
not and will not create expressions that defy any of her beliefs
for any customer, whether that involves encouraging violence,
demeaning another person, or promoting views inconsistent with her
religious commitments. See Tr. of Oral Arg. 18–20. Nor, in any
event, do the First Amendment’s protections belong only to speakers
whose motives the government finds worthy; its protections belong
to all, including to speakers whose motives others may find
misinformed or offensive. See Federal Election Comm’n v. Wisconsin Right to Life, Inc. , 551 U.S.
449 , 468–469 (2007) (opinion of Roberts, C. J.) (observing
that “a speaker’s motivation is entirely irrelevant” (internal
quotation marks omitted)); National Socialist Party of
America v. Skokie , 432 U.S.
43 , 43–44 (1977) ( per curiam ) (upholding
free-speech rights of participants in a Nazi parade); Snyder , 562 U. S., at 456–457 (same for protestors of a
soldier’s funeral).[ 3 ]

															Failing all else, Colorado suggests that this
Court’s decision in FAIR supports affirmance. See also post , at 25–26 (opinion of Sotomayor, J.) (making the same
argument). In FAIR , a group of schools challenged a law
requiring them, as a condition of accepting federal funds, to
permit military recruiters space on campus on equal terms with
other potential employers. 547 U. S., at 51–52, 58. The only
expressive activity required of the law schools, the Court found,
involved the posting of logistical notices along these lines:
“ ‘The U. S. Army recruiter will meet interested students in
Room 123 at 11 a.m.’ ” Id ., at 61–62. And, the Court
reasoned, compelled speech of this sort was “incidental” and a “far
cry” from the speech at issue in our “leading First Amendment
precedents [that] have established the principle that freedom of
speech prohibits the government from telling people what they must
say.” Ibid. ; see also NIFLA , 585 U. S., at ___
(slip op., at 8).

															It is a far cry from this case too. To be sure,
our cases have held that the government may sometimes “requir[e]
the dissemination of purely factual and uncontroversial
information,” particularly in the context of “commercial
advertising.” Hurley , 515 U. S., at 573 (internal
quotation marks omitted); see also NIFLA , 585 U. S., at
___ (slip op., at 8); Riley v. National Federation of
Blind of N. C., Inc. , 487 U.S.
781 , 795–796 (1988). But this case involves nothing like that.
Here, Colorado does not seek to impose an incidental burden on
speech. It seeks to force an individual to “utter what is not in
[her] mind” about a question of political and religious
significance. Barnette , 319 U. S., at 634. And that, FAIR reaffirmed, is something the First Amendment does not
tolerate. No government, FAIR recognized, may affect a
“speaker’s message” by “forc[ing]” her to “accommodate” other
views, 547 U. S., at 63; no government may
“ ‘alter’ ” the “ ‘expressive content’ ” of her
message, id. , at 63–64 (alteration omitted); and no
government may “interfer[e] with” her “desired message,” id. , at 64.

															V

															It is difficult to read the dissent and
conclude we are looking at the same case. Much of it focuses on the
evolution of public accommodations laws, post , at 7–13, and
the strides gay Americans have made towards securing equal justice
under law, post , at 14–17. And, no doubt, there is much to
applaud here. But none of this answers the question we face today:
Can a State force someone who provides her own expressive services
to abandon her conscience and speak its preferred message
instead?

															When the dissent finally gets around to that
question—more than halfway into its opinion—it reimagines the facts
of this case from top to bottom. The dissent claims that Colorado
wishes to regulate Ms. Smith’s “conduct,” not her speech. Post , at 24–29. Forget Colorado’s stipulation that Ms.
Smith’s activities are “expressive,” App. to Pet. for Cert. 181a,
and the Tenth Circuit’s conclusion that the State seeks to compel
“pure speech,” 6 F. 4th, at 1176. The dissent chides us for
deciding a pre-enforcement challenge. Post , at 23. But it
ignores the Tenth Circuit’s finding that Ms. Smith faces a credible
threat of sanctions unless she conforms her views to the State’s. 6
F. 4th, at 1172–1175. The dissent suggests (over and over
again) that any burden on speech here is “incidental.” Post ,
at 24, 26–30, 32–33. All despite the Tenth Circuit’s finding that
Colorado intends to force Ms. Smith to convey a message she does
not believe with the “very purpose” of “[e]liminating
. . . ideas” that differ from its own. 6 F. 4th, at
1178.[ 4 ]

															Nor does the dissent’s reimagination end there.
It claims that, “for the first time in its history,” the Court
“grants a business open to the public” a “right to refuse to serve
members of a protected class.” Post , at 1; see also id. , at 26, n. 10, 35. Never mind that we do no such
thing and Colorado itself has stipulated Ms. Smith will (as
CADA requires) “work with all people regardless of . . .
sexual orientation.” App. to Pet. for Cert. 184a. Never mind, too,
that it is the dissent that would have this Court do something
truly novel by allowing a government to coerce an individual to
speak contrary to her beliefs on a significant issue of personal
conviction, all in order to eliminate ideas that differ from its
own.

															There is still more. The dissent asserts that we
“sweep under the rug petitioners’ challenge to CADA’s Communication
Clause.” Post , at 26. This despite the fact the parties and
the Tenth Circuit recognized that Ms. Smith’s Communication Clause
challenge hinges on her Accommodation Clause challenge. (So much so
that Colorado devoted less than two pages at the tail end of its
brief to the Communication Clause and the Tenth Circuit afforded it
just three paragraphs in its free-speech analysis. See Brief for
Respondents 44–45; 6 F. 4th, at 1182–1183.)[ 5 ] The dissent even suggests that our
decision today is akin to endorsing a “separate but equal” regime
that would allow law firms to refuse women admission into
partnership, restaurants to deny service to Black Americans, or
businesses seeking employees to post something like a “White
Applicants Only” sign. Post , at 1, 16–21, 26, 28–29, 32, and
n. 13, 37. Pure fiction all.

															In some places, the dissent gets so turned
around about the facts that it opens fire on its own position. For
instance: While stressing that a Colorado company cannot refuse
“the full and equal enjoyment of [its] services” based on a
customer’s protected status, post , at 27, the dissent
assures us that a company selling creative services “to the public” does have a right “to decide what messages to include or not
to include,” post , at 28. But if that is true, what are we
even debating?

															Instead of addressing the parties’ stipulations
about the case actually before us, the dissent spends much of its
time adrift on a sea of hypotheticals about photographers,
stationers, and others, asking if they too provide expressive
services covered by the First Amendment. Post , at 27–29,
31–32, 37. But those cases are not this case. Doubtless,
determining what qualifies as expressive activity protected by the
First Amendment can sometimes raise difficult questions. But this
case presents no complication of that kind. The parties have stipulated that Ms. Smith seeks to engage in expressive
activity. And the Tenth Circuit has recognized her services involve
“pure speech.” See supra , at 6, 9. Nothing the dissent says
can alter this—nor can it displace the First Amendment protections
that follow.

															The dissent’s treatment of precedent parallels
its handling of the facts. Take its remarkable suggestion that a
government forcing an individual to create speech on weighty issues
with which she disagrees—all, as the Tenth Circuit found, with the
goal of “[e]liminating” views it does not share, 6 F. 4th, at
1178—only “incidental[ly]” burdens First Amendment liberties. Post , at 26–35 . Far from embracing a notion like
that, our cases have rejected it time after time—including in the
context of public accommodations laws. See Parts II–IV, supra ; FAIR , 547 U. S., at 61–64 (no government
may affect a “speaker’s own message” by “forc[ing]” her to
“accommodate” views she does not hold); Hurley , 515
U. S., at 563, 566 (using a public accommodations law to
compel parade organizers to include speech they did not believe was
no mere “ ‘incidental’ ” infringement on First Amendment
rights); Dale , 530 U. S., at 659 (employing a public
accommodations law to require the Boy Scouts to alter their
admissions policies had more than “an incidental effect on
protected speech”).[ 6 ]

															When it finally gets around to discussing these
controlling precedents, the dissent offers a wholly unpersuasive
attempt to distinguish them. The First Amendment protections
furnished in Barnette , Hurley , and Dale , the
dissent declares, were limited to schoolchildren and
“nonprofit[s],” and it is “dispiriting” to think they might also
apply to Ms. Smith’s “commercial” activity. Post , at 32–35.
But our precedents endorse nothing like the limits the dissent
would project on them. Instead, as we have seen, the First
Amendment extends to all persons engaged in expressive conduct,
including those who seek profit (such as speechwriters, artists,
and website designers). See supra , at 16–17. If anything is
truly dispiriting here, it is the dissent’s failure to take
seriously this Court’s enduring commitment to protecting the speech
rights of all comers, no matter how controversial—or even
repugnant—many may find the message at hand.

															Finally, the dissent comes out and says what it
really means: Once Ms. Smith offers some speech, Colorado “would
require [her] to create and sell speech, notwithstanding [her]
sincere objection to doing so”—and the dissent would force her to
comply with that demand. Post , at 29–30. Even as it does so,
however, the dissent refuses to acknowledge where its reasoning
leads. In a world like that, as Chief Judge Tymkovich highlighted,
governments could force “an unwilling Muslim movie director to make
a film with a Zionist message,” they could compel “an atheist
muralist to accept a commission celebrating Evangelical zeal,” and
they could require a gay website designer to create websites for a
group advocating against same-sex marriage, so long as these
speakers would accept commissions from the public with different
messages. 6 F. 4th, at 1199 (dissenting opinion). Perhaps the
dissent finds these possibilities untroubling because it trusts
state governments to coerce only “enlightened” speech. But if that
is the calculation, it is a dangerous one indeed.[ 7 ]

															The dissent is right about one thing—“[w]hat a
difference” time can make. See post , at 2 (internal
quotation marks omitted). Eighty years ago in Barnette , this
Court affirmed that “no official, high or petty, can prescribe what
shall be orthodox in politics, nationalism, religion, or other
matters of opinion.” 319 U. S., at 642. The Court did so
despite the fact that the speech rights it defended were deeply
unpopular; at the time, the world was at war and many thought
respect for the flag and the pledge “essential for the welfare of
the state.” Id ., at 662–663 (Frankfurter, J., dissenting);
see also id. , at 636, 640 (majority opinion). Fifty years
ago, this Court protected the right of Nazis to march through a
town home to many Holocaust survivors and along the way espouse
ideas antithetical to those for which this Nation stands. See Skokie , 432 U. S., at 43–44; supra , at 17–18.
Five years ago, in a case the dissenters highlight at the outset of
their opinion, the Court stressed that “it is not . . .
the role of the State or its officials to prescribe what shall be
offensive.” Masterpiece Cakeshop , 584 U. S., at ___
(slip op., at 16). And just days ago, Members of today’s dissent
joined in holding that the First Amendment restricts how States may
prosecute stalkers despite the “harm[ful],” “low-value,” and
“upsetting” nature of their speech. Counterman v. Colorado , 600 U. S. ___, ___ (2023) (slip op., at 6); id. , at ___ (Sotomayor, J., concurring in part and
concurring in judgment) (slip op., at 5).

															Today, however, the dissent abandons what this
Court’s cases have recognized time and time again: A commitment to
speech for only some messages and some persons is no
commitment at all. By approving a government’s effort to
“[e]liminat[e]” disfavored “ideas,” 6 F. 4th, at 1178, today’s
dissent is emblematic of an unfortunate tendency by some to defend
First Amendment values only when they find the speaker’s message
sympathetic. But “[i]f liberty means anything at all, it means the
right to tell people what they do not want to hear.” 6 F. 4th,
at 1190 (Tymkovich, C. J., dissenting) (quoting G.
Orwell).

															*

															In this case, Colorado seeks to force an
individual to speak in ways that align with its views but defy her
conscience about a matter of major significance. In the past, other
States in Barnette , Hurley , and Dale have
similarly tested the First Amendment’s boundaries by seeking to
compel speech they thought vital at the time. But, as this Court
has long held, the opportunity to think for ourselves and to
express those thoughts freely is among our most cherished liberties
and part of what keeps our Republic strong. Of course, abiding the
Constitution’s commitment to the freedom of speech means all of us
will encounter ideas we consider “unattractive,” post , at 38
(opinion of Sotomayor, J.), “misguided, or even hurtful,” Hurley , 515 U. S., at 574. But tolerance, not coercion,
is our Nation’s answer. The First Amendment envisions the United
States as a rich and complex place where all persons are free to
think and speak as they wish, not as the government demands.
Because Colorado seeks to deny that promise, the judgment is Reversed. Notes 1 In addition to the
Accommodation Clause, CADA contains a “Com-munication Clause” that
prohibits a public accommodation from “publish[ing] . . .
any written . . . communication” indicating that a person
will be denied “the full and equal enjoyment” of services or that
he will be “unwelcome, objectionable, unacceptable, or undesirable”
based on a pro-tected classification. Colo. Rev. Stat.
§24–34–601(2)(a) (2022). The Communication Clause, Ms. Smith notes,
prohibits any speech inconsistent with the Accommodation Clause.
Because Colorado concedes that its authority to apply the
Communication Clause to Ms. Smith stands or falls with its
authority to apply the Accommodation Clause, see Brief for
Respondents 44–45, we focus our attention on the Accommodation
Clause. 2 Besides Colorado, this includes
Cal. Civ. Code Ann. §51 (West 2020); Conn. Gen. Stat. §46a–81d
(2021); Del. Code Ann., Tit. 6, §4504 (2019); Haw. Rev. Stat.
§489–3 (Cum. Supp. 2021); Ill. Comp. Stat., ch. 775, §5/1–102 (West
2021); Iowa Code §216.7 (2022); Me. Rev. Stat. Ann., Tit. 5,
§4591 (2013); Md. State Govt. Code Ann. §20–304 (2021); Mass. Gen.
Laws, ch. 272, §98 (2021); Mich. Comp. Laws Ann. §37.2302 (West
2013); Minn. Stat. §363 A. 11 (2022); Nev. Rev. Stat. §651.070
(2017); N. H. Rev. Stat. Ann. §354–A:17 (2022); N. J. Stat. Ann.
§10:5–12 (West 2013); N. M. Stat. Ann. §28–1–7 (2022); N. Y.
Exec. Law Ann. §291(2) (West 2019); Ore. Rev. Stat. §659 A. 403
(2021); R. I. Gen. Laws §11–24–2 (2002); Vt. Stat. Ann., Tit. 9,
§4502(a) (2020); Va. Code Ann. §2.2–3904 (2022); Wash. Rev. Code
§49.60.215 (2022); Wis. Stat. §106.52 (2019–2020). See also Brief
for Local Governments et al. as Amici Curiae 5 (noting that
many local governments have enacted similar rules). 3 The dissent labels the
distinction between status and message “amusing” and
“embarrassing.” Post , at 32. But in doing so, the dissent
ignores a fundamental feature of the Free Speech Clause. While it
does not protect status-based discrimination unrelated to
expression, generally it does protect a speaker’s right to
control her own message—even when we may disapprove of the
speaker’s motive or the message itself. The dissent’s derision is
no answer to any of this. It ignores, too, the fact that Colorado itself has, in other contexts, distinguished status-based
discrimination (forbidden) from the right of a speaker to control
his own message (protected). See App. 131, 137, 140, 143–144, 149,
152, 154. (Truth be told, even the dissent acknowledges “th[is]
distinction” elsewhere in its opinion. Post , at 31,
n. 11.) Nor is the distinction unusual in societies committed
both to nondiscrimination rules and free expression. See, e.g. , Lee v. Ashers Baking Co. Ltd. , [2018]
UKSC 49, p. 14 (“The less favourable treatment was afforded to the
message not to the man.”). Does the dissent really find all that
amusing and embarrassing? 4 Perplexingly, too, the dissent
suggests that, by recounting the Tenth Circuit’s conclusion on this
score, we “misunderstan[d] this case” and “invo[ke] . . .
Orwellian thought policing.” Post , at 34, n.
14. 5 Why does the dissent try to
refocus this case around the Communication Clause? Perhaps because
the moment one acknowledges the parties’ stipulations—and the fact
Colorado seeks to use its Accommodation Clause to compel speech in
order to ensure conformity to its own views on a topic of major
significance—the First Amendment implications become obvious. As
does the fact that our case is nothing like a typical application
of a public accommodations law requiring an ordinary,
non-expressive business to serve all customers or consider all
applicants. Our decision today does not concern—much less
endorse—anything like the “ ‘straight couples only’ ”
notices the dissent conjures out of thin air. Post , at 26,
n. 10. Nor do the parties discuss anything of the sort in
their stipulations. 6 The dissent observes that
public accommodations laws may sometimes touch on speech
incidentally as they work to ensure ordinary, non-expressive goods
and services are sold on equal terms. Cf. post , at 24–27
(citing Sorrell v. IMS Health Inc. , 564 U.S.
552 (2011); Rumsfeld v. FAIR , 547 U.S.
47 (2006); United States v. O’Brien , 391 U.S.
367 (1968)). But as Hurley observed, there is nothing
“incidental” about an infringement on speech when a public
accommodations law is applied “peculiar[ly]” to compel expressive
activity. Hurley v. Irish-American Gay, Lesbian and
Bisexual Group of Boston, Inc. , 515 U.S.
557 , 572 (1995).The dissent notes that our case law has not
sustained every First Amendment objection to an antidiscrimination
rule, as with a law firm that sought to exclude women from
partnership. Post , at 19–21 (citing Hishon v. King
& Spalding , 467 U.S.
69 (1984); Roberts v. United States Jaycees , 468 U.S.
609 (1984)). But the dissent disregards Dale ’s holding
that context matters and that very different considerations come
into play when a law is used to force individuals to toe the
government’s preferred line when speaking (or associating to
express themselves) on matters of significance. Boy Scouts of
America v. Dale , 530 U.S.
640 , 648–653 (2000). 7 Perhaps the dissent finds these
possibilities untroubling for another reason. It asserts that CADA
does not apply to “[m]any filmmakers, visual artists, and writers”
because they do not “hold out” their services to the public. Post , at 27. But the dissent cites nothing to support its
claim and instead, once more, fights the facts. As we have seen,
Colorado’s law today applies to “ any place of business
engaged in any sales to the public.” Colo. Rev. Stat.
§24–34–601(1) (emphasis added); see also Part III, supra .
And the dissent can hardly dispute that many artists and writers
accept commissions from the public. Brief for Creative
Professionals et al. as Amici Curiae 5–21. Certainly,
Colorado does not advance anything like the dissent’s argument; it
calls any exemption to its law for “artists” and others who provide
“custom” services “unworkable.” Brief for Respondents 28–31
(internal quotation marks omitted). SUPREME COURT OF THE UNITED STATES

															_________________

															No. 21–476

															_________________

															303 CREATIVE LLC, et al., PETITIONERS v. AUBREY ELENIS, et al.

															on writ of certiorari to the united states
court of appeals for the tenth circuit

															[June 30, 2023]

															Justice Sotomayor, with whom Justice Kagan and
Justice Jackson join, dissenting.

															Five years ago, this Court recognized the
“general rule” that religious and philosophical objections to gay
marriage “do not allow business owners and other actors in the
economy and in society to deny protected persons equal access to
goods and services under a neutral and generally applicable public
accommodations law.” Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n , 584 U. S. ___, ___ (2018)
(slip op., at 9). The Court also recognized the “serious stigma”
that would result if “purveyors of goods and services who object to
gay marriages for moral and religious reasons” were “allowed to put
up signs saying ‘no goods or services will be sold if they will be
used for gay marriages.’ ” Id. , at ___ (slip op., at
12).

															Today, the Court, for the first time in its
history, grants a business open to the public a constitutional
right to refuse to serve members of a protected class.
Specifically, the Court holds that the First Amendment exempts a
website-design company from a state law that prohibits the company
from denying wedding websites to same-sex couples if the company
chooses to sell those websites to the public. The Court also holds
that the company has a right to post a notice that says, “ ‘no
[wedding websites] will be sold if they will be used for gay
marriages.’ ” Ibid. “What a difference five years makes.” Carson v. Makin , 596 U. S. ___, ___ (2022)
(Sotomayor, J., dissenting) (slip op., at 5). And not just at the
Court. Around the country, there has been a backlash to the
movement for liberty and equality for gender and sexual minorities.
New forms of inclusion have been met with reactionary exclusion.
This is heartbreaking. Sadly, it is also familiar. When the civil
rights and women’s rights movements sought equality in public life,
some public establishments refused. Some even claimed, based on
sincere religious beliefs, constitutional rights to discriminate.
The brave Justices who once sat on this Court decisively rejected
those claims.

															Now the Court faces a similar test. A business
open to the public seeks to deny gay and lesbian customers the full
and equal enjoyment of its services based on the owner’s religious
belief that same-sex marriages are “false.” The business argues,
and a majority of the Court agrees, that because the business
offers services that are customized and expressive, the Free Speech
Clause of the First Amendment shields the business from a generally
applicable law that prohibits discrimination in the sale of
publicly available goods and services. That is wrong. Profoundly
wrong. As I will explain, the law in question targets conduct, not
speech, for regulation, and the act of discrimination has
never constituted protected expression under the First Amendment.
Our Constitution contains no right to refuse service to a
disfavored group. I dissent.

															I

															A

															A “public accommodations law” is a law that
guarantees to every person the full and equal enjoyment of places
of public accommodation without unjust discrimination. The American
people, through their elected representatives, have enacted such
laws at all levels of government: The federal Civil Rights Act of
1964 and the Americans with Disabilities Act of 1990 prohibit
discrimination by places of public accommodation on the basis of
race, color, religion, national origin, or disability.[ 1 ] All but five States have analogous
laws that prohibit discrimination on the basis of these and other
traits, such as age, sex, sexual orientation, and gender
identity.[ 2 ] And numerous local
laws offer similar protections.

															The people of Colorado have adopted the Colorado
Anti-Discrimination Act (CADA), which provides:

															“It is a discriminatory practice and
unlawful for a person, directly or indirectly, to refuse, withhold
from, or deny to an individual or a group, because of disability,
race, creed, color, sex, sexual orientation, gender identity,
gender expression, marital status, national origin, or ancestry,
the full and equal enjoyment of the goods, services, facilities,
privileges, advantages, or accommodations of a place of public
accommodation.” Colo. Rev. Stat. §24–34–601(2)(a).

															This provision, known as the Act’s
“Accommodation Clause,” applies to any business engaged in sales
“to the public.” §24–34–601(1). The Accommodation Clause does not
apply to any “church, synagogue, mosque, or other place that is
principally used for religious purposes.” Ibid. In addition, CADA contains what is referred to
as the Act’s “Communication Clause,” which makes it unlawful to
advertise that services “will be refused, withheld from, or
denied,” or that an individual is “unwelcome” at a place of public
accommodation, based on the same protected traits.
§24–34–601(2)(a). In other words, just as a business open to the
public may not refuse to serve customers based on race, religion,
or sexual orientation, so too the business may not hang a sign that
says, “No Blacks, No Muslims, No Gays.”

															A public accommodations law has two core
purposes. First, the law ensures “ equal access to publicly
available goods and services.” Roberts v. United States
Jaycees , 468
U.S. 609 , 624 (1984) (emphasis added). For social groups that
face discrimination, such access is vital. All the more so if the
group is small in number or if discrimination against the group is
widespread. Equal access is mutually beneficial: Protected persons
receive “equally effective and meaningful opportunity to benefit
from all aspects of life in America,” 135 Cong. Rec. 8506 (1989)
(remarks of Sen. Harkin) (Americans with Disabilities Act), and
“society,” in return, receives “the benefits of wide participation
in political, economic, and cultural life.” Roberts , 468
U. S., at 625.

															Second, a public accommodations law ensures equal dignity in the common market. Indeed, that is the
law’s “fundamental object”: “to vindicate ‘the deprivation of
personal dignity that surely accompanies denials of equal access to
public establishments.’ ” Heart of Atlanta Motel, Inc. v. United States , 379 U.S.
241 , 250 (1964) (quoting S. Rep. No. 872, 88th Cong., 2d
Sess., 16 (1964)). This purpose does not depend on whether
goods or services are otherwise available. “ ‘Discrimination
is not simply dollars and cents, hamburgers and movies; it is the
humiliation, frustration, and embarrassment that a person must
surely feel when he is told that he is unacceptable as a member of
the public because of his [social identity]. It is equally the
inability to explain to a child that regardless of education,
civility, courtesy, and morality he will be denied the right to
enjoy equal treatment.’ ” 379 U. S., at 292 (Goldberg,
J., concurring). When a young Jewish girl and her parents come
across a business with a sign out front that says, “ ‘No dogs
or Jews allowed,’ ”[ 3 ] the
fact that another business might serve her family does not redress
that “stigmatizing injury,” Roberts , 468 U. S., at 625.
Or, put another way, “the hardship Jackie Robinson suffered when on
the road” with his baseball team “was not an inability to find some hotel that would have him; it was the indignity of not
being allowed to stay in the same hotel as his white
teammates.” J. Oleske, The Evolution of Accommodation, 50 Harv.
Civ. Rights-Civ. Lib. L. Rev. 99, 138 (2015).

															To illustrate, imagine a funeral home in rural
Mississippi agrees to transport and cremate the body of an elderly
man who has passed away, and to host a memorial lunch. Upon
learning that the man’s surviving spouse is also a man, however,
the funeral home refuses to deal with the family. Grief stricken,
and now isolated and humiliated, the family desperately searches
for another funeral home that will take the body. They eventually
find one more than 70 miles away. See First Amended Complaint in Zawadski v. Brewer Funeral Services, Inc. , No.
55CI1–17–cv–00019 (C. C. Pearl River Cty., Miss., Mar. 7,
2017), pp. 4–7.[ 4 ] This
ostracism, this otherness, is among the most distressing feelings
that can be felt by our social species. K. Williams,
Ostracism, 58 Ann. Rev. Psychology 425, 432–435 (2007).

															Preventing the “unique evils” caused by “acts of
invidious discrimination in the distribution of publicly available
goods, services, and other advantages” is a compelling state
interest “of the highest order.” Roberts , 468 U. S., at
624, 628; see Board of Directors of Rotary Int’l v. Rotary Club of Duarte , 481 U.S.
537 , 549 (1987). Moreover, a law that prohibits only such acts
by businesses open to the public is narrowly tailored to achieve
that compelling interest. The law “responds precisely to the
substantive problem which legitimately concerns the State”: the
harm from status-based discrimination in the public marketplace. Roberts , 468 U. S., at 629 (internal quotation marks
omitted).

															This last aspect of a public accommodations law
deserves special emphasis: The law regulates only businesses that
choose to sell goods or services “to the general public,” e.g. , Va. Code Ann. §2.2–3904, or “to the public,” e.g. , Mich. Comp. Laws §37.2301. Some public accommodations
laws, such as the federal Civil Rights Act, list establishments
that qualify, but these establishments are ones open to the public
generally. See, e.g. , 42 U. S. C. §2000a(b)
(hotels, restaurants, gas stations, movie theaters, concert halls,
sports arenas, stadiums). A public accommodations law does not
force anyone to start a business, or to hold out the business’s
goods or services to the public at large. The law also does not
compel any business to sell any particular good or service. But if
a business chooses to profit from the public market, which is
established and maintained by the state, the state may require the
business to abide by a legal norm of nondiscrimination. In
particular, the state may ensure that groups historically marked
for second-class status are not denied goods or services on equal
terms.

															The concept of a public accommodation thus
embodies a simple, but powerful, social contract: A business that
chooses to sell to the public assumes a duty to serve the public
without unjust discrimination. J. Singer, No Right To Exclude:
Public Accommodations and Private Property, 90 Nw. U. L. Rev.
1283, 1298 (1996) (Singer).

															B

															The legal duty of a business open to the
public to serve the public without unjust discrimination is deeply
rooted in our history. The true power of this principle, however,
lies in its capacity to evolve, as society comes to understand more
forms of unjust discrimination and, hence, to include more persons
as full and equal members of “the public.”

															1

															“At common law, innkeepers, smiths, and others
who ‘made profession of a public employment,’ were prohibited from
refusing, without good reason, to serve a customer.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston,
Inc. , 515 U.S.
557 , 571 (1995) (quoting Lane v. Cotton , 12 Mod.
472, 485, 88 Eng. Rep. 1458, 1465 (K. B. 1701) (Holt,
C. J.)). “Public employment” meant a business “in which the
owner has held himself out as ready to serve the public by
exercising his trade.” Singer 1307; see, e.g. , Gisbourn v. Hurst , 1 Salk. 249, 91 Eng. Rep. 220
(K. B. 1710). Take, for example, Lane v. Cotton ,
“[t]he leading English case” on the subject “cited over and over
again in the nineteenth century in the United States.” Singer 1304.
There, Lord Chief Justice Holt explained:

															“[W]here-ever any subject takes upon
himself a public trust for the benefit of the rest of his
fellow-subjects, he is eo ipso bound to serve the subject in
all the things that are within the reach and comprehension of such
an office, under pain of an action against him. . . . If
on the road a shoe fall off my horse, and I come to a smith to have
one put on, and the smith refuse to do it, an action will lie
against him, because he has made profession of a trade which is for
the public good, and has thereby exposed and vested an interest of
himself in all the King’s subjects that will employ him in the way
of his trade.” Lane v. Cotton , 12 Mod., at 484, 88
Eng. Rep., at 1464.

															That is to say, a business’s duty to serve all
comers derived from its choice to hold itself out as ready to serve
the public. This holding-out rationale became firmly established in
early American law. See 2 J. Kent, Commentaries on American Law
464–465 (1827); J. Story, Commentaries on the Law of Bailments
§§495, 591 (1832); see also, e.g. , Markham v. Brown , 8 N. H. 523, 528 (1837); Jencks v. Coleman , 13 F. Cas. 442, 443 (No. 7,258) (CC RI 1835)
(Story, J.); Dwight v. Brewster , 18 Mass. 50, 53
(1822).

															The majority is therefore mistaken to suggest
that public accommodations or common carriers historically assumed
duties to serve all comers because they enjoyed monopolies or
otherwise had market power. Ante , at 13. Tellingly, the
majority cites no common-law case espousing the monopoly
rationale.[ 5 ] That is because
nowhere in the relevant case law “is monopoly suggested as the
distinguishing characteristic.” E. Adler, Business Jurisprudence,
28 Harv. L. Rev. 135, 156 (1914) (“A distinction based on
monopoly would require proof that the common carrier had some kind
of a monopoly which the private carrier did not have, or that
‘common’ was synonymous with ‘monopoly.’ The plain meaning of the
cases is [instead that] the common was the public, the
professional, the business carrier or other trader”).[ 6 ]

															2

															After the Civil War, some States codified the
common-law duty of public accommodations to serve all comers. See
M. Konvitz & T. Leskes, A Century of Civil Rights 155–157
(1961). Early state public accommodations statutes prohibited
discrimination based on race or color. Yet the principle was at
times stated more broadly: to provide “a remedy against any unjust
discrimination to the citizen in all public places.” Ferguson v. Gies , 82 Mich. 358, 365, 46 N.W. 718, 720
(1890). In 1885, Colorado adopted “ ‘An Act to Protect All
Citizens in Their Civil Rights,’ which guaranteed ‘full and equal
enjoyment’ of certain public facilities to ‘all citizens,’
‘regardless of race, color or previous condition of
servitude.’ ” Masterpiece Cakeshop , 584 U. S., at
___–___ (slip op., at 4–5) (quoting 1885 Colo. Sess. Laws p. 132).
“A decade later, the [State] expanded the requirement to apply to
‘all other places of public accommodation.’ ” 584 U. S.,
at ___ (slip op., at 5) (quoting 1895 Colo. Sess. Laws ch. 61, p.
139). Congress, too, passed the Civil Rights Act of 1875, which
established “[t]hat all persons within the jurisdiction of the
United States shall be entitled to the full and equal enjoyment of
the accommodations, advantages, facilities, and privileges of inns,
public conveyances on land or water, theaters, and other places of
public amusement . . . applicable alike to citizens of
every race and color, regardless of any previous condition of
servitude.” Act of Mar. 1, 1875, §1, 18Stat. 336.

															This Court, however, struck down the federal
Civil Rights Act of 1875 as unconstitutional. Civil Rights
Cases , 109 U.S.
3 , 25 (1883). Southern States repealed public accommodations
statutes and replaced them with Jim Crow laws. And state courts
construed any remaining right of access in ways that furthered de jure and de facto racial
segregation.[ 7 ] Full and equal
enjoyment came to mean “separate but equal” enjoyment. The result
of this backsliding was “the replacement of a general right of
access with a general right to exclude . . . in order to
promote a racial caste system.” Singer 1295.

															In time, the civil rights movement of the
mid-20th century again demanded racial equality in public places.
In 1963, two decades after then–Howard University law student Pauli
Murray organized sit-ins at cafeterias in Washington, D. C., a
diverse group of students and faculty from Tougaloo College sat at
Woolworth’s lunch counter in Jackson, Mississippi. For doing so,
they were violently attacked by a white mob. See A. Moody, Coming
of Age in Mississippi 235–240 (1992). Around the country, similar
acts of protest against racial injustice, some big and some small,
sought “to create such a crisis and foster such a tension” that the
country would be “forced to confront the issue.” M. King, Letter
from a Birmingham Jail, Apr. 16, 1963. That year, Congress once
more set out to eradicate “discrimination . . . in places
of accommodation and public facilities,” Heart of Atlanta
Motel , 379 U. S., at 246, notwithstanding this Court’s
previous declaration of a federal public accommodations law to be
unconstitutional.

															Congress believed, rightly, that discrimination
in places of public accommodation—“the injustice of being
arbitrarily denied equal access to those facilities and
accommodations which are otherwise open to the general public”—had
“no place” in this country, the country “of the melting pot, of
equal rights, of one nation and one people.” S. Rep. No. 872,
at 8–9 (quoting President Kennedy, June 19, 1963). It therefore
passed Title II of the Civil Rights Act of 1964, which declares:
“All persons shall be entitled to the full and equal enjoyment of
the goods, services, facilities, privileges, advantages, and
accommodations of any place of public accommodation . . .
without discrimination . . . on the ground of race,
color, religion, or national origin.” 42 U. S. C. §2000a.
In enacting this landmark civil rights statute, Congress invoked
the holding-out rationale from antebellum common law: “one who
employed his private property for purposes of commercial gain by
offering goods or services to the public must stick to his
bargain.” S. Rep. No. 872, at 22; see also id. , at 9–10
(endorsing Lord Holt’s view in Lane v. Cotton ).

															This bargain, America would soon realize, had
long excluded half of society. Women, though having won the right
to vote half a century earlier, were not equal in public. Instead,
a “separate-spheres ideology” had “assigned women to the home and
men to the market.” E. Sepper & D. Dinner, Sex in Public, 129
Yale L. J. 78, 83, 88–90 (2019) (Sepper & Dinner). Women
were excluded from restaurants, bars, civic and professional
organizations, financial institutions, and sports. “Just as it did
for the civil rights struggle, public accommodations served as
kindling for feminist mobilization.” Id. , at 83, 97–104; cf.
S. Mayeri, Reasoning From Race: Feminism, Law, and the Civil Rights
Revolution 9–40 (2011). In response to a movement for women’s
liberation, numerous States banned discrimination in public
accommodations on the basis of “sex.” See Sepper & Dinner 104,
nn. 145–147 (collecting statutes). Colorado was the first State to
do so. See 1969 Colo. Sess. Laws ch. 74, p. 200.

															In the decades that followed, the Nation opened
its eyes to another injustice. People with disabilities, though
inherently full and equal members of the public, had been excluded
from many areas of public life. This exclusion worked harms not
only to disabled people’s standards of living, but to their dignity
too. So Congress, responding once again to a social movement, this
time against the subordination of people with disabilities, banned
discrimination on that basis and secured by law disabled people’s
equal access to public spaces. See S. Bagenstos, Law and the
Contradictions of the Disability Rights Movement 13–20 (2009); R.
Colker, The Disability Pendulum 22–68 (2005). The centerpiece of
this political and social action was the Americans with
Disabilities Act of 1990 (ADA). Title III of the ADA provides that
“[n]o individual shall be discriminated against on the basis of
disability in the full and equal enjoyment of the goods, services,
facilities, privileges, advantages, or accommodations of any place
of public accommodation.” 42 U. S. C. §12182(a).

															Not only have public accommodations laws
expanded to recognize more forms of unjust discrimination, such as
discrimination based on race, sex, and disability, such laws have
also expanded to include more goods and services as “public
accommodations.” What began with common inns, carriers, and smiths
has grown to include restaurants, bars, movie theaters, sports
arenas, retail stores, salons, gyms, hospitals, funeral homes, and
transportation networks. See nn. 1–2, supra ; L. Lerman &
A. Sanderson, Discrimination in Access to Public Places: A Survey
of State and Federal Public Accommodations Laws, 7
N. Y. U. Rev. L. & Soc. Change 215, 217 (1978)
(“ ‘Public accommodations’ is a term of art which was
developed by the drafters of discrimination laws to refer to
[public] places other than schools, work places, and homes”).
Today, laws like Colorado’s cover “any place of business engaged in
any sales to the public and any place offering services
. . . to the public.” Colo. Rev. Stat. §24–34–601(1); see
also, e.g. , Ohio Rev. Code Ann. §4112.01(9). Numerous other
States extend such protections to businesses offering goods or
services to “the general public.” Ariz. Rev. Stat. Ann.
§41–1441(2); see also, e.g. , Mass. Gen. Laws, ch. 272,
§92A.

															This broader scope, though more inclusive than
earlier state public accommodations laws, is in keeping with the
fundamental principle—rooted in the common law, but alive and
blossoming in statutory law—that the duty to serve without unjust
discrimination is owed to everyone, and it extends to any business
that holds itself out as ready to serve the public. If you have
ever taken advantage of a public business without being denied
service because of who you are, then you have come to enjoy the
dignity and freedom that this principle protects.

															3

															Lesbian, gay, bisexual, and transgender (LGBT)
people, no less than anyone else, deserve that dignity and freedom.
The movement for LGBT rights, and the resulting expansion of state
and local laws to secure gender and sexual minorities’ full and
equal enjoyment of publicly available goods and services, is the
latest chapter of this great American story.

															LGBT people have existed for all of human
history. And as sure as they have existed, others have sought to
deny their existence, and to exclude them from public life. Those
who would subordinate LGBT people have often done so with the
backing of law. For most of American history, there were laws
criminalizing same-sex intimacy. Obergefell v. Hodges , 576 U.S. 644, 660–661 (2015). “Gays and lesbians
were [also] prohibited from most government employment, barred from
military service, excluded under immigration laws, targeted by
police, and burdened in their rights to associate.” Id. , at
661. “These policies worked to create and reinforce the belief that
gay men and lesbians” constituted “an inferior class.” Brief for
Organization of American Historians as Amicus Curiae in Obergefell v. Hodges , O. T. 2014, No. 14–556,
p. 3.

															State-sponsored discrimination was compounded by
discrimination in public accommodations, though the two often went
hand in hand. The police raided bars looking for gays and lesbians
so often that some bars put up signs saying, “ ‘We Do Not
Serve Homosexuals.’ ” Id. , at 13 (quoting G. Chauncey,
Why Marriage 8 (2004)). LGBT discrimination in public
accommodations has continued well into the 21st century. See UCLA
School of Law Williams Institute, C. Mallory & B. Sears,
Evidence of Discrimination in Public Accommodations Based on Sexual
Orientation and Gender Identity (2016).

															A social system of discrimination created an
environment in which LGBT people were unsafe. Who could forget the
brutal murder of Matthew Shepard? Matthew was targeted by two men,
tortured, tied to a buck fence, and left to die for who he was. See
K. Drake, Gay Man Beaten, Burned and Left Tied to Fence, Casper
Star-Tribune, Oct. 10, 1998, p. A1. Or the Pulse nightclub
massacre, the second-deadliest mass shooting in U. S. history?
See S. Stolberg, For Gays Across America, a Massacre Punctuates
Fitful Gains, N. Y. Times, June 13, 2016, p. A1. Rates of
violent victimization are still significantly higher for LGBT
people, with transgender persons particularly vulnerable to attack.
See Dept. of Justice, J. Truman & R. Morgan, Violent
Victimization by Sexual Orientation and Gender Identity, 2017–2020
(2022).

															Determined not to live as “social outcasts,” Masterpiece Cakeshop , 584 U. S., at ___ (slip op., at
9), LGBT people have risen up. The social movement for LGBT rights
has been long and complex. See L. Faderman, The Gay Revolution
(2015) (Faderman). But if there ever was an “earthquake,” it
occurred in the final days of June in 1969 at the Stonewall Inn in
Greenwich Village. Id. , at 169. The Stonewall Inn was a gay
bar with a “varied and lively clientele.” Id. , at 171. Its
“ ‘unruly’ element” made it “an especially inviting target”
for police raids. J. D’Emilio, Sexual Politics, Sexual Communities
231 (1983) (D’Emilio). “Patrons of the Stonewall tended to be young
and nonwhite. Many were drag queens. . . . ” Ibid. Just before midnight on June 27, the New York police’s
Public Morals Squad showed up to the bar and started making
arrests. Drag queens, for example, were arrested for offenses like
being “disguised” in “unnatural attire.” N. Y. Penal Law Ann.
§240.35(4) (West 1967).

															What started out as a fairly routine police
raid, however, became anything but. Outside the Stonewall Inn,
patrons who had been thrown out started to form a crowd. “Jeers and
catcalls arose from the onlookers when a paddy wagon departed with
the bartender, the Stonewall’s bouncer, and three drag queens.”
D’Emilio 231. “A few minutes later, an officer attempted to steer
the last of the patrons, a lesbian, through the bystanders to a
nearby patrol car.” Id. , at 231–232. When she started to
struggle, protests erupted. They lasted into the night and
continued into the next. News of the Stonewall protests “spread
rapidly,” and “within a year gay liberation groups had sprung into
existence on college campuses and in cities around the nation.” Id. , at 233. From there, the path to LGBT rights has not
been quick or easy. Nor is it over. Still, change has come: change
in social attitudes, in representation, and in legal institutions.
Faderman 535–629.

															One significant change has been the addition of
sexual orientation and gender identity to public accommodations
laws. State and local legislatures took note of the failure of such
laws to protect LGBT people and, in response, acted to guarantee
them “all the privileges . . . of any other member of
society.” Hearings on S. B. 200 before the House Judiciary
Committee, 66th Gen. Assem., 2d Reg. Sess., 4, 11–12 (Colo. 2008)
(remarks of Sen. Judd). Colorado thus amended its
antidiscrimination law in 2008 to prohibit the denial of publicly
available goods or services on the basis of “sexual orientation.”
2008 Colo. Sess. Laws. ch. 341, pp. 1596–1597. About half of the
States now provide such protections.[ 8 ] It is “ ‘unexceptional’ ” that they may do
so. Ante , at 13 (quoting Masterpiece Cakeshop , 584
U. S., at ___ (slip op., at 10)). “These are protections taken
for granted by most people either because they already have them or
do not need them; these are protections against exclusion from an
almost limitless number of transactions and endeavors that
constitute ordinary civic life in a free society.” Romer v. Evans , 517 U.S.
620 , 631 (1996). LGBT people do not seek any special treatment.
All they seek is to exist in public. To inhabit public spaces on
the same terms and conditions as everyone else.

															C

															Yet for as long as public accommodations laws
have been around, businesses have sought exemptions from them. The
civil rights and women’s liberation eras are prominent examples of
this. Backlashes to race and sex equality gave rise to legal claims
of rights to discriminate, including claims based on First
Amendment freedoms of expression and association. This Court was
unwavering in its rejection of those claims, as invidious
discrimination “has never been accorded affirmative constitutional
protections.” Norwood v. Harrison , 413 U.S.
455 , 470 (1973). In particular, the refusal to deal with or to
serve a class of people is not an expressive interest protected by
the First Amendment.

															1

															Opponents of the Civil Rights Act of 1964
objected that the law would force business owners to defy their
beliefs. Cf. ante , at 3. They argued that the Act would deny
them “any freedom to speak or to act on the basis of their
religious convictions or their deep-rooted preferences for
associating or not associating with certain classifications of
people.” 110 Cong. Rec. 7778 (1964) (remarks of Sen. Tower).
Congress rejected those arguments. Title II of the Act, in
particular, did not invade “rights of privacy [or] of free
association,” Congress concluded, because the establishments
covered by the law were “those regularly held open to the public in
general.” H. R. Rep. No. 914, 88th Cong., 1st Sess., pt. 2, p.
9 (1963); see also S. Rep. No. 872, at 92.

															Having failed to persuade Congress, opponents of
Title II turned to the federal courts. In Heart of Atlanta
Motel , one of several arguments made by the plaintiff motel
owner was that Title II violated his Fifth Amendment due process
rights by “tak[ing] away the personal liberty of an individual to
run his business as he sees fit with respect to the selection and
service of his customers.” Brief for Appellant, O. T. 1964,
No. 515, p. 32. This Court disagreed, based on “a long line of
cases” holding that “prohibition of racial discrimination in public
accommodations” did not “interfer[e] with personal liberty.” 379
U. S., at 260.

															In Katzenbach v. McClung , 379 U.S.
294 (1964), the owner of Ollie’s Barbecue (Ollie McClung)
likewise argued that Title II’s application to his business
violated the “personal rights of persons in their personal
convictions” to deny services to Black people. Brief for Appellees,
O. T. 1964, No. 543, p. 33 (citing, inter alia , West Virginia Bd. of Ed. v. Barnette , 319 U.S.
624 (1943)). Note that McClung did not refuse to transact with Black people. Oh, no. He was willing to offer
them take-out service at a separate counter. See Brief for NAACP
Legal Defense and Educational Fund, Inc., as Amicus Curiae in Katzenbach v. McClung , p. 4, n. 5. Only
integrated table service, you see, violated McClung’s core beliefs.
So he claimed a constitutional right to offer Black people a
limited menu of his services. This Court rejected that claim,
citing its decision in Heart of Atlanta Motel . See 379
U. S., at 298, n. 1.

															Next is Newman v. Piggie Park
Enterprises, Inc. , 390 U.S.
400 (1968) ( per curiam ), in which the owner of a
chain of drive-in establishments asserted that requiring him to
“contribut[e]” to racial integration in any way violated the First
Amendment by interfering with his religious liberty. App. to Pet.
for Cert., O. T. 1967, No. 339, p. 21a. Title II could
not be applied to his business, he argued, because that would
“ ‘controven[e] the will of God.’ ” 390 U. S., at
402–403, n. 5. The Court found this argument “patently
frivolous.” Ibid. Last but not least is Runyon v. McCrary , 427 U.S.
160 (1976), a case the majority studiously avoids. In Runyon , the Court confronted the question whether
“commercially operated” schools had a First Amendment right to
exclude Black children, notwithstanding a federal law against
racial discrimination in contracting. Id. , at 168; see 42
U. S. C. §1981. The schools in question offered
“educational services” for sale to “the general public.” 427
U. S., at 172. They argued that the law, as applied to them,
violated their First Amendment rights of “freedom of speech, and
association.” Pet. for Cert., O. T. 1976, No. 75–62,
p. 6; see also Brief for Petitioners, O. T. 1976, No.
75–62, p. 12 (“Freedom to teach, to express ideas”). The
Court, however, reasoned that the schools’ “ practice ” of
denying educational services to racial minorities was not shielded
by the First Amendment, for two reasons: First, “the Constitution
places no value on discrimination.” 427 U. S., at 176
(alterations and internal quotations marks omitted). Second, the
government’s regulation of conduct did not “inhibit” the schools’
ability to teach its preferred “ideas or dogma.” Ibid. (internal quotation marks omitted). Requiring the schools to abide
by an antidiscrimination law was not the same thing as compelling
the schools to express teachings contrary to their sincerely held
“belief that racial segregation is desirable.” Ibid .

															2

															First Amendment rights of expression and
association were also raised to challenge laws against sex
discrimination. In Roberts v. United States Jaycees ,
the United States Jaycees sought an exemption from a Minnesota
law that forbids discrimination on the basis of sex in public
accommodations. The U. S. Jaycees was a civic organization,
which until then had denied admission to women. The organization
alleged that applying the law to require it to include women would
violate its “members’ constitutional rights of free speech and
association.” 468 U. S., at 615. “The power of the state to
change the membership of an organization is inevitably the power to change the way in which it speaks ,” the Jaycees argued.
Brief for Appellee, O. T. 1983, No. 83–724, p. 19
(emphasis added). Thus, “the right of the Jaycees to decide its own
membership” was “inseparable,” in its view, “from its ability to
freely express itself.” Ibid. This Court took a different view. The Court held
that the “application of the Minnesota statute to compel the
Jaycees to accept women” did not infringe the organization’s First
Amendment “freedom of expressive association.” Roberts , 468
U. S., at 622. That was so because the State’s public
accommodations law did “not aim at the suppression of speech” and
did “not distinguish between prohibited and permitted activity on
the basis of viewpoint.” Id. , at 623–624. If the State had
applied the law “for the purpose of hampering the
organization’s ability to express its views,” that would be a
different matter. Id. , at 624 (emphasis added). “Instead,”
the law’s purpose was “eliminating discrimination and assuring [the
State’s] citizens equal access to publicly available goods and
services.” Ibid. “That goal,” the Court reasoned, “was
unrelated to the suppression of expression” and “plainly serves
compelling state interests of the highest order.” Ibid. Justice O’Connor concurred in part and concurred
in the judgment. See id. , at 631. She stressed that the
U. S. Jaycees was a predominantly commercial entity open to
the public. And she took the view that there was a First Amendment
“dichotomy” between rights of commercial and expressive
association. Id. , at 634. The State, for example, was “free
to impose any rational regulation” on commercial transactions
themselves. “A shopkeeper,” Justice O’Connor explained, “has no
constitutional right to deal only with persons of one sex.” Ibid. To wit, the Court had just decided in Hishon v. King & Spalding , 467 U.S.
69 , 78 (1984), that a law partnership had no constitutional
right to discriminate on the basis of sex in violation of Title
VII. The law partnership was an act of association. Its services
(legal advocacy) were expressive; indeed, they consisted of speech.
So the law firm argued that requiring it to consider a woman for
the partnership violated its First Amendment rights “of free
expression” and “of commercial association.” Brief for Respondent,
O. T. 1983, No. 82–940, pp. 14–18. This Court rejected that
argument. The application of Title VII did not “infringe
constitutional rights of expression or association,” the Court
held, because compliance with Title VII did not “inhibi[t]” the
partnership’s ability to advocate for certain “ideas and beliefs.”
467 U. S., at 78 (internal quotation marks omitted); see also supra , at 19 (discussing Runyon , 427 U. S., at
176). The Court reiterated: “ ‘[I]nvidious private
discrimination . . . has never been accorded affirmative
constitutional protections.’ ” 467 U. S., at 78 (quoting Norwood , 413 U. S., at 470).

															II

															Battling discrimination is like “battling the
Hydra.” Shelby County v. Holder , 570 U.S.
529 , 560 (2013) (Ginsburg, J., dissenting). Whenever you defeat
“one form of . . . discrimination,” another “spr[ings] up
in its place.” Ibid. Time and again, businesses and other
commercial entities have claimed constitutional rights to
discriminate. And time and again, this Court has courageously stood
up to those claims—until today. Today, the Court shrinks. A
business claims that it would like to sell wedding websites to the
general public, yet deny those same websites to gay and lesbian
couples. Under state law, the business is free to include, or not
to include, any lawful message it wants in its wedding websites.
The only thing the business may not do is deny whatever websites it
offers on the basis of sexual orientation. This Court, however,
grants the business a broad exemption from state law and allows the
business to post a notice that says: Wedding websites will be
refused to gays and lesbians. The Court’s decision, which conflates
denial of service and protected expression, is a grave error.

															A

															303 Creative LLC is a limited liability
company that sells graphic and website designs for profit. Lorie
Smith is the company’s founder and sole member-owner. Smith
believes same-sex marriages are “false,” because “ ‘God’s true
story of marriage’ ” is a story of a “ ‘union between one
man and one woman.’ ” Brief for Petitioners 4, 6–7 (quoting
App. to Pet. for Cert. 188a, 189a); Tr. of Oral Arg. 36, 40–41.
Same-sex marriage, according to her, “violates God’s will” and
“harms society and children.” App. to Pet. for Cert. 186a.

															303 Creative has never sold wedding websites.
Smith now believes, however, that “God is calling her ‘to explain
His true story about marriage.’ ” Brief for Petitioners 7
(quoting App. to Pet. for Cert. 188a). For that reason, she says,
she wants her for-profit company to enter the wedding website
business. There is only one thing: Smith would like her company to
sell wedding websites “to the public,” App. to Pet. for Cert. 189a;
Colo. Rev. Stat. §24–34–601(1), but not to same-sex couples. She
also wants to post a notice on the company’s website announcing
this intent to discriminate. App. to Pet. for Cert. 188a–189a. In
Smith’s view, “it would violate [her] sincerely held religious
beliefs to create a wedding website for a same-sex wedding because,
by doing so, [she] would be expressing a message celebrating and
promoting a conception of marriage that [she] believe[s] is
contrary to God’s design.” Id. , at 189a.

															Again, Smith’s company has never sold a wedding
website to any customer. Colorado, therefore, has never had to
enforce its antidiscrimination laws against the company. As the
majority puts it, however, Smith “worries that, if she enters the
wedding website business, the State will force her to convey
messages inconsistent with her belief that marriage should be
reserved to unions between one man and one woman.” Ante , at
2. So Smith and her company, the petitioners here, sued the State
in federal court. They sought a court decree giving them a special
exemption from CADA’s Accommodation Clause (which, remember, makes
it unlawful for a business to hold itself out to the public yet
deny to any individual, because of sexual orientation, the full and
equal enjoyment of the business’s goods or services, see supra , at 3–4) and CADA’s Communication Clause (which makes
it unlawful to advertise that goods or services will be denied
because of sexual orientation, see supra , at 4). App.
303–304.

															The breadth of petitioners’ pre-enforcement
challenge is astounding. According to Smith, the Free Speech Clause
of the First Amendment entitles her company to refuse to sell any “websites for same-sex weddings,” even though the
company plans to offer wedding websites to the general public. Ibid. ; see also Brief for Petitioners 22–23, and n. 2;
Tr. of Oral Arg. 37–38. In other words, the company claims a
categorical exemption from a public accommodations law simply
because the company sells expressive services. The sweeping nature
of this claim should have led this Court to reject it.

															B

															The First Amendment does not entitle
petitioners to a special exemption from a state law that simply
requires them to serve all members of the public on equal terms.
Such a law does not directly regulate petitioners’ speech at all,
and petitioners may not escape the law by claiming an expressive
interest in discrimination. The First Amendment likewise does not
exempt petitioners from the law’s prohibition on posting a notice
that they will deny goods or services based on sexual
orientation.

															1

															This Court has long held that “the First
Amendment does not prevent restrictions directed at commerce or
conduct from imposing incidental burdens on speech.” Sorrell v. IMS Health Inc. , 564 U.S.
552 , 567 (2011). “Congress, for example, can prohibit employers
from discriminating in hiring on the basis of race. The fact that
this will require an employer to take down a sign reading ‘White
Applicants Only’ hardly means that the law should be analyzed as
one regulating the employer’s speech rather than conduct.” Rumsfeld v. Forum for Academic and Institutional Rights,
Inc. , 547 U.S.
47 , 62 (2006) ( FAIR ). This principle explains “why an
ordinance against outdoor fires might forbid burning a flag and why
antitrust laws can prohibit agreements in restraint of trade.” Sorrell , 564 U. S., at 567 (citation and internal
quotation marks omitted).

															Consider United States v. O’Brien , 391 U.S.
367 (1968). In that case, the Court upheld the application of a
law against the destruction of draft cards to a defendant who had
burned his draft card to protest the Vietnam War. The protester’s
conduct was indisputably expressive. Indeed, it was political
expression, which lies at the heart of the First Amendment. Whitney v. California , 274 U.S.
357 , 375 (1927) (Brandeis, J., concurring). Yet the O’Brien Court focused on whether the Government’s interest
in regulating the conduct was to burden expression. Because it was
not, the regulation was subject to lesser constitutional scrutiny.
391 U. S., at 376–377, 381–382; Clark v. Community
for Creative Non-Violence , 468 U.S.
288 , 294, 299 (1984). The O’Brien standard is satisfied
if a regulation is unrelated to the suppression of expression and
“ ‘promotes a substantial government interest that would be
achieved less effectively absent the regulation.’ ” FAIR , 547 U. S., at 67 (quoting United States v. Albertini , 472 U.S.
675 , 689 (1985)).[ 9 ] FAIR confronted the interaction between
this principle and an equal-access law. The law at issue was the
Solomon Amendment, which prohibits an institution of higher
education in receipt of federal funding from denying a military
recruiter “the same access to its campus and students that it
provides to the nonmilitary recruiter receiving the most favorable
access.” 547 U. S., at 55; see 10 U. S. C. §983(b). A
group of law schools challenged the Solomon Amendment based on
their sincere objection to the military’s “Don’t Ask, Don’t Tell”
policy. For those who are too young to know, “Don’t Ask, Don’t
Tell” was a homophobic policy that barred openly LGBT people from
serving in the military. LGBT people could serve only if they kept
their identities secret. The idea was that their open existence was
a threat to the military.

															The law schools in FAIR claimed that the
Solomon Amendment infringed the schools’ First Amendment freedom of
speech. The schools provided recruiting assistance in the form of
emails, notices on bulletin boards, and flyers. 547 U. S., at
60–61. As the Court acknowledged, those services “clearly involve
speech.” Id. , at 60. And the Solomon Amendment required
“schools offering such services to other recruiters” to provide
them equally “on behalf of the military,” even if the school deeply
objected to creating such speech. Id. , at 61. But that did
not transform the equal provision of services into “compelled
speech” of the kind barred by the First Amendment, because the
school’s speech was “only ‘compelled’ if, and to the extent, the
school provides such speech for other recruiters.” Id. , at
62. Thus, any speech compulsion was “plainly incidental to the
Solomon Amendment’s regulation of conduct.” Ibid. 2

															The same principle resolves this case. The
majority tries to sweep under the rug petitioners’ challenge to
CADA’s Communication Clause, so I will start with it. Recall that
Smith wants to post a notice on her company’s homepage that the
company will refuse to sell any website for a same-sex couple’s
wedding. This Court, however, has already said that “a ban on
race-based hiring may require employers to remove ‘White Applicants
Only’ signs.” Sorrell , 564 U. S., at 567 (quoting FAIR , 547 U. S., at 62; some internal quotation marks
omitted); see Pittsburgh Press Co. v. Pittsburgh Comm’n
on Human Relations , 413 U.S.
376 , 389 (1973). So petitioners concede that they are not
entitled to an exemption from the Communication Clause unless they
are also entitled to an exemption from the Accommodation Clause.
Brief for Petitioners 34–35. That concession is all but fatal to
their argument, because it shows that even “pure speech” may be
burdened incident to a valid regulation of conduct.[ 10 ]

															CADA’s Accommodation Clause and its application
here are valid regulations of conduct. It is well settled that a
public accommodations law like the Accommodation Clause does not
“target speech or discriminate on the basis of its content.” Hurley , 515 U. S., at 572. Rather, “the focal point of
its prohibition” is “on the act of discriminating against
individuals in the provision of publicly available goods,
privileges, and services.” Ibid. (emphasis added). The State
confirms this reading of CADA. The law applies only to status-based
refusals to provide the full and equal enjoyment of whatever
services petitioners choose to sell to the public. See Brief for
Respondents 15–18.

															Crucially, the law “does not dictate the content
of speech at all, which is only ‘compelled’ if, and to the extent,”
the company offers “such speech” to other customers. FAIR ,
547 U. S., at 62. Colorado does not require the company to
“speak [the State’s] preferred message.” Ante , at 19. Nor
does it prohibit the company from speaking the company’s preferred
message. The company could, for example, offer only wedding
websites with biblical quotations describing marriage as between
one man and one woman. Brief for Respondents 15. (Just as it could
offer only t-shirts with such quotations.) The company could also
refuse to include the words “Love is Love” if it would not provide
those words to any customer. All the company has to do is offer its
services without regard to customers’ protected characteristics. Id. , at 15–16. Any effect on the company’s speech is
therefore “incidental” to the State’s content-neutral regulation of
conduct. FAIR , 547 U. S., at 62; see Hurley , 515
U. S., at 572–573.

															Once these features of the law are understood,
it becomes clear that petitioners’ freedom of speech is not
abridged in any meaningful sense, factual or legal. Petitioners
remain free to advocate the idea that same-sex marriage betrays
God’s laws. FAIR , 547 U. S., at 60; Hishon , 467
U. S., at 78; Runyon , 427 U. S., at 176. Even if
Smith believes God is calling her to do so through her for-profit
company, the company need not hold out its goods or services to the
public at large. Many filmmakers, visual artists, and writers never
do. (That is why the law does not require Steven Spielberg or
Banksy to make films or art for anyone who asks. But cf. ante , at 12, 23–24.) Finally, and most importantly, even if
the company offers its goods or services to the public, it remains
free under state law to decide what messages to include or not to
include. To repeat (because it escapes the majority): The company
can put whatever “harmful” or “low-value” speech it wants on its
websites. It can “tell people what they do not want to hear.” Ante , at 25 (internal quotation marks and brackets omitted).
All the company may not do is offer wedding websites to the public
yet refuse those same websites to gay and lesbian couples. See Runyon , 427 U. S., at 176 (distinguishing between
schools’ ability to express their bigoted view “that racial
segregation is desirable” and the schools’ proscribable
“ practice of excluding racial minorities”).

															Another example might help to illustrate the
point. A professional photographer is generally free to choose her
subjects. She can make a living taking photos of flowers or
celebrities. The State does not regulate that choice. If the
photographer opens a portrait photography business to the public,
however, the business may not deny to any person, because of race,
sex, national origin, or other protected characteristic, the full
and equal enjoyment of whatever services the business chooses to
offer. That is so even though portrait photography services are
customized and expressive. If the business offers school photos, it
may not deny those services to multiracial children because the
owner does not want to create any speech indicating that
interracial couples are acceptable. If the business offers
corporate headshots, it may not deny those services to women
because the owner believes a woman’s place is in the home. And if
the business offers passport photos, it may not deny those services
to Mexican Americans because the owner opposes immigration from
Mexico.

															The same is true for sexual-orientation
discrimination. If a photographer opens a photo booth outside of
city hall and offers to sell newlywed photos captioned with the
words “Just Married,” she may not refuse to sell that service to a
newlywed gay or lesbian couple, even if she believes the couple is
not, in fact, just married because in her view their marriage is
“false.” Tr. of Oral Arg. 36, 40–41.

															3

															Because any burden on petitioners’ speech is
incidental to CADA’s neutral regulation of commercial conduct, the
regulation is subject to the standard set forth in O’Brien .
That standard is easily satisfied here because the law’s
application “promotes a substantial government interest that would
be achieved less effectively absent the regulation.” FAIR ,
547 U. S., at 67 (internal quotation marks omitted). Indeed,
this Court has already held that the State’s goal of “eliminating
discrimination and assuring its citizens equal access to publicly
available goods and services” is “unrelated to the suppression of
expression” and “plainly serves compelling state interests of the
highest order.” Roberts , 468 U. S., at 624. The Court
has also held that by prohibiting only “ acts of invidious
discrimination in the distribution of publicly available goods, services, and other advantages,” the law “responds precisely
to the substantive problem which legitimately concerns the State
and abridges no more speech . . . than is necessary to
accomplish that purpose.” Id. , at 628–629 (emphasis added;
internal quotation marks omitted); see supra , at 4–7.

															C

															The Court reaches the wrong answer in this
case because it asks the wrong questions. The question is not
whether the company’s products include “elements of speech.” FAIR , 547 U. S., at 61. (They do.) The question is not
even whether CADA would require the company to create and sell
speech, notwithstanding the owner’s sincere objection to doing so,
if the company chooses to offer “such speech” to the public. Id. , at 62. (It would.) These questions do not resolve the
First Amendment inquiry any more than they did in FAIR .
Instead, the proper focus is on the character of state action and
its relationship to expression. Because Colorado seeks to apply
CADA only to the refusal to provide same-sex couples the full and
equal enjoyment of the company’s publicly available services, so
that the company’s speech “is only ‘compelled’ if, and to the
extent,” the company chooses to offer “such speech” to the public,
any burden on speech is “plainly incidental” to a content-neutral
regulation of conduct. Ibid. The majority attempts to distinguish this clear
holding of FAIR by suggesting that the compelled speech in FAIR was “incidental” because it was “logistical”
( e.g. , “The U. S. Army recruiter will meet interested
students in Room 123 at 11 a.m.”). Ante , at 18 (internal
quotation marks omitted). This attempt fails twice over. First, the
law schools in FAIR alleged that the Solomon Amendment
required them to create and disseminate speech propagating the
military’s message, which they deeply objected to, and to include
military speakers in on- and off-campus forums (if the schools
provided equally favorable services to other recruiters). 547
U. S., at 60–61; App. 27 and Brief for Respondents 5–8 in Rumsfeld v. Forum for Academic and Institutional Rights,
Inc. , O. T. 2005, No. 04–1152. The majority simply skips
over the Court’s key reasoning for why any speech compulsion was
nevertheless “incidental” to the Amendment’s regulation of conduct:
It would occur only “if, and to the extent,” the regulated entity
provided “such speech” to others. FAIR , 547 U. S., at
62. Likewise in O’Brien , the reason the burden on O’Brien’s
expression was incidental was not because his message was factual
or uncontroversial. But cf. ante , at 19. O’Brien burned his
draft card to send a political message, and the burden on his
expression was substantial. Still, the burden was “incidental”
because it was ancillary to a regulation that did not aim at
expression. 391 U. S., at 377.

															Second, the majority completely ignores the
categorical nature of the exemption claimed by petitioners.
Petitioners maintain, as they have throughout this litigation, that
they will refuse to create any wedding website for a
same-sex couple. Even an announcement of the time and place of a
wedding (similar to the majority’s example from FAIR )
abridges petitioners’ freedom of speech, they claim, because “the
announcement of the wedding itself is a concept that [Smith]
believes to be false.” Tr. of Oral Arg. 41. Indeed, petitioners
here concede that if a same-sex couple came across an opposite-sex
wedding website created by the company and requested an identical
website, with only the names and date of the wedding changed,
petitioners would refuse. Id. , at 37–38.[ 11 ] That is status-based discrimination,
plain and simple.

															Oblivious to this fact, the majority insists
that petitioners discriminate based on message, not status. The
company, says the majority, will not sell same-sex wedding websites
to anyone. Ante , at 17. It will sell only opposite-sex
wedding websites; that is its service. Petitioners, however,
“cannot define their service as ‘opposite-sex wedding [websites]’
any more than a hotel can recast its services as ‘whites-only
lodgings.’ ” Telescope Media Group v. Lucero ,
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.[ 12 ] 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.[ 13 ] 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 that
requires the regulated party to provide speech only if, and to the
extent, it provides such speech for others. Supra , at 25–26,
29–30. Hurley and Dale , by contrast,
involved “peculiar” applications of public accommodations laws, not
to “the act of discriminating . . . in the provision of
publicly available goods” by “clearly commercial entities,” but
rather to private, nonprofit expressive associations in ways that
directly burdened speech. Hurley , 515 U. S., at 572
(private parade); Dale , 530 U. S., at 657 (Boy Scouts).
The Court in Hurley and Dale stressed that the speech
burdens in those cases were not incidental to prohibitions on
status-based discrimination because the associations did not assert
that “mere acceptance of a member from a particular group would
impair [the association’s] message.” Dale , 530 U. S.,
at 653; see also ibid. (reasoning that Dale was excluded for
being a gay rights activist, not for being gay); ibid. (explaining that in Hurley , “the parade organizers did not
wish to exclude the GLIB [Irish-American gay, lesbian, and bisexual
group] members because of their sexual orientations, but because
they wanted to march behind a GLIB banner”); Hurley , 515
U. S., at 572–573.

															Here, the opposite is true. 303 Creative LLC is
a “clearly commercial entit[y].” Dale , 530 U. S., at
657. The company comes under the regulation of CADA only if it
sells services to the public, and only if it denies the equal
enjoyment of such services because of sexual orientation. The State
confirms that the company is free to include or not to include any
message in whatever services it chooses to offer. Supra , at
26–28. And the company confirms that it plans to engage in
status-based discrimination. Supra , at 22–23, 31–32.
Therefore, any burden on the company’s expression is incidental to
the State’s content-neutral regulation of commercial conduct.

															Frustrated by this inescapable logic, the
majority dials up the rhetoric, asserting that “Colorado seeks to
compel [the company’s] speech in order to excise certain ideas or
viewpoints from the public dialogue.” The State’s “very purpose in
seeking to apply its law,” in the majority’s view, is “the coercive
elimination of dissenting ideas about marriage.” Ante , at
10–11 (internal quotation marks and brackets omitted).[ 14 ] That is an astonishing view of
the law. It is contrary to the fact that a law requiring
public-facing businesses to accept all comers “is textbook
viewpoint neutral,” Christian Legal Soc. Chapter of Univ. of
Cal., Hastings College of Law v. Martinez , 561 U.S.
661 , 695 (2010); contrary to the fact that the Accommodation
Clause and the State’s application of it here allows Smith to
include in her company’s goods and services whatever “dissenting
views about marriage” she wants; and contrary to this Court’s clear
holdings that the purpose of a public accommodations law, as
applied to the commercial act of discrimination in the sale of
publicly available goods and services, is to ensure equal access to
and equal dignity in the public marketplace, supra , at
4–6.

															So it is dispiriting to read the majority
suggest that this case resembles West Virginia Bd. of Ed. v. Barnette , 319 U.S.
624 (1943). A content-neutral equal-access policy is “a far
cry” from a mandate to “endorse” a pledge chosen by the Government. FAIR , 547 U. S., at 62. This Court has said “it
trivializes the freedom protected in Barnette ” to equate the
two. Ibid. Requiring Smith’s company to abide by a law
against invidious discrimination in commercial sales to the public
does not conscript her into espousing the government’s message. It
does not “invad[e]” her “sphere of intellect” or violate her
constitutional “right to differ.” Ante , at 2, 7 (internal
quotation marks omitted). All it does is require her to stick to
her bargain: “The owner who hangs a shingle and offers her services
to the public cannot retreat from the promise of open service; to
do so is to offer the public marked money. It is to convey the
promise of a free and open society and then take the prize away
from the despised few.” J. Singer, We Don’t Serve Your Kind Here:
Public Accommodations and the Mark of Sodom, 95 B. U.
L. Rev. 929, 949 (2015).

															III

															Today is a sad day in American constitutional
law and in the lives of LGBT people. The Supreme Court of the
United States declares that a particular kind of business, though
open to the public, has a constitutional right to refuse to serve
members of a protected class. The Court does so for the first time
in its history. By issuing this new license to discriminate in a
case brought by a company that seeks to deny same-sex couples the
full and equal enjoyment of its services, the immediate, symbolic
effect of the decision is to mark gays and lesbians for
second-class status. In this way, the decision itself inflicts a
kind of stigmatic harm, on top of any harm caused by denials of
service. The opinion of the Court is, quite literally, a notice
that reads: “Some services may be denied to same-sex couples.”

															“The truth is,” these “affronts and denials”
“are intensely human and personal.” S. Rep. No. 872,
at 15 (internal quotation marks omitted). Sometimes they may
“harm the physical body, but always they strike at the root of the
human spirit, at the very core of human dignity.” Ibid. To
see how, imagine a same-sex couple browses the public market with
their child. The market could be online or in a shopping mall. Some
stores sell products that are customized and expressive. The family
sees a notice announcing that services will be refused for same-sex
weddings. What message does that send? It sends the message that we
live in a society with social castes. It says to the child of the
same-sex couple that their parents’ relationship is not equal to
others’. And it reminds LGBT people of a painful feeling that they
know all too well: There are some public places where they can be
themselves, and some where they cannot. K. Yoshino, Covering 61–66
(2006). Ask any LGBT person, and you will learn just how often they
are forced to navigate life in this way. They must ask themselves:
If I reveal my identity to this co-worker, or to this shopkeeper,
will they treat me the same way? If I hold the hand of my partner
in this setting, will someone stare at me, harass me, or even hurt
me? It is an awful way to live. Freedom from this way of life is
the very object of a law that declares: All members of the public
are entitled to inhabit public spaces on equal terms.

															This case cannot be understood outside of the
context in which it arises. In that context, the outcome is even
more distressing. The LGBT rights movement has made historic
strides, and I am proud of the role this Court recently played in
that history. Today, however, we are taking steps backward. A slew
of anti-LGBT laws have been passed in some parts of the
country,[ 15 ] raising the
specter of a “bare . . . desire to harm a politically
unpopular group.” Romer , 517 U. S., at 634 (internal
quotation marks omitted). This is especially unnerving when “for
centuries there have been powerful voices to condemn” this small
minority. Lawrence v. Texas , 539
U.S. 558 , 571 (2003). In this pivotal moment, the Court had an
opportunity to reaffirm its commitment to equality on behalf of all
members of society, including LGBT people. It does not do so.

															Although the consequences of today’s decision
might be most pressing for the LGBT community, the decision’s logic
cannot be limited to discrimination on the basis of sexual
orientation or gender identity. The decision threatens to balkanize
the market and to allow the exclusion of other groups from many
services. A website designer could equally refuse to create a
wedding website for an interracial couple, for example. How quickly
we forget that opposition to interracial marriage was often because
“ ‘Almighty God . . . did not intend for the races
to mix.’ ” Loving v. Virginia , 388 U.S.
1 , 3 (1967). Yet the reason for discrimination need not even be
religious, as this case arises under the Free Speech Clause. A
stationer could refuse to sell a birth announcement for a disabled
couple because she opposes their having a child. A large retail
store could reserve its family portrait services for “traditional”
families. And so on.[ 16 ]

															Wedding websites, birth announcements, family
portraits, epitaphs. These are not just words and images. They are
the most profound moments in a human’s life. They are the moments
that give that life personal and cultural meaning. You already
heard the story of Bob and Jack, the elderly gay couple forced to
find a funeral home more than an hour away. Supra , at 5–6,
and n. 4. Now hear the story of Cynthia and Sherry, a lesbian
couple of 13 years until Cynthia died from cancer at age 35. When
Cynthia was diagnosed, she drew up a will, which authorized Sherry
to make burial arrangements. Cynthia had asked Sherry to include an
inscription on her headstone, listing the relationships that were
important to her, for example, “daughter, granddaughter, sister,
and aunt.” After Cynthia died, the cemetery was willing to include
those words, but not the words that described Cynthia’s
relationship to Sherry: “ ‘beloved life partner.’ ” N.
Knauer, Gay and Lesbian Elders 102 (2011). There are many such
stories, too many to tell here. And after today, too many to
come.

															I fear that the symbolic damage of the Court’s
opinion is done. But that does not mean that we are powerless in
the face of the decision. The meaning of our Constitution is found
not in any law volume, but in the spirit of the people who live
under it. Every business owner in America has a choice whether to
live out the values in the Constitution. Make no mistake: Invidious
discrimination is not one of them. “[D]iscrimination in any form
and in any degree has no justifiable part whatever in our
democratic way of life.” Korematsu v. United States , 323 U.S.
214 , 242 (1944) (Murphy, J., dissenting). “It is unattractive
in any setting but it is utterly revolting among a free people who
have embraced the principles set forth in the Constitution of the
United States.” Ibid. The unattractive lesson of the majority opinion
is this: What’s mine is mine, and what’s yours is yours. The lesson
of the history of public accommodations laws is altogether
different. It is that in a free and democratic society, there can
be no social castes. And for that to be true, it must be true in
the public market. For the “promise of freedom” is an empty one if
the Government is “powerless to assure that a dollar in the hands
of [one person] will purchase the same thing as a dollar in the
hands of a[nother].” Jones v. Alfred H. Mayer Co. , 392 U.S.
409 , 443 (1968). Because the Court today retreats from that
promise, I dissent. Notes 1 See 42 U. S. C. §2000a et seq. (Title II of Civil Rights Act of 1964); 42
U. S. C. §12181 et seq. (Title III of Americans
with Disabilities Act of 1990). 2 See Alaska Stat.
§18.80.230 (2023); Ariz. Rev. Stat. Ann. §41–1442 (2017); Ark. Code
Ann. §16–123–107 (Supp. 2021); Cal. Civ. Code Ann. §51 (West 2020);
Colo. Rev. Stat. §24–34–601 (2022); Conn. Gen. Stat. §§46a–64,
46a–81d (Cum. Supp. 2023); Del. Code Ann., Tit. 6, §4504 (Cum.
Supp. 2022); Fla. Stat. §§413.08, 760.08 (2022); Haw. Rev. Stat.
§489–3 (Cum. Supp. 2021); Idaho Code Ann. §67–5909 (2020); Ill.
Comp. Stat., ch. 775, §5/1–102 (West Supp. 2021); Ind. Code
§22–9–1–2 (2022); Iowa Code §216.7 (2023); Kan. Stat. Ann. §44–1001
(2021); Ky. Rev. Stat. Ann. §§344.120, 344.145 (West 2018); La.
Rev. Stat. Ann. §51:2247 (West Cum. Supp. 2023); Me. Rev. Stat.
Ann., Tit. 5, §4591 (Cum. Supp. 2023); Md. State Govt. Code Ann.
§20–304 (2021); Mass. Gen. Laws, ch. 272, §98 (2020); Mich. Comp.
Laws §§37.1102, 37.2302 (1981), as amended, 2023 Mich. Pub. Acts
no. 6 ( sine die ); Minn. Stat. §363 A. 11 (2022); Mo.
Rev. Stat. §213.065 (Cum. Supp. 2021); Mont. Code Ann. §49–2–304
(2021); Neb. Rev. Stat. §20–134 (2022); Nev. Rev. Stat. §651.070
(2017); N. H. Rev. Stat. Ann. §354–A:17 (2022); N. J.
Stat. Ann. §10:5–12 (West Cum. Supp. 2023); N. M. Stat. Ann.
§28–1–7 (2022); N. Y. Civ. Rights Law Ann. §40 (West 2019);
N. D. Cent. Code Ann. §14–02.4–14 (2017); Ohio Rev. Code Ann.
§4112.02 (Lexis Supp. 2023); Okla. Stat., Tit. 25, §1402 (2011);
Ore. Rev. Stat. §659 A. 403 (2021); Pa. Stat. Ann., Tit. 43, §953
(Purdon 2020); R. I. Gen. Laws §11–24–2 (2002); S. C.
Code Ann. §45–9–10 (2016); S. D. Codified Laws §20–13–23
(2016); Tenn. Code Ann. §4–21–501 (2021); Utah Code §13–7–3 (2022);
Vt. Stat. Ann., Tit. 9, §4502 (2020); Va. Code Ann. §2.2–3904
(2022); Wash. Rev. Code §49.60.215 (2022); W. Va. Code Ann.
§5–11–2 (Lexis 2022); Wis. Stat. §106.52 (2019–2020); Wyo. Stat.
Ann. §6–9–101 (2021). 3 Hearings on the
Nomination of Ruth Bader Ginsburg To Be Associate Justice of the
Supreme Court of the United States before the Senate Committee on
the Judiciary, 103d Cong., 1st Sess., 139 (1993). 4 The men in this story are
Robert “Bob” Huskey and John “Jack” Zawadski. Bob and Jack were a
loving couple of 52 years. They moved from California to Colorado
to care for Bob’s mother, then to Wisconsin to farm apples and
teach special education, and then to Mississippi to retire. Within
weeks of this Court’s decision in Obergefell v. Hodges , 576 U.S. 644 (2015), Bob and Jack got married. They
were 85 and 81 years old on their wedding day. A few months later,
Bob’s health took a turn. He died the following spring. When Bob’s
family was forced to find an alternative funeral home more than an
hour from where Bob and Jack lived, the lunch in Bob’s memory had
to be canceled. Jack died the next year. 5 For example, a case on
which the majority relies found that it could “shortly dispos[e]”
of the question whether a steamship company was a common carrier
because the company was “the owner of a general ship, carrying
goods for hire . . . and perform[ing]” that service
“regular[ly].” Liverpool & Great Western Steam Co. v. Phenix Ins. Co. , 129 U.S.
397 , 437 (1889). No showing of market power was required. Ibid. 6 Nor does “host[ing] or
transport[ing] others and their belongings,” ante , at 13,
explain the right of access. Smiths, for instance, did not always
practice their trade by holding property for others. And even when
they did, any duty of care resulting from such bailment cannot
explain the duty to serve all comers, which logically must be
assumed beforehand. See Lane v. Cotton , 12 Mod. 472,
484, 88 Eng. Rep. 1458, 1464 (K. B. 1701) (Holt, C. J.).
That duty instead came from somewhere else, and the weight of
authority indicates that it came from a business’s act of holding
itself out to the public as ready to serve anyone who would hire
it. Singer 1304–1330; 3 W. Blackstone, Commentaries on the Laws of
England 164 (1768); J. Story, Commentaries on the Law of Bailments
§§495, 591 (1837); 1 T. Parsons, Law of Contracts 639, 643, 649
(1853). 7 Compare, e.g. , Chesapeake, O. & S. R. Co. v. Wells , 85 Tenn.
613, 615, 4 S.W. 5 (1887) (rejecting Ida B. Wells’s claim that she
was denied “ ‘accommodations equal in all respects,’ ”
when she tried to enter a train car “set apart for white ladies and
their gentlemen” on account of tobacco smoke in her car, and was
forcibly removed), with Memphis & C. R. Co. v. Benson , 85 Tenn. 627, 632, 4 S.W. 5, 7 (1887) (accepting
that a white man would be permitted to ride standing in the ladies’
car on account of tobacco smoke in his car). 8 See Cal. Civ. Code Ann.
§51; Colo. Rev. Stat. §24–34–601; Conn. Gen. Stat. §46a–81d; Del.
Code Ann., Tit. 6, §4504; Haw. Rev. Stat. §489–3; Ill. Comp. Stat.,
ch. 775, §5/1–102; Iowa Code §216.7; Me. Rev. Stat. Ann., Tit. 5,
§4591; Md. State Govt. Code Ann. §20–304; Mass. Gen. Laws, ch. 272,
§98; Mich. Comp. Laws §37.2302, as amended; Minn. Stat. §363 A. 11;
Nev. Rev. Stat. §651.070; N. H. Rev. Stat. Ann. §354–A:17;
N. J. Stat. Ann. §10:5–12; N. M. Stat. Ann. §28–1–7;
N. Y. Civ. Rights Law Ann. §40; Ore. Rev. Stat. §659 A. 403;
R. I. Gen. Laws §11–24–2; Vt. Stat. Ann., Tit. 9, §4502; Va.
Code Ann. §2.2–3904; Wash. Rev. Code §49.60.215; Wis. Stat.
§106.52. 9 The majority commits a
fundamental error in suggesting that a law does not regulate
conduct if it ever applies to expressive activities. See ante , at 19, 22. This would come as a great surprise to the O’Brien Court. 10 The
majority appears to find this discussion of the Communication
Clause upsetting. See ante , at 20–21, and n. 5. It is
easy to understand why: The Court’s prior First Amendment cases
clearly explain that a ban on discrimination may require a business
to take down a sign that expresses the business owner’s intent to
discriminate. See, e.g. , FAIR , 547 U. S., at 62.
This principle is deeply inconsistent with the majority’s position.
Thus, a “straight couples only” notice, like the one the Court
today allows, see App. to Pet. for Cert. 188a–189a, is itself a
devastating indictment of the majority’s logic. 11 Because petitioners have never sold a
wedding website to anyone, the record contains only a mockup
website. The mockup confirms what you would expect: The website
provides details of the event, a form to RSVP, a gift registry,
etc. See App. 51–72. The customization of these elements pursuant
to a content-neutral regulation of conduct does not
unconstitutionally intrude upon any protected expression of the
website designer. Yet Smith claims a First Amendment right to
refuse to provide any wedding website for a same-sex couple.
Her claim therefore rests on the idea that her act of service is
itself a form of protected expression. In granting Smith’s claim,
the majority collapses the distinction between status-based and
message-based refusals of service. The history shows just how
profoundly wrong that is. See Runyon v. McCrary , 427 U.S.
160 , 176 (1976); Hishon v. King & Spalding , 467 U.S.
69 , 78 (1984); Roberts v. United States Jaycees , 468 U.S.
609 , 622–629 (1984). 12 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). 13 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. 14 The
majority’s repeated invocation of this Orwellian thought policing
is revealing of just how much it misunderstands this case. See ante , at 10–12, 19–20, 24–25 (claiming that the State seeks
to “eliminate ideas” and that it will punish Smith unless she
“conforms her views to the State’s”). 15 These
laws variously censor discussion of sexual orientation and gender
identity in schools, see, e.g. , 2023 Ky. Acts pp. 775–779,
and ban drag shows in public, see 2023 Tenn. Pub. Acts ch. 2. Yet
we are told that the real threat to free speech is that a
commercial business open to the public might have to serve all
members of the public. 16 The
potential implications of the Court’s logic are deeply troubling.
Would Runyon v. McCrary have come out differently if
the schools had argued that accepting Black children would have
required them to create original speech, like lessons, report
cards, or diplomas, that they deeply objected to? What if the law
firm in Hishon v. King & Spalding had argued that
promoting a woman to the partnership would have required it to
alter its speech, like letterhead or court filings, in ways that it
would rather not? Once you look closely, “compelled speech” (in the
majority’s facile understanding of that concept) is
everywhere.

Summary: The Supreme Court case 303 Creative LLC v. Elenis considers the conflict between Colorado's anti-discrimination law and the First Amendment right to free speech. Lorie Smith, the owner of 303 Creative LLC, offers website and graphic design services and wanted to expand into creating wedding websites for couples. She refused to serve same-sex couples, citing her religious beliefs, and challenged Colorado's anti-discrimination law on free speech grounds. The Court ruled in favor of Smith, arguing that Colorado's law compelled her to create speech that contradicted her beliefs, thus violating her right to free speech. This case sets a precedent for businesses to potentially override anti-discrimination laws by claiming that serving certain customers would require them to create speech contrary to their beliefs. Dissenting opinions highlight the potential implications for protecting minority groups from discrimination and the distinction between regulating conduct and compelling speech.