SCOTUS Rules For Free Speech, While Upholding Slavery


On June 30, the Supreme Court handed down its ruling in 303 Creative LLC v. Elenis. Lorie Smith, the court held, cannot be compelled to create web sites for same-sex weddings because that would require her to engage in speech “inconsistent with her belief that marriage should be reserved to unions between one man and one woman.”

The outcome is constitutionally correct as far as it goes. Associate justice Samuel Alito, writing for the majority, makes a strong argument for the ruling on First Amendment grounds. The state has no more authority to compel speech than it has to forbid speech.

Unfortunately, the opinion also includes a poison pill that sanctions continued violations of the Thirteenth Amendment’s prohibition on involuntary servitude, also known as slavery.

“[W]e do not question,” Alito writes, “the vital role public accommodations laws play in realizing the civil rights of all Americans.”

Public accommodations laws play no role whatsoever in realizing the rights of anyone, because no one has a right to purchase the services of someone who isn’t willing to serve.

The reasons why Person A might not want to serve Person B are irrelevant.

Such reasons could be, as in Smith’s case, about what Person B wants done. She’s willing to serve LGBTQ customers — but unwilling to engage in the particular speech of promoting their weddings.

Those reasons could also be about who Person B is. Person A might dislike Person B’s skin color, religion, sexual orientation, political affiliation, or any number of other characteristics, most of which seem silly (and possibly ugly).

But we all have the right to decide who we’ll do business with, even if our reasons are silly or ugly. Person A’s body, mind, time, and effort belong to Person A, not to Person B, until and unless Person A freely agrees to sell or rent those things to Person B.

Establishing a “protected class,” entitled to involuntary service on the part of others, makes that “protected class” a class of slave owners, and everyone else their slaves.

The court’s ruling doesn’t avoid that issue — it actively comes down on the side of Person B’s supposed “right” to enslave Person A.

Apart from the moral repugnance of that position, its negative consequences fall into a “seen versus unseen” chasm.

What we SEE in “public accommodations” laws is that a black family can rent a motel room from a racist; a same-sex couple can get a wedding web site or cake from a homophobe; a Jew can rent a venue for his son’s bar mitzvah from an anti-Semite.

What we DON’T see is that the bigotry remains, likely expressed in the form of poor service, over-billing, or any number of low-down dirty tricks to ruin the customer’s enjoyment of that service.

Slavery doesn’t really fight bigotry. It just hides bigotry.

What fights bigotry is freedom to associate or not, and the transparency that comes with letting bigots expose themselves so that they bear the financial and reputational costs of their revealed prejudices.

Thomas L. Knapp (Twitter:@thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism ( He lives and works in north central Florida.