In the face of the general disaster of the Republican majority on the Supreme Court’s ongoing power grab in the student loan case, I worry that the damage of the LGBTQ Wedding Website decision, Creative LLC v. Elenis, will get overlooked. It seems to me, based mainly on a reading of Justice Sotomayor’s dissent, that the real forerunner of Creative LLC is a case mentioned nowhere in the decision or dissent: Burwell v. Hobby Lobby (2014). Recall that in Burwell, the Court ruled that the Hobby Lobby Corporation could not be compelled by the Affordable Care Act to provide contraceptive coverage as part of its employees’ healthcare coverage, on account of the corporation’s religious beliefs. At the time, I noted that Hobby Lobby seemed very happy to avail itself of things like police and fire protection. I don’t usually quote myself in blog posts, but here’s what I said at the time:
“Hobby Lobby is a large, big-box retail chain that employs over 13,000 people. If those people (or others like them) didn’t exist or refused to work for Hobby Lobby, the corporation would go out of business immediately and the owners would have to find something else to do. Hobby Lobby, Inc. takes advantage of the publicly-provided roads that its employees, managers, and customers take to get to its stores and that its owners use to get to their corporate offices. Those offices were erected with the protection of enforceable building codes that make sure they don’t fall down, and that try to make sure that everyone can evacuate them in the event of a fire. Hobby Lobby, Inc. also takes advantage of municipally provided services, including the installation of stormwater systems that deal with the massive runoff caused by big-box stores’ parking lots. Hobby Lobby, Inc. also takes advantage of local police and fire services that protect their investment in their stores. All of these things are provided substantially by property taxes paid by everyone living in the municipalities where the owners exercise their freedom to open a store. Hobby Lobby, Inc. also freely avails itself of services provided by state and federal taxes, such as the Interstate highways on which it can transport its goods (highways which have to be widened at great public expense when suburbanization creates new local markets for its stores). Hobby Lobby, Inc. also has no moral objections to taking advantage of the national defense system that keeps its stores safe from foreign intervention, or the publicly funded legal system that allowed them to challenge the ACA and that enables them to recover money from those who owe them. No, in general, it seems that Hobby Lobby, Inc. depends quite a lot on the society in which it does business, even as its owners seek to excuse themselves from its rules. In the meantime, Hobby Lobby’s owners also take advantage of the legal structure governing corporations (Hobby Lobby, Inc. isn’t a sole proprietorship!), such as the fact that they aren’t personally liable for any bad things that their corporation might do. In other words, Hobby Lobby’s owners get to identify with the corporation when it’s a matter of religious belief, but not when doing so is inconvenient.”
It was this line of thought that I most remembered when reading Justice Sotomayor’s dissent in Creative LLC. She notes that:
“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” (slip op., 7).
In other words, you don’t have to start a business, and you don’t have offer your business to the public. But at the point you have established an LLC and offered services to the public, the public is a stakeholder in what you do. You are trading the legal benefits associated with that status for some regulation over what you do. Of course, the Court has repeatedly ruled that corporations can have constitutional rights. But the conservative language around that point is disclosive. Here is Justice Alito in Burwell:
“It is important to keep in mind that the purpose of this [common legal] fiction [of corporate personhood] is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people. …. protecting the free-exercise rights of corporations like Hobby Lobby … protects the religious liberty of the humans who own and control those companies” (706-7)
Notice the gap between the beginning and the end: the people protected in the first parenthetical “include[] shareholders, officers, and employees,” but the religious liberty interests are those of the “humans who own and control those companies.” What happened to the employees? They vanished from consideration.
Now consider Creative LLC. Justice Gorsuch begins by noting that “Through her business, 303 Creative LLC, Lorie Smith offers website and graphic design, marketing advice, and social media management services” (slip op., 1). That is nearly the last mention of “Creative LLC” in the opinion – Gorsuch refers almost exclusively thereafter to “Ms. Smith.”
The other mention of the LLC is when Gorsuch addresses the point that “Ms. Smith offers her speech for pay and does so through 303 Creative LLC, a company in which she is “the sole member-owner.”” He then argues that “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?” (17) and that “Nor …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” (18).
The second argument is on the right topic, but it amounts to less than might first meet the eye if Sotomayor’s characterization in the dissent is correct. As she argues, Smith wants to be able to refuse to sell wedding designs to same-sex couples simply because of their status, independently of the content of the message. She notes that the company could legally “offer only wedding websites with biblical quotations describing marriage as between one man and one woman. 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” (27). In other words – and this is one of Sotomayor’s main arguments – there’s a different between repressing speech directly and repressing actions (in this case, status-based discrimination) that have an incidental effect on speech. In the latter case, the speech interests are still important, but less overwhelmingly so (i.e., the statute gets intermediate scrutiny, not strict).
First Amendment absolutists give very short shrift to the public as a stakeholder, at least when the public’s interest is lined up against religious conservatives. As Kent Greenfield and Daniel A. Rubens point out about Burwell (they also refer to Masterpiece Cakeshop), there’s a subtle elision going on in these cases between the interests of the corporation and those of dominant stakeholders. They also argue that this is, in fact, the opposite of what corporate law is supposed to do, by creating an independent entity. I’m not a scholar of corporate law, and certainly the fact that Hobby Lobby was a “closely held” corporation, or that Smith is the only person involved in 303 Creative LLC, make the cases difficult. But the argument underlines that there is a difference between offering your services to the “public” while availing yourself of the benefits of being an LLC and offering them in your own person. This is precisely what Sotomayor points out in distinguishing the movie-producer cases: “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).” (28).
The conservative worldview, especially the one that’s been around since the start of neoliberalism and Margaret Thatcher’s quip that there is “no such thing as society,” tends to disregard the extent to which the “public” is a stakeholder in what happens in business. Business wouldn’t happen without an extensive publicly run (and funded) apparatus establishing everything from contract rules to limited liability to fire protection. As Bernard Harcourt demonstrated a while ago, the free market fantasy in things like the Chicago futures market exists only by ignoring a great deal of state regulation and rulemaking, right down to the timing of trades. This privatization of the public, and a discounting of its interests as such, is pervasive: I even spent a whole book tracking the disappearance of public interests from intellectual property law.
Sotomayor then notes a problem with discounting the public and its view of equality: “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. 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.’” (31). And:
“The majority protests that Smith will gladly sell her goods and services to anyone, including same-sex couples. 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. 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. This is plain to see, for all who do not look the other way.” (32)
Once that sort of discrimination is on the table, so are things like the refusal to create a wedding cake for an interracial couple, or even the refusal of a stationer “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” (37).
The fantasy of free markets is a great excuse to look the other way. Sotomayor's bracing dissent and its attention to the LGBTQ members of the public who face ongoing and escalating discrimination show why that excuse is weak.
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