Striving against discrimination and limiting its pernicious effects are fundamental to promoting liberty. But so is allowing individuals to enjoy freedom in their personal lives. The clash of these concepts requires careful balancing both in enacting statutes and in adjudicating their effects on experienced reality.
Recently, the U.S. Supreme Court decided the question of balance but on the basis of stipulated hypothetical statements rather than on facts. The court stated the issue as: “[w]hether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.” 303 Creative LLC v. Elenis, 142 S. Ct. 1106 (Feb. 22, 2022), decided, 142 S. Ct. ___ (Jun. 30, 2023). However, rather than balancing the competing interests, the 6-3 majority gave primacy to its reading of the Free Speech Clause while rejecting the lower courts’ consideration of the interests Colorado sought to protect via its anti-discrimination laws.
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