Re: Michigan Car Repair Shop Owner Says He Will Turn Away Openly Gay Customers ... An
If you want a business which can discriminate against gays then you have to go out of your way and organize as a religious non-profit. Likewise if you want to ban blacks or jews or armed citizens or women or whatever then you likewise need to go out of your way to organize as some kind of nonprofit.
I doubt that. The wedding chapel in Coeur d'Alene continually operated as a for-profit business, and yet it was able to refuse to perform same-sex weddings. When the city passed an ordinance that apparently required it to perform them, it sued in federal court, and the city quickly found it was exempt from the ordinance. I have not seen the arguments the owners of the chapel made in their suit, but I think the strongest one would have been based on the freedom of speech.
The more expressive the speech--i.e. the further it involves the business owner in expressing a view he rejects, even if only symbolically--the more likely a state public accommodations law will infringe his right not to engage in that speech. A limousine service or a caterer whose owners oppose same-sex marriage may not be able to refuse to serve guests invited to a same-sex wedding; but an artist who shares their view probably could refuse to paint a portrait celebrating the ceremony.
Government may not compel a person to endorse or propound views he does not agree with. See West Virginia Board of Education v. Barnette (holding a state law which compelled students to pledge allegiance to the flag against their belief unconstitutionally infringed their freedom of speech); Wooley v. Maynard (holding a state law which compelled a person to display the state motto on his license plate, although its message violated his beliefs, unconstitutionally infringed his freedom of speech); Hurley v. Irish-American GLIB (holding a state law which defined a St. Patrick's Day parade as a public accommodation and compelled the organizers to let a homosexual advocacy group participate unconstitutionally infringed their freedom of speech).
Justice Powell's concurring opinion in Pruneyard Shopping Center strongly suggests that in some circumstances at least, government may not be able to compel even businesses serving the public to propound views they do not agree with:
A system which secures the right to proselytize religious, political, and ideological causes must also guarantee the concomitant right to decline to foster such concepts. This principle on its face protects a person who refuses to allow use of his property as a marketplace for the ideas of others. And I can find no reason to exclude the owner whose property is not limited to his personal use.
A person who has merely invited the public onto his property for commercial purposes cannot fairly be said to have relinquished his right to decline to be an instrument for fostering public adherence to an ideological point of view he finds unacceptable.
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A minority-owned business confronted with leaflet distributors from the American Nazi Party or the Ku Klux Klan, a church-operated enterprise asked to host demonstrations in favor of abortion, or a union compelled to supply a forum to right-to-work advocates could be placed in an intolerable position if state law requires it to make its private property available to anyone who wishes to speak.
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The pressure to respond is particularly apparent when the owner has taken a position opposed to the view being expressed on his property . . . [but] the right to control one's own speech may be burdened impermissibly even when listeners will not assume that the messages expressed on private property are those of the owner . . . . (emphasis added)