In The New York Times today, David Cole, the national legal director of the ACLU — which has come a long way since defending the Nazis of Skokie on neutral principle grounds —
says “The First Amendment Is Not a License to Discriminate” (before the headline was edited post-publication). Why? Because otherwise, “interior decorators, landscape architects, tattoo parlors, sign painters and beauty salons, among countless other businesses whose services contain some expressive element, would all be free to hang out signs refusing to serve Muslims, women, the disabled, African Americans or any other group.” During Monday’s arguments, Justice Sonia Sotomayor similarly
claimed that the case would be “the first time in the Supreme Court’s history” that it would allow a business to “refuse to serve a customer based on race, sex, religion or sexual orientation.”
This is the lie at the heart of the debate.
First off, if leftists insist on framing the speech debate as a binary choice between compulsion and discrimination … then yes, free expression, explicitly laid out in the Constitution, should trump the right of a stranger to walk into a store and demand the owner say something he does not believe. Using Sotomayor’s identitarian calculus, a shopkeeper would never be able to refuse the demands of any customer who happened to be gay.
The point of public-accommodation laws is to stop discrimination against minorities, not force minorities to adopt the majority's positions.
thefederalist.com