When is there a constitutional right to discriminate, whether under the free speech clause, free exercise clause, the right to intimate association, or otherwise? The Supreme Court will likely confront that question in the Masterpiece Cakeshop case, as it has in the past in the private club cases (Roberts v. U.S. Jaycees), in the St. Patrick’s Day Parade case (Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc.), in the Boy Scouts case (Boy Scouts of America v. Dale), and in the church employee case (Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC).
Lower courts have had to consider it in other cases as well, such as the roommate selection case (Fair Housing Council v. Roommate.com). You might imagine similar questions in other situations as well: Say a state legalizes prostitution but concludes that prostitutes who promote their services to the public are “public accommodations” much as some courts have found wedding photographers to be public accommodations — could a prostitute be penalized for discriminating among prospective clients based on the clients’ sex, sexual orientation, marital status, disability, religion, race, and so on? (I think that, even under Lawrence v. Texas, there is no constitutional right to engage in sex as a commercial venture, but would it still be unconstitutional for the government to insist that, if such commercial sex is legalized, it has to be furnished on a nondiscriminatory basis?)
The issue has also been arising for abortion; here, for instance, is a press release by the Wisconsin Attorney General’s office:
For the decision striking down the Indiana antidiscrimination statute, see here. I think that many constitutional rights do involve the right to choose whom to speak to, whom to employ as a speaker or as a minister, whom to live with, whom to marry, whom to have sex with, and which fetuses to abort — and that right to choose can’t be trumped based on the government’s interests in preventing discrimination, whether against born humans or against potential future born humans.
This isn’t a general right to discriminate in most aspects of life (hence Dale Carpenter’s and my position in Masterpiece Cakeshop itself); but where a constitutional right is generally present, it often includes the right to choose how and with whom to exercise the right. And while one can debate whether there is a right to abortion, once the court has recognized such a right, it shouldn’t be restricted in the name of equality.
In any event, though, I thought I’d flag the contrary view, because it’s an excellent illustration of the broader issue.