Gorsuch does a good job pointing out some of the logical flaws in Justice Sotomayor’s dissent in the Colorado website cake. The WSJ’s Notable and Quotable gives a fine excerpt, which I have included below, plus a link to the full opinion.
“From Justice Neil Gorsuch’s majority opinion in 303 Creative v. Elenis, decided June 30:
It is difficult to read the dissent [by Justice Sonia Sotomayor] and conclude we are looking at the same case. . . . The dissent claims that Colorado wishes to regulate Ms. Smith’s “conduct,” not her speech. Forget Colorado’s stipulation that Ms. Smith’s activities are “expressive,” and the Tenth Circuit’s conclusion that the State seeks to compel “pure speech.” The dissent chides us for deciding a pre-enforcement challenge. But it ignores the Tenth Circuit’s finding that Ms. Smith faces a credible threat of sanctions unless she conforms her views to the State’s. The dissent suggests (over and over again) that any burden on speech here is “incidental.” All despite the Tenth Circuit’s finding that Colorado intends to force Ms. Smith to convey a message she does not believe with the “very purpose” of “[e]liminating . . . ideas.” . . .
In some places, the dissent gets so turned around about the facts that it opens fire on its own position. For instance: While stressing that a Colorado company cannot refuse “the full and equal enjoyment of [its] services” based on a customer’s protected status, the dissent assures us that a company selling creative services “to the public” does have a right “to decide what messages to include or not to include.” But if that is true, what are we even debating?”