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August 05, 2023

303 Creative ruling misplaced in 1st Amendment jurisprudence, say panelists

On the last day of its past term, the U.S. Supreme Court ruled that the 1st Amendment of the U.S. Constitution prohibits Colorado from forcing a website designer to prepare an expressive message for a same-sex marriage with which the designer disagrees.

Left to right: Moderator Jennifer C. Pizer with panelists Eric R. Olson, Fred Smith Jr. and Sunu P. Chandy

Left to right: Moderator Jennifer C. Pizer with panelists Eric R. Olson, Fred Smith Jr. and Sunu P. Chandy

American Bar Association photo

While the 6-3 decision closed the case, 303 Creative LLC v. Elenis, it effectively opened the door for a potential host of other legal questions related to the doctrine of free speech rights in commercial settings, and the enforceability of a slew of public accommodation nondiscrimination laws.

On Aug. 5 at the 2023 American Bar Association Annual Meeting, panelists on the program, “Bar-b-q, Wedding Cakes and Websites: The First Amendment vs. Anti-Discrimination Laws,” tackled some of the questions raised by the decision. They also harshly criticized the majority opinion for its legal reasoning and that the case itself was based on a hypothetical set of facts.

“Now the question is,” said moderator Jennifer C. Pizer, chief legal officer of Lambda Legal, “where does the law apply?”

That question is one of the most significant that has emerged from the Supreme Court’s past term: What is the proper balance between public accommodation and related civil rights law and religious freedom and free speech.

In the website designer case, Lorie Smith wanted to expand her graphic design business to include services for couples seeking wedding websites. But she worried that Colorado would use the Colorado Anti-Discrimination Act to compel her to create websites celebrating marriages that she does not endorse and filed a lawsuit seeking an injunction barring the state from forcing her to craft websites for unions that she does not support because of religious reasons.

Panelists cited the hypothetical nature of the case as reason why the Supreme Court should have not taken it up in the first place.

“We don’t know if anybody would have asked her to design a website,” observed Fred Smith Jr., a professor at Emory University School of Law. “There are no facts. … You shouldn’t decide a hard case like this” without context and limits, he added. “My opinion of this case is that it was too early.”

Sunu P. Chandy, legal director of the National Women’s Law Center, agreed that the court docketed the case prematurely, and lamented that the decision means “for the first time” that the line of public accommodations cases related to businesses “has gone backwards.”

A third panelist, Eric R. Olson, argued the case before the Supreme Court in December 2022, on behalf of the state. Now in private practice, Olson is the solicitor general emeritus in the Office of the Colorado Attorney General, and in his remarks emphasized that there was nothing in the case record to establish that Smith would be harmed.

“The harm that comes is that you do not belong,” he said of the potential victims whom Smith would potentially turn away.

Olson also took aim at fellow Coloradan Justice Neil Gorsuch, who wrote the majority opinion, and Justice Samuel Alito for not basing their questions in oral argument on the facts. He suggested that Gorsuch believed that Colorado’s pro-active effort to help people better understand discrimination laws is “something like a North Korean re-education program.” In 2018, a Colorado bakeshop owner prevailed in a similar case although the court based its ruling then on a narrow issue of law.

The potential impact of the 303 Creative decision is hotly debated in legal circles. A day earlier at the ABA Annual Meeting, for instance, a panelist on a program critiquing the past term of the Roberts court suggested this doctrine of law is “up for grabs” with lots of uncertainty of just how far the court is going to go.

Chandy summed up the dilemma ahead. As a lawyer, she explained, she would guess that 303 Creative would be “narrow” in its impact. But as a woman of color and longtime civil rights lawyer, she could see the decision being used for “different categories of people.”

She fears, people might say, “I am not into you, and I am not going to do this for you.” Added Smith, echoing a similar concern: “This (decision) is a stake in the ground that it is OK to turn people away.”