Public Accommodations Laws, Free Speech Challenges, and Limiting Principles in the Wake of 303 Creative

Authors

Michael L. Smith, St. Mary’s University School of LawFollow

Journal Title

Louisiana Law Review,

Volume

84

Issue

2

First Page

565

Document Type

Article

Publication Information

2024

Abstract

In 303 Creative LLC v. Elenis, the United States Supreme Court ruled that Colorado's Anti-Discrimination Act's prohibition of discrimination on the basis of sexual orientation violated the First Amendment rights of Lorie Smith, a website designer who refused to make wedding websites for same-sex couples. This Article argues that the Court's ruling rested on a vision of state control over speech that was divorced from the law before it. Using this framing of the law to conjure up inapplicable hypothetical scenarios of state-mandated expression, the Court found in Smith's favor. And yet, in responding to the dissent's concerns that the Court's logic could be employed to justify discrimination in a host of additional circumstances, such as interracial marriages, the Court dodged, asserting that those weren't the facts before the Court.

I parse out the errors in the Court's reasoning and demonstrate why its assurances of a limited holding are groundless. The logic the Court employs in 303 Creative may extend to a host of cases, including interracial marriages, any case in which a business argues that its goods or services are expressive, and, potentially, to cases involving free exercise claims by individuals and businesses seeking to discriminate on religious grounds.

In the face of these potential consequences, I propose two strategies for limiting 303 Creative's impact. The first proposes a more restrictive approach to First Amendment claims when businesses seek to discriminate against members of suspect classes identified in the Court's Equal Protection jurisprudence. But this approach carries a risk of stagnation in a nation of diverse prejudices, as the Court has proven loathe to identify new suspect classes. This leads to an alternate approach. Drawing on Jamal Greene's scholarship, I propose that courts engage in proportional analysis of competing rights claims. Rather than the standard approach of maximizing the rights claims of one side of a dispute and minimizing other's, courts should weigh the interests of each against each other. Doing so may rein in the absolutist and overly abstract reasoning on display in the Court's 303 Creative opinion, and encourage more measured and realistic discussion of rights in future cases.

Recommended Citation

Michael L. Smith, Public Accommodations Laws, Free Speech Challenges, and Limiting Principles in the Wake of 303 Creative, 84 La. L. Rev. 565 (2024).