Evaluation of Oral Argument in 303 Creative

the volokh conspiracy


some of my reactions to the oral arguments of 303 Creative LLC vs. Elenis was published as an editorial in boston globe today. Below is a summary for those who cannot cross the paywall.

In short, I think Judge Cagan made the most damaging hypothesis to Colorado’s argument. The website designer has no free speech to refuse to create his website custom for gay marriage. That’s because the state claims that public facilities laws cover acts of discrimination. It just happens to strain the speech. What if a designer put the words “God bless this union” on a website that sells to heterosexual couples instead of same-sex couples? The context would have a dramatic effect on the designer’s own speech. Colorado did not have a good answer to this question. And Brian Fletcher, the U.S. Undersecretary of Attorney, gamely defended Colorado’s position, but if the state applied the law in that way, it would be a direct (rather than “accidental”) speech In that case, the designer’s lawsuit held that applying state public facility laws to parades violated the First Amendment because it coerced speech into Harley’s territory. will go straight into the The implication of this concession is that the Public Facilities Act is subject to strict First Amendment scrutiny when applied to activities that are inherently or historically expressive, such as parades. or custom website designAnd the State of Colorado, the SG Office, and the Court of Appeals have all accepted that such designs are “intrinsically expressive” or “pure speech.”

Fletcher also argued that discrimination against same-sex marriage cannot be distinguished from discrimination against homosexuals based on status. But if it could be applied to force speech against same-sex marriage, I argue, it would have unsettling implications. It could easily be restated as “discrimination based on status.”

Finally, some judges (including Kavanaugh, Gorsuch, and Barrett) seem unprepared to rule that even expressive providers may reject same-sex marriage in all cases. Notice what it looked like. Some of his website services, such as plug-and-play his website and other off-the-shelf template sales, do not have the same meaning in the designer’s expression. But her web designer here offers to sell custom designs. That is the service or product that deserves free speech protection.

I conclude the article with this thought:

ever since Obergefel vs HodgesHundreds of thousands of same-sex marriages have taken place in the United States, with a 2015 Supreme Court decision declaring the fundamental constitutional right of gay couples to marry. I have encountered only a handful of wedding service providers who refuse to take photographs, arrange flowers or bake cakes because they are against same-sex marriage.

The national tradition of pluralism under the First Amendment to the United States Constitution has allowed a small number of expressive providers to oppose same-sex marriage without compromising the genuine need to protect homosexuals in the public marketplace. can correspond to


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