For the next few blog posts, there will be a deep dive into the argumentation of the case 303 Creative LLC v. Elenis. The case involves a graphic designer who wanted to expand her business to include wedding websites. However, before doing so, she challenged the legislation in their state in order to post a message on her website stating that she would not create websites for same-sex couples. The deep dive will involve examining the precedents one case at a time.
Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston Inc. is a case from the 1990s that revolves around the concepts of freedom of speech and public accommodation. For decades, the St. Patrick’s Day and Evacuation Day celebrations in Boston were combined into a single “St. Patrick’s Day – Evacuation Day Parade.” From 1947, the event was always organized by a group called the South Boston Allied War Veterans Council (later “the Council”). Each year, they were the only group to apply to be the organizer. In 1992 and 1993, the Irish-American Gay, Lesbian and Bisexual Group of Boston Inc. (later “GLIB”) applied to participate in the Parade but was denied. The issue in this case is whether including GLIB would violate the freedom of speech of the Parade organizers, or whether excluding them violates public accommodation law.
The lower courts ruled in favor of GLIB, but the Supreme Court overturned the decision, ruling that mandating GLIB’s inclusion in the Parade would violate the First Amendment, as it would compel the Parade organizers to convey a message they did not agree with. The Court stated that it might be a different case if GLIB were only being denied the ability to spectate the Parade. However, as participants, GLIB’s message would become part of the Parade’s message. Therefore, the Council had the right to deny their application, as forcing the Parade to convey that message would be unconstitutional. In lower courts, it was argued that the lack of clear criteria for participants meant the Parade had no specific message, and including GLIB wouldn’t contradict any existing message. The Supreme Court disagreed, ruling that excluding some participants sends a message in itself, and GLIB’s participation would alter that message. The decision was unanimous, with no dissenting or concurring opinions.
Hurley is often cited in the case of 303 Creative, especially in the majority opinion written by Justice Gorsuch. This is not surprising, as the cases have many similarities. In both cases, the excluded party is from the LGBTQ+ community, and the central issue is weighing freedom of speech against public accommodation laws. Both cases also raise the question of whether the exclusion of a party falls under the protection of free speech.
Justice Gorsuch uses Hurley effectively in his argument. The quotes and references are relevant to both cases and integrate smoothly into his text. However, in the dissenting opinion, Justice Sotomayor offers strong counterarguments about why Hurley might not be as relevant in this context. One key issue is that the laws don’t apply in the same way to commercial and non-commercial situations, which is a major difference between the two cases, as 303 Creative involves a business owner refusing service. Additionally, Sotomayor argues that while GLIB’s participation in the Parade would affect its message, the websites in 303 Creative could be nearly identical to those of heterosexual couples. The creator of the website wouldn’t have to include any message they don’t approve of, and thus wouldn’t be compromising their freedom of speech. I believe this is the key difference between the two cases.
As an outsider to the US legal system, more familiar with civil law than common law, I acknowledge that my opinions may not always be as well-founded as they could be. That said, one of the challenges of case law is that no two cases are exactly the same. It often seems impossible to objectively determine which case serves as the most fitting precedent, and when differences are too significant for an older case to be applied in a new context. In this case, I think Sotomayor makes a strong argument that Hurley should not be used as a precedent. However, there are enough key similarities between Hurley and 303 Creative, combined with other cases, that I can see it being comparable. On its own, though, without other cases to balance its differences, it doesn’t provide a solid foundation for argumentation.
As mentioned earlier, the ruling in Hurley was unanimous. This invites some speculation, but I believe that if the case were judged today, there would likely be a dissenting opinion. It seems peculiar that, while ideologies do change, the guiding principles of the Court are often based on cases decided by nine justices in the 20th century. I’m not suggesting that these nine justices were unqualified or made the wrong decisions, or that these cases should be retried today. It’s just that attitudes toward certain minorities—such as the LGBTQ+ community—have changed drastically over time, and those shifts could influence current judgments. As we saw with Roe v. Wade, it is certainly possible to overturn an old precedent, though that doesn’t happen often.
Even when a case is overturned, its influence doesn’t disappear. In many ways, older cases are even more valuable than newer ones because they’ve shaped the decisions of all the cases that came after them. Overturning one precedent could lead to the reconsideration of hundreds of others. For example, West Virginia Bd. of Ed. v. Barnette is cited in Justice Gorsuch’s opinion in 303 Creative, and it also appears in the Hurley case and is mentioned briefly in the consideration of Boy Scouts of America v. Dale. These three cases are the core precedents in the Court’s opinion in 303 Creative, showing how far-reaching the influence of Barnette is, even though it may seem less significant at first glance. This doesn’t mean I disagree with the ruling in Barnette—it’s just a great example of how influential a case from the 1940s can be.
The Supreme Court is often accused of being politicized, as some high-profile cases have seen justices clearly divided along ideological lines. The nomination process has also been a topic of intense debate, as the importance of the political views of the justices is not lost on anyone. With Trump’s second term, there has been talk that two justices may retire, knowing that their replacements would be nominated by a Republican president. This would mean that one person could have nominated five out of nine justices who decide some of the country’s most important legal issues. The rulings of the Supreme Court will continue to affect each case that comes after them, raising the question: is it too much power for any one person to hold?
Team 303 Non-creative