The opinion of the court in 303 Creative Llc v. Aubrey Elenis 600 US (2023) 303 Creative shows the cultural emphasis of the constitutional right to freedom of speech. The court set the precedent that individuals’ constitutional right to express themselves overrides groups’ right to equal access to non-vital and non-monopolistic services. The court held this standing, and clarified that this right given by the first amendment is universal even in the cases where the speech is misguided (303 Creative v. Elenis, (Gorsuch, J.) p.8 (as the blog text concerns only the opinion of the court, future citation will be expressed by only the page number of the opinion of the court)). The court reasoned that by allowing everyone to speak their mind, the nation as a whole will be filled with better reasoning and thinking individuals (p. 6).
At first glance, the opinion of the court might seem like a total atrocity and enabling major discrimination. But if we dive deeper into the opinion of the court, it has some great argumentation but also showcases the legal landscape of the U.S. and assessment between different constitutional rights granted individuals.
The majority set out two vital problems to solve in their ruling: firstly, was Ms. Smiths’ graphic designing “speech” in its constitutional meaning? Secondly, if the commercial activity qualified for the constitution’s meaning of speech, did Ms. Smiths’ freedom of speech enable her to refuse service to a certain kind of group of people, thus making the Colorado state law illegal?
The answer to the first question was yes. Ms. Smiths’ field of work was of a kind that constituted speech (p.10). It was seen as so expressive that it constitutes speech, a view which the Colorado tenth circuit also agreed on (p.10).
The second question was more problematic: the court acknowledged that there were arguments for and against the conduct. The court also acknowledged that the case would be different, if the service provided were public accommodation or something that was not seen as constitutional speech (p.13).
The court did not entirely ignore the processing of the precedents arguing against the ruling, but it did differentiate them from the case in hand one case at a time. At the same time the court declared the cases against the ruling non-compatible with case 303, it identified with the cases that argued for the ruling.
The ruling wasn’t just cherry-picking and bending the narrative. The court expressed clearly that the ruling did not mean that the U.S. Supreme court accepted or agreed on unequal treatment of consumers, but the service provider did still have the right to deny orders that were advocating against their beliefs. In the opinion of the court, it was also expressed that the parties agreed that the case wasn’t about denying any kind of service from sexual minorities (p. 17), and the court had the case law to validate the outcome.
One thing I think the court failed to assess, was the difference between racial equality and the equality of sexual minorities. With the cases referenced, the division between discriminatory and non-discriminatory behaviour was clearly dependent on the subject of the alleged discriminatory behaviour. All the cases arguing against the ruling concerned racial discrimination, and most of the cases supporting the ruling concerned sexual minorities.
In my opinion, this emphasis of racial equality is derivable from the cultural history of the United States. The historic weight concerning racial discrimination is a clear motivational factor to rule against racial discrimination.
The notion that individuals have the right to think and express themselves in any way, even if misguidedly, seems contradictory in relation to this precedent. If the individual’s right to think freely is so vital in U.S. legal culture, why is thinking in racial matters left outside it? The comment is of course not advocating for racism, but to point out the contradiction in the case law. It is entirely possible that the decision not to express this central fact regarding the case law was a conscious decision by the majority. It might have been too hard to circumvent legally, so to not weaken the argumentation this fact was left unattended.
As a whole, the opinion of the court in 303 Creative gives a great insight on the U.S. legal and cultural landscape. It points out the emphasis and broad interpretation of the U.S. constitution, the respect of tradition and the different interpretation of equality between the subjects. Furthermore, it also emphasizes the cautiousness regarding racial issues and negligence regarding sexual minorities.
The opinion of the court shows that it is not only important to protect individuals’ rights but also to be better than the disagreeing justices. The opinion of the court used a large amount of paper space to send jabs at the dissenting opinion, stating for example that “The dissent’s treatment of precedent parallels its handling of the facts” (p.22) and that “The dissent is right about one thing”, while agreeing on the effect time makes to the constitution’s interpretation (p. 24). As a Finn, it seems absurd that the members of the supreme court of the United States uses time and writing space to argue with and belittle each other.
It will be interesting to see how the treatment of sexual minorities evolves in the coming years. At this moment, the unequal treatment of sexual minorities has a long tradition and legal support, and it has not been seen as a major issue in the U.S. legal system. The issue has however been recognized culturally, and more and more people are being vocal about it. It might be entirely possible, that we look back at these rulings the same way we look at the racial rulings of the 19th and the early 20th century.
The ruling and the court’s leading thoughts could be summarized by one line written at the end of the opinion of the court: “The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands” (p.26). The ruling was just as a European stereotyping person would envision the U.S. judicial system to be like. The land of the free. Except if you are gay. Then you have to find another place to buy your services from. If it’s not in a monopolistic sector of business. Then your rights are protected.
Team 303