In this blog text, I am analysing the arguments presented by the Brief for Respondents in a U.S. Supreme Court case 303 Creative LLC. vs Aubrey Elenis et al. (# 21-476) in which the constitutional 1st and 14th Amendments were basically pitted against each other – namely, how far the freedom of speech as rewarded by the First Amendment shall remain uninhibited by the protection of equal rights as enshrined by the Fourteenth Amendment. But while the case ended up as a battleground of those basic rights found drawing battlelines in-between, the Brief of Respondents seems to be forming its arguments from different perspectives.
Right in introduction, brief projects whole certiorari (means a court process to seek a judicial review of a decision of a lower court or a government agency) as inappropriate due to 1) the case not being justifiable, 2) there having not been a meaningful split of opinion in circuit court, 3) case lacking merits for re-examining the 1990 SCOTUS case Employment Division v. Smith and 4) Anti-Discrimination Act of State of Colorado being constitutional in itself. (1)
The first disqualifying criteria of the case not being justifiable is based on two sub-points of a) the petitioner having not shown a credible threat of enforcement and b) having not established key forward assertions necessary for establishing ripeness for the case. The first point made refers to existing circumstances where Colorado neither imposes criminal penalties nor has an active programme to discover the violators of Anti-Discrimination Act (8) while the second half of the argument petitions for whole case being hypothetical at the time of the complaint. Namely, the wedding website in question does not exist, future customers are theoretical and a potential complaint non-existent.
As a second argument, brief asserts that petitioner has overstated the judicial conflicts in the lower courts. In referred cases of Telescope Media and Brush & Nib either the final judgment does not conflict or a split of authority has been minimal at best. (15) Third case of Coral Ridge Ministries Media v Amazon.com does not involve a denial of service to customers (15) and the other mentioned cases pre-date Fulton v City of Philadelphia, which set a precedent on First Amendment rights. Thus respondents’ brief argues that the conflicts petitioners refer to either do not exist or are irrelevant due to a later precedent.
Thirdly, brief sees as unsuitable for reconsideration the 1990 precedent of Employment Division v Smith as far as the judicial restrictions affecting certain religious practices are not seen as violations of the right to free exercise of religion as long as those laws are neutral, generally applicable, and not motivated by animus to religion. Brief states that Colorado act already has a religious exemption and meets the Fulton standard of neutrality. Additionally, a 2020 resolution has enhanced free exercise protections further than they were at the time of preceding Masterpiece Cakeshop case. Finally, respondents see that the high burden of overturning precedent has not been met and there is no sufficient factors for disregarding stare decisis.
Finally, on its 4th main point brief refers to the 10th Circuit court’s determination of the Colorado Act being constitutional. It is to be seen as an “unexceptional regulation of commercial conduct” (24). A very common law requires businesses to serve all comers and changing the nature of the sale from goods to services should not change this analysis. (25)
As a conclusion of these factors listed above, the brief of petitioners did request that petitioner’s writ of certiorari was to be denied. Noticeably, the brief does not target a positive opinion of the court in certiorari, but rather that the case is thrown out as baseless and without a new opinion of SCOTUS.
Overall, the Brief of Respondents in 303 Creative LLC. vs Aubrey Elenis et al. relied more in technicalities of the case than in fundamental defense of 14th Amendment protecting all US citizens from any kind of discrimination. Whether this strategy was based on a vague vocabulary of the 14th Amendment or a pre-knowledge of the tendencies of the current SCOTUS is tough to say. Respondents’ solicitors may well have been correct in their assumption of the court leanings, but the way brief was conducted gave SCOTUS also leeway of passing judgments in some more ethical questions raised by the case.
Team 303