Author: sjhurr

When the Supreme Court issued its ruling in Students for Fair Admissions v Harvard and held that the use of race-conscious admissions programs violates the Equal Protection Clause of the Constitution, the majority opinion rejected the Court’s earlier view found in Bakke, Grutter and Fisher that affirmative action was constitutional. And while these previously issued rulings might be considered complicated concerning both the splintered opinion in Bakke and Grutter’s 25-year time limit that is very prone to interpretation, in Students for Fair Admissions v Harvard the Court invoked two significantly more unambiguous decisions from its past: Brown v Board of Education and Plessy v Ferguson, especially Mr. Justice Harlan’s lone dissent. 

In 1896 the Supreme Court heard arguments in a case called Plessy v Ferguson about whether the Jim Crow era doctrine of ‘separate of equal’, and by extension the Jim Crow laws of the American South that segregated Black and White people from each other, were constitutional. In an 8-1 ruling, the Court stated that separate railcars for Blacks and Whites were equal despite their separateness and that the separateness of the races alone did not constitute a sense of inferiority. The rationale that would be heavily questioned 58 years later. The essential finding of Plessy for a reader from the 21^st century was that the Constitution was not color-blind and that there was constitutional basis for judging people differently according to the color of their skin. It could be said that the decision in Plessy was weaponized by the majority opinion in Harvard to strike a resemblance between it and Bakke, Grutter and Fisher – the Supreme Court rulings that upheld affirmative action in higher education. Justice Harlan’s dissent, however, left the door open for the Roberts Court to cite it to show how “Justice Harlan knew better” than to want to uphold a scheme that gave one racial group an advantage over the other merely on the basis of race.

However, 58 years later in what is nowadays known as one of the most significant landmark cases in the history of the United States Supreme Court, a unanimous panel of the nine justices held that the ruling made in Plessy had to be overturned. In 1954, a case by the name of Brown v Board of Education re-examined whether segregation in public schools and the doctrine of ‘separate but equal’ were still considered constitutional. A Black plaintiff called Oliver Brown challenged the policy of a segregated public schooling system in Topeka, Kansas in a lawsuit that eventually reached the United States Supreme Court. In a turn of events that seemed and eventually was seen as a political rather than a judicial fight, Chief Justice Earl Warren wanted to build a consensus around a single opinion that would end racial segregation once and for all. What followed were two unanimous opinions with no concurring opinions presented, and an assertion that public schools must start admitting children “on a racially nondiscriminatory basis with all deliberate speed”. The irony is that while the decision was one of the first steps in ending segregation and it worked in favor of Black Americans, the decision was later used as a stepping stone for the Court’s current conservative majority to strike down colleges’ affirmative action policies that had also favored Blacks for at least five decades (with Bakke being decided already in 1978). The rationale was that the Constitution was not color-blind only when it benefited Blacks, but that it had to be color-blind no matter what the outcome of that color-blindness would be. Affirmative action was a historical error just like segregation, and one wrong couldn’t be used to remedy the other.

At the end of the day, it didn’t matter what amount of precedent lay between Brown and Students for Fair Admissions v Harvard. Historical errors had to be made right no matter how long that erroneous interpretation had reigned. The parallel was also visible, almost crystal clear, in the majority and concurring opinions: just like Brown corrected the historical error made in Plessy, so was Students for Fair Admissions v Harvard almost compelled to correct the Plessy-echoing errors made in Bakke, Grutter and Fisher.

Team L. M. W. F. (Harvard, Case Genetics)

In the case 303 Creative LLC v Elenis the petitioner Lorie Smith is a christian who intends to expand her business to create wedding websites for couples. However, she claims her religious beliefs prohibit her from creating wedding websites to same-sex-couples, because that would require her to speak a view of marriage that violates her convictions. Colorado’s Anti-discrimination Act (CADA) prohibits her from publishing a statement that she will not create same-sex wedding websites and limiting her services to marriages between a man and a woman. Mrs Smith is suing, arguing that the State is compelling her speech by applying the CADA public accommodation law. There are extensive arguments and argumentation presented in the brief of the petitioner, but I will focus on a few of them I find to be interesting. 

The brief of the petitioner expresses that “everyone agrees that Smith’s websites are speech” (in her opinion pure speech). The basic legal claim of the brief is that the case is a First Amendment free speech case and the petitioner is an artist protected by the constitution. The most significant fact to the petitioner  is that (in their opinion) CADA is compelling speech based on content and censors artists, which  violates the First Amendment. They argue that CADA makes an artist’s speech itself an accommodation and compels the petitioner to speak against her convictions. The petitioner is referred to as an artist opposed to Colorado’s view of the petitioner as an actor in business. 

In the background of the brief, you can see a battle between conservative and liberal ideologies. This is also a wider debate in the USA society, where ideologies collide and the society remains highly polarized on issues. The petitioner is a religious conservative, which plays a huge role in this brief. The petitioner believes that “her creative abilities are a gift that must be used in ways that glorify and honor God”. That is why she cannot promote a concept of marriage that is “not solely the union of one man and one woman”. This case  is to the petitioner  about her freedom of religion and conscience. The petitioner claims that the State has liberal values and she expresses that her (religious) views differ from the state’s ideology and that is why she is being punished. She thinks that the government “stigmatizes her viewpoint as unwelcome”. 

The petitioner creates a very steep contrast between the state and the individual. Reading the brief, you can see a confrontation between government interest and individual rights. It is directly said that there is no government interest. On the other hand Mrs Smith’s religious beliefs and convictions are presented on the opposite side as her important individual rights to decide what messages she conveys. To support the view that Colorado is breaching her rights, the brief of the petitioner attacks the actions of the State of Colorado and its accommodation laws harshly. The petitioner Mrs Smith feels that the state has silenced her voice and is picking ideological winners and losers. CADA is called a “state sponsored censorship” and “coercion”, an “invalid restriction on constitutionally protected speech” and it is described to replace speaker autonomy with the government’s message. I have a page worth of example extracts to insert in this section but I will end with the following quote: this “ highlights the true nature of how Colorado applies CADA: to censor and punish those who express a view on marriage contrary to the State’s own”.  

One can see an attempt to distinguish freedom of conscience (religious freedom) and discrimination from each other in this case. This is also due to differentiating between state interest (preventing discrimination) and individual rights (freedom to choose what messages one will send out). The claim is that everyone agrees that the petitioner does not discriminate against clients based on protected qualities like race, creed, sexual orientation, or gender. However, she will not serve any request to convey a message and to create content that contradicts the truths of the Bible, no matter who the client is. Basically, she “does not discriminate against anyone. She simply claims the constitutional right to exercise autonomy over her own messages” and that is something that the free speech of the First Amendment protects in her view. The petitioner believes that including those messages to her work would make it seem that she regards them as “worthy of presentation and quite possibly of support as well” thus altering and forcing her to speak a message she otherwise would not. 

In conclusion, the brief of the petitioner builds a strong contrast between the government and individual rights. The brief also uses very definitive language like “compel”, “coercion” and “betray their convictions” to accentuate their point. The main point for the petitioner is that Colorado’s action should be regarded as compelled speech and breach of the First Amendment and that the petitioner is regarded as an artist. This is another good case example of the battle between conservatives and liberals in the United States and between individual rights and government interest. This brief showcases those confrontations in an interesting way. 

Team 303 Creative, Case Argumentation Analysis

Looking things from a civil law system, we can often find the common law practices perhaps quirky and downright incomprehensible. This holds true even when we remember that the foundation of the continental civil law systems of Europe builds on the same Roman laws revived as the common law system of Britain – and its somewhat unruly offspring in the United States. And further, this doesn’t help us much despite the fact that Roman laws were built originally on the clever analogies construed from the preceding cases – the very blueprint of common law heart.

This confusion built upon the fork of the systems after the revival of Roman law is developed further when we look into the separation of powers to three; A theory first given prenatal care by English John Locke and then midwifed by French Montesquieu but first given birth over the vast sea by the United States in her own struggle into existence. The theory has been considered quintessential to the rule of law and guarded more or less strictly across the Northern Atlantic. But it can be argued the very womb that gave it practical life has started to mutate it from the very birth through not only muddying the distinction between legislative and judicial powers on the matter of addressing holes in the legislation but also by enabling the fourth actor into the process of creation of justice.

A big distinction between common law and civil law systems is how to handle situations where there is no law on the matter at hand. For a civil law system, this creates a dilemma as it expects a statute, legislation from the legislative branch to rely on and interpret by the judicial branch. The line is relatively clear until we run into a situation where the legislative branch has not yet acted – and this is where the common law shines with its approach of organically interpreting the situation based on analogously equal situations to create new law not yet in existence to give justice even in the absence of law to rely on. For this and Lincoln’s famous notion of “government of the people, by the people, for the people”, it is easy to see the people, the Average Joe as the instigator of new law with their practical need for justice. But do they have the ever-so important constitutional right for this immense power?

For the separation of powers, neither the theory of Montesquieu or the birth certificate known as Constitution addresses the origin of justice exhaustively. It can be read in both implied to stem from the life of people, but both stay silent as explicit statements. Perhaps it could be seen as irrelevant to core of both, but looking for the justification of people taking an active role in forming legislation does put forward a question on blurring the line between judicial and legislative powers.

From the respondent’s brief in 303 Creative LLC v. Elenis 600 U.S. ___ (2023) (Slip Opinion) (303 Case) we can see the state stressing this as practical questions; Does the petitioner have a standing? Is the case ripe enough to be addressed by the judicial branch? Would the judicial branch overreach in the matter and deprive both the legislative branch its constitutional power to set the law and the executive branch to bring it to life? The last question is not put forth for the Court as such, but the first two imply it on the construction of the ripeness doctrine itself.

Both the standing and the ripeness doctrines of the United States legal system have been construed through the jurisprudence of courts and not by legislators through statutes. The construction of both stems directly from the Constitution – even when neither is addressed in detail by the Founding Fathers. The ripeness of a case is, in fact, founded on the use of two words in Article III, section 2. “The judicial Power shall extend to all Cases (…) to Controversies”, is the foundation of what allows the judicial branch to decide its own limits of judicial power. “Cases” and “Controversies” are the two crucial words where Supreme Court of the United States (Court) has founded its claim on when it can rule on justice when the legislative branch has refrained from using its power to set the rules according to the opinion of the Court itself. Thomas Jefferson was surely correct in his assessment when protesting United States v. Burr, 25 F. Cas. 30 (No. 14,692d) (CC Va. 1807) of the judicial branch being the most jealous of their independence among the branches of government.

The heart of a common law system is living institution of people’s need for justice and judicial branch answering this call, pumping new life to old law with new interpretation. But when the judicial system allows people to bring cases directly to court without certainty on legislative and executive powers input prior to judicial consideration, the heart is allowed to pump without figurative lungs providing oxygen and nervous systems guiding where the blood flows. Can the good will of people bringing the case be trusted to represent the will of the people intended in the word of Constitution – or could it include a political virus seeking to usurp the system with its own agenda?

In 303 Case the state challenges the standing of the petitioner arguing that petitioner has not in fact even offered services the petitioner uses as a vehicle for her legal agenda. Further, the state argues the case is not ripe because there has not been executive history of the statute being used in the manner she claims would lead to self-censorship and thus she cannot claim an injunction without credible threat of violating her first amendment right to free speech by compelling her speech. In their challenge to standing and ripeness, the state does not directly argue on the basis of precedents that gave birth to the doctrines but instead to the more recent and more closely analogous cases, which creates a path for the justice.

From the Constitution to precedent, from the precedent to governing case and from there to a singular case through interpretation. Applying the hermeneutic circle seems to connect us again to similar mechanic of finding the grand truth of justice as in civil law systems, but the question remains, does this still honor the separation of powers in the core of many western systems, put even into the letter of the Constitution?

In her reply brief before granting the certiorari, the petitioner argued the ripeness and standing issues have been already held correctly by previous proceedings and found the case justiciable, that is, both ripe and the petitioner to have standing. And the Court granted the certiorari limited to question that did not address the ripeness or the standing doctrines, implying the Court was satisfied with the holding of the previous courts.

In conclusion, the 303 Case does not implicitly say anything of the people’s right to create or alter law in the United States, but in its silence it gives tacit approval to previous courts’ holding on standing and ripeness; accepting a single, unelected private individual to bring a case without a factual event and argue on that, based on her Constitutional right, to deny the elected legislative branch their power to give law and the appointed executive branch to enforce the given law. This could embody the power of people in rule of law society, but it could also be argued the people are a mere vehicle for judicial branch to extend their power by their own, independent rule – Do either of these interpretations fit comfortably in the theory of separating the powers to three?

Team 303 Creative, Case Argumentation Analysis

The Supreme Court ruled in favour of the petitioner, Ms. Smith. In the opinion of the Court, it held that her business and its creations are to be understood as pure speech which is protected by the Free Speech Clause of the First Amendment. That is to say, her right to decide what she speaks for and is willing to express in her work will prevail over the local Colorado Anti-Discrimination Act (CADA) due to the latter being in violation of the Constitution and the First Amendment.

In order to gain the protection of the First Amendment, it is crucial that Ms. Smith’s work is demonstrated to qualify as pure speech. The Supreme Court built this qualification on the precedents showing expressive traits that were considered as pure speech, stating that the facts are close to identical to hers. Firstly, in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston the Court held that a parade receives the protection of the First Amendment as free speech. Thus, a public accommodations law could not be applied in order to force the parade to include an LGBTQ-group as it would manipulate the expressive content of the parade. Secondly, in Boy Scouts of America v. Dale the Court held the association to be expressive and therefore receive the protection of the First Amendment. Thus, the association could not be compelled to include a membership of a gay person as it would interfere with its beliefs, namely its speech.

The above-mentioned cases bring to light that the First Amendment does indeed protect an individual’s right to speak their mind without the government controlling it. It is somewhat admitted in the opinion of the Court that the speech of a person does not need to be considered sensible but that it is not the government’s job to harness individuals to exhibit their preferred messages as that would be in violation of the Free Speech Clause. Therefore, it is very well possible to exclude unwanted voices in one’s speech or expression despite it appearing occasionally discriminating, such as in Ms. Smith’s case.

To further enhance the sole purpose of excluding voices Ms. Smith does not believe in, she and the State stipulated to some facts. She is willing to work with all people regardless of classifications but will not be compelled to express voices that contradict the biblical truth. Both parties also stipulated to all the provided services being expressive. These are the decisive facts from which it is possible to derive that her work does qualify as pure speech reflected both on the facts as well as the precedents. Moreover, her exclusions in creating certain content are not to be understood as discrimination as she is willing to work with all people. She merely seeks to speak her voice with the clarification that she will not be compelled to produce content that does not express a voice of hers but the State’s. However, it is another discussion whether the State did pose a true threat to her.

To wrap it up, we shall note two conclusive elements in the Court’s ruling. Firstly, there is the fact that the Constitution will prevail over local regulations. That being said, by seeking protection under the First Amendment and its Free Speech Clause it is very well possible to override, so to speak, restrictions or control around expression. Therefore, coming to the second fact, Ms. Smith needs her work to be qualified as pure speech, which requires it to be of expressive character. In the light of the precedents, the Court came into the conclusion that the facts align, and her work will receive the protection of the First Amendment allowing her to exclude voices she does not agree with.

Team 303 Creative, Case Argumentation Analysis

In 2022, the United States of America had a conservative majority in the supreme court with six out of nine judges being conservative. In the US supreme court the ideological majority has a major impact on the resolution of the cases. The rights of LGBT+ people have improved very much in the USA, for example, same-sex marriage being legalized in 2015. This 303 Creative v. Elenis case is still a great example of how LGBT+ rights are still debated. 

The dissenting opinion in 303 creative case was written by Judge Sotomayor and other liberal judges were concurring with it. In short, the case was dealing with a wedding website company 303 creative. The company wanted to refuse to serve same-sex couples on the basis that they thought gay marriage is not godly and associating with gay people is a sin in their books. 

In 303 creative case both the majority and the minority judges are focusing on different things when thinking about the case. The majority focuses on the US constitution 1st amendment clause about free speech. They claim that Mrs. Smith’s, who is the owner of 303 Creative, free speech is being violated if she cannot state on her website that she will not make websites for same-sex weddings. On the other hand, the dissenting opinion focuses on whether Mrs. Smith is discriminating against LGBT+ people by not wanting to make the websites.

The biggest differences between the opinion of the court and the dissenting opinion are, for example, whether 303 Creative should be considered a business or whether Mrs. Smith is an artist. This divide also brings up the question whether the case is about a business violating Colorado Anti-Discrimination Act (CADA) and trying to discriminate against LGBT+ people or about an artist whose free speech is violated. The dissenting opinion argues that 303 Creative is a business that wants to provide goods and services to the general public, so the compelled speech laws are to be taken into consideration. The dissenting opinion argues that the facts in this case are similar to Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission where the cakeshop did not want to make a cake for a same-sex wedding and the Supreme Court declared that to be discriminatory. Similarly, 303 Creative case has a business, that is selling their goods and services to the general public, wanting to refuse service for same-sex couples.

The court and Mrs. Smith go to great lengths to claim she is not discriminating against same-sex couples. They argue that the discrimination claims don’t have any basis in this case because she is not discriminating. She said that she refuses to make a website for a same-sex wedding but will not refuse service for same-sex couples. Sotomayor responded to this with “This logic would be amusing if it were not so embarrassing” because it does not make sense that she will only serve same-sex couples if they want to purchase a hetero-weddingwebsite, the website cannot then be for the said same-sex couple. Sotomayor argues that it is discrimination. He brought out the Heart of Atlanta Motel Inc. v. United States case in which the Motel refused to serve Jewish people with a sign “no dogs or Jewish allowed”. With the majority’s logic in the 303 Creative, it would have been allowed that the heart of Atlanta motel allows Jewish people to buy a hotel room for their white friend. There are multiple of these kinds of cases where a business states either with a sign or in their website that they will refuse service for some people. 

Sotomayor gives many examples of flaws that tell how this logic is discriminatory. For example, a photographer can choose to only take school photos, but it becomes discriminatory if they only choose to photograph white or straight students. With this logic, the dissenting opinion also gives examples of how Mrs. Smith could express her views without discriminatory behavior. It is discrimination to put out a sign that refuses service of some marginalized community but it is not discriminatory if she only provided websites that have biblical quotes or even “marriage is between one man and one woman” written. A business can choose what they sell but not who they sell it to. 

Sotomayer also points out many societal problems this case encourages. Historically, LGBT+ people have been stigmatized and their rights have been, and still are, threatened. The case does not only affect LGBT+ people but all minorities. Civil rights movements in the USA were originally generated to fight racial segregation and have been reaching all minorities. These cases send a message to minorities, and here especially LGBT+ people, that others do not care.

Team 303 Creative, Case Argumentation Analysis

The Supreme Court case 303 creative LLC v. Elenis 600 U.S. ___ (2023) (Slip opinion) about compelled speech uses a lot of references to the Supreme Court case Rumsfeld v. Forum for Academic & Institutional Rights Inc., 547 U.S. 47, 61 (2006) (FAIR) in its documents from the Briefs to the Court’s opinion and the dissenting opinion. To understand the use of this particular case on both sides, we must first briefly go through the FAIR case.

The FAIR case focused on the First Amendment’s freedom of speech, more specifically on compelled speech. Schools were compelled to give equal access to military recruiters on campus even though their policies on homosexuals did not align with the school’s students or faculties values. Because of the Solomon Amendment, schools would lose some of their federal funds if they did not accommodate the military. FAIR (Forum for Academic & Institutional Rights Inc.) argued that the Solomon Act violates the First Amendment because the forced inclusion of military on campus can be seen as compelled speech, and they did not want to be associated with the military’s policies as they did not agree with them. The Supreme Court ruled that the Solomon Act does not violate the First Amendment. They argued that just the presence of the military recruiters does not violate the school’s right to association and the school’s faculty and students are still free to disagree with these military policies and are able to express that. Giving equal access to campus was not viewed as an issue about speech at all. 

The FAIR case is first brought up in the 303 creative case in the Brief of Petitioners. It’s mentioned that the Court has repeatedly held that the government cannot regulate what people should say and that the question is about the line between speech and conduct. They also question whether forced accommodation involves a form of expression in their case or not. The petitioners argue that their message is affected by the speech they are forced to accommodate and therefore this case is about compelled speech. It is brought up that in FAIR there was no violation of the First Amendment because the accommodation of the military did not sufficiently interfere with the school’s message. They were only compelled to give equal access to the campus. The outcome would’ve been different if the school’s were compelled to add the military’s policies on their courses of curriculums. The petitioners think that the FAIR case does not apply to this one and should be distinguished.

The Supreme Court ruled in favor of the petitioners. The majority of the court also wanted to distinguish the 303 case from the FAIR case. They agree that in FAIR the compelling happening was in fact incidental and not about the freedom of speech. The 303 is different because Colorado did not seek to impose incidental burden on speech but rather force an individual to say a message that does not align with their beliefs and that holds political and religious significance. Therefore, the FAIR case should not be affirmed in this case, and if it was the First Amendment would not tolerate it. They added that even if FAIR is recognized, the government cannot affect a speaker’s message. 

The respondents however wanted to use the FAIR case as a base for the 303 case. In the Brief of respondents it was brought up that antidiscrimination laws were upheld in the FAIR case and that the case was about regulating conduct and not speech. The petitioners had brought up an argument about how they are communicating that they support a message they do not agree with based on providing service but this type of argument has been rejected in the FAIR case, so the respondents want to reject this one as well. The Brief states that selling a service for a website is not seen as expressive and that a difference can be seen between providing service and the petitioner’s opinions. They are also able to speak their own message if they want to, therefore the message is not affected by Colorado’s nondiscrimination regulation. The respondents feel that 303 creative’s proposal conflicts with the FAIR case and should be rejected on that basis. 

The dissenting opinion of the Supreme Court minority agrees that the FAIR case should be reaffirmed. They argue that the law in question regulates conduct rather than speech and that the regulation’s effects on the speech included in Smith’s services are incidental. Smith can choose their clients based on the message they want to spread but not based on the clients’ sexuality or other traits. So for example Smith can say that they will only publish texts aligning with the Bible, but they cannot put up a sign on their website that says they do not provide services to sexual minorities. Therefore the state of Colorado is not requiring Smith to speak the state’s preferred message nor does it prohibit Smith from speaking their preferred message. The Supreme Court’s minority sees that this case is in fact about public accommodation. They also bring up that while the majority of the Court argues that the speech in FAIR was logistical and therefore not included in the First Amendment, Smith is refusing to publish even logistical speech such as the date of the wedding. This makes the majority’s argument invalid. Based on the standards mentioned in FAIR a regulation is acceptable if it’s unrelated to the suppression of expression and promotes substantial government interests that would be achieved less effectively absent the regulation. The Supreme Court’s minority sees that this standard is achieved and the regulation is allowed. 

The FAIR case has been a major source of arguments for both parties of the case as well as the Supreme Court Justices. The dissenting opinion of the Court and the respondents want to reaffirm FAIR in the 303 creative case, while the majority of the Court and the petitioners want to distinguish FAIR from this case. It is interesting to see how both parties managed to interpret the same case in a different light that would benefit their own arguments and beliefs. However, when you have read all the documents in this case, the dissenting opinion and the respondents have more logical arguments that are based on previous cases as well as law. This raises a question about how the Supreme Court is able to make decisions with arguments that are not necessarily based on law or how the previous cases are meant to be interpreted, and this should definitely be looked in to more. 

Team 303 Creative, Case Argumentation Analysis

In this text, we’ll explore the legal case 303 Creative LLC v. Elenis. We’ll look at how the court made its decision, considering past interpretations and legal precedents. We’ll also check out similar cases in the past to see how the court usually handles these situations. Lastly, we’ll discuss potential future developments and the impact this ruling may have on upcoming legal cases.

In the case 303 Creative LLC v. Elenis, Lorie Smith, who owns 303 Creative, provides website and graphic design services through her business. Recently, she considered expanding her services to include offerings for couples seeking wedding-related websites. However, Ms. Smith has concerns that Colorado’s enforcement of the Colorado Anti-Discrimination Act could potentially compel her, in violation of her First Amendment rights, to create websites celebrating marriages that go against her personal beliefs. Specifically, she believes marriage should be reserved for unions between one man and one woman.

In 2016, Smith sued Colorado in the U.S. District Court for the District of Colorado to avoid being compelled by the state. The district court ruled against Smith in 2019. She appealed to the U.S. Court of Appeals for the Tenth Circuit, which favored the state in a 2–1 decision. Smith then petitioned for a writ of certiorari, which the Supreme Court accepted in February 2022.

The main legal issue is how the Colorado Anti-Discrimination Act (CADA) treats the Free Speech Clause of the First Amendment. The question is whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.

The Colorado Anti-Discrimination Act (CADA) prohibits all “public accommodations” from denying any customer the full and equal enjoyment of their goods and services based on characteristics such as race, creed, disability, sexual orientation, or other statutorily enumerated traits.

Additionally, the Free Speech Clause of the First Amendment safeguards the freedom to think and speak according to one’s beliefs. As established in Boy Scouts of America v. Dale, this freedom is fundamental and protects individuals’ rights to express themselves authentically. Freedom of speech is considered an inalienable right, essential for the discovery and dissemination of political truths, as emphasized in the case Whitney v. California.

The Supreme Court decided 6-3 that the designer can refuse to offer her designs to same-sex couples, protected by the First Amendment.

Majority have supported their stance by referencing several cases, including Hurley, Dale, and Barnette. In these cases, the Majority ruled that government actions compelling speech violated the First Amendment when they attempted to force individuals to endorse messages with which they disagreed. Consistent with the First Amendment, the principle upheld is one of tolerance, not coercion. The First Amendment envisions the United States as a diverse and vibrant society where individuals are free to think and express themselves as they choose, rather than conforming to government dictates. Colorado’s actions cannot contradict this fundamental promise guaranteed by the First Amendment.

Majority also emphasizes that the freedom to think independently and express those thoughts freely is one of the most cherished liberties, essential for maintaining the strength of the Republic. Adhering to the Constitution’s dedication to freedom of speech means individuals will inevitably encounter ideas they find unappealing, misguided, or even hurtful, as established in Hurley. 

The dissenting judges cited cases like FAIR and Runyon to support their argument. They consider the Accommodation Clause of CADA a legitimate regulation of conduct. Public accommodations laws, including the Accommodation Clause, don’t target speech or discriminate based on content, as affirmed in Hurley. They focus on preventing discrimination in providing goods, privileges, and services. The State clarifies that CADA applies only to refusals based on an individual’s status, ensuring equal access to services. Colorado doesn’t compel the company to convey the state’s message or restrict its expression. The company must provide services without discrimination based on customers’ characteristics. Therefore, any impact on the company’s speech is considered incidental to the state’s content-neutral regulation. This means the petitioners’ freedom of speech isn’t significantly restricted, and they can still advocate against same-sex marriage, as upheld in FAIR.

Discrimination has been a longstanding issue in society, with laws historically criminalizing same-sex relationships and excluding individuals from various sectors. Efforts to combat discrimination have been made through legislation such as the federal Civil Rights Act of 1964 and the Americans with Disabilities Act of 1990, along with similar state and local laws.

Public accommodations laws have evolved to include a wider range of goods and services, from inns and carriers to restaurants, bars, theaters, and more. These laws ensure that all businesses serving the public do so without unjust discrimination.

Despite progress, some businesses have sought exemptions from these laws, often claiming rights to discriminate based on freedom of expression and association. However, courts have consistently rejected these claims, affirming the importance of anti-discrimination laws.

In 303 Creative LLC v. Elenis, the Supreme Court departed from this established line of reasoning. It will be interesting to observe how this ruling might impact similar cases in the future. While fundamental rights are undeniably important and deserve consideration, so too are principles of non-discrimination and equal access to services, which hold significant weight in contemporary society. Therefore, the decision may come as somewhat surprising.  It’s also crucial to consider the freedom of speech and expression, which are fundamental rights in any society. These rights ensure that individuals can articulate their values and beliefs without fear of censorship or coercion. Upholding these freedoms is essential for fostering a diverse and inclusive society where differing viewpoints can be openly discussed and respected. Therefore, while balancing the protection of these rights with principles of non-discrimination and equal access to services, it’s vital to recognize and uphold the importance of freedom of speech in shaping our collective discourse Simultaneously, it’s vital to uphold the principle that everyone has the right to access all services without facing discrimination. Likewise, individuals should be able to provide services to everyone, irrespective of their personal opinions or beliefs. 

Looking ahead, the future outlook remains uncertain. While this decision represents a departure from past interpretations, it is unclear whether it will set a new precedent for future cases involving conflicts between anti-discrimination laws and freedom of speech or expression.

Team L. M. S. L. A (303 Creative, Case Genetics)

On June 4, 2018, the U.S. Supreme Court reversed in a 7-2 decision the case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 U.S. (later Masterpiece). The fundamental legal question in the case was whether Colorado’s public accommodations law, which would compel a cake maker to create a wedding cake for a same-sex couple despite his religious objections, violated the Free Speech or Free Exercise Clauses of the First Amendment. The case was closely watched and analyzed during 2018, garnering significant attention from the media and different advocacy groups. However, to many the Court’s narrow decision was a disappointment leaving the actual key legal issue unresolved (American Bar Association). Nevertheless, the case sparked important discussion about balancing the protection of religious beliefs with the prevention of discrimination against protected persons. It is crucial to take a closer look at what the Supreme Court actually had to say in its ruling, especially when it comes to the 303 creative case. 

Throughout its history, Colorado has prohibited discrimination in places of public accommodation. The Colorado Anti-Discrimination Act (later CADA) today continuing this tradition to include protection against discrimination based on sexual orientation. According to CADA it is discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of sexual orientation the full and equal enjoyment of goods and services among other things in a place of public accommodation. Additionally, CADA establishes a layered administrative system for addressing discrimination claims in Colorado, with the Colorado Civil Rights Commission (later Commission) playing a major role. The Commission ultimately decides whether a violation of CADA has occurred.

In 2012, a same-sex couple visited Masterpiece Cakeshop, a bakery in Colorado, to inquire about a wedding cake for their upcoming wedding. The shop owner, Phillips, a devout Christian, informed the couple that he would not create a cake for their wedding due to his religious beliefs and opposition to same-sex marriages. Subsequently, the couple filed a charge alleging discrimination based on sexual orientation in violation of CADA. The Commission determined that Phillips had violated CADA and ruled in favor of the couple. The ruling was later affirmed by the Colorado Court of Appeals. Before the Supreme Court, Phillips raised two constitutional claims: First, that enforcing CADA to compel him to make a cake for the same-sex couple would violate his First Amendment right to free speech, as it would force him to express a message he disagreed with. Second, he argued that being required to make the cake would violate his right to the free exercise of religion, also protected by the First Amendment. These claims were rejected both administratively and by the Court of Appeal. During the Commission hearing, some members expressed skepticism about the sincerity of Phillips’ religious beliefs.

The fundamental legal question of the case remained unresolved, as mentioned above, due to proceedings in the Commission. The Court held that the Commission’s conduct in evaluating Phillips’ reasons for declining to make the wedding cake violated the Free Exercise Clause. Therefore, the Commission’s decision had to be overturned. The Court couldn’t overlook the statements and found them clearly indicating bias against religion. The Court emphasized the importance of ensuring fair and impartial adjudication in cases involving claims of freedom and discrimination. The Court concluded that the outcome of similar cases like this in other circumstances must await further elaboration in the courts.

The Supreme Court raises challenging questions about balancing two key principles in Masterpiece. The first concerns the government’s role in protecting the rights of gay individuals from discrimination when seeking goods or services. The second principle involves upholding the fundamental freedoms under the First Amendment, including freedom of speech and free exercise of religion. A major issue in the case is a disagreement over the extent of Phillips’ refusal to provide service. Refusing to create a custom cake celebrating a marriage differs from refusing to sell any cake at all. These nuances are crucial in determining whether a baker’s creation is entitled to protection under the law. Additionally, they make the task of drawing an analogy between Masterpiece and 303 creative a hard one.

In the majority opinion, the Court states that while religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law citing the Hurley case. The Court states that while refusing to create a cake with specific message might be protected as an exercise of free speech, refusing to provide a service to someone based on their identity could be viewed as discriminatory. The Court held in Masterpiece that Phillips’ conduct was not expressive and thus not protected speech. However, Justice Thomas argued in his concurring opinion that Phillips’ creation of custom wedding cakes is expressive and protected speech. According to Thomas, compelling him to make the cake violates his First Amendment rights. Conversely, Justice Ginsburg’s dissenting opinion reiterated the majority’s stance as it would be inconsistent with First Amendment precedents. Ginsburg emphasized that for conduct to be protected expression, it must be reasonably understood as communicative, a point also noted by Justice Thomas in his concurrence, albeit with a different outcome. Ginsburg strongly disagreed with the Court’s decision that the same-sex couple should lose the case. I believe one of the main differences between 303 creative case and Masterpiece lies in whether the actions of the petitioners constitute expressive conduct and therefore qualify as protected speech with otherwise sharing similar facts. In 303 creative the question of whether the conduct constituted protected speech was more apparent.

It seems like this case, along with the 303 Creative case and the others, demonstrates that the balance between LGBTQIA+ rights and religious rights has been a long-standing debate in the United States, and unfortunately remains a significant issue in contemporary society. Justice Thomas stated in his concurring opinion in Masterpiece that he warned the Court in Obergefell v. Hodges, 576 U.S 644 (2015), (marriage equality), that the Court’s decision would inevitably come into conflict with religious liberty. He also stated that this conflict has already emerged. And sadly, indeed it has.

Team L. M. S. L. A (303 Creative, Case Genetics)

In 2006 in Rumsfeld v Forum for Academic and Institutional Rights, Inc., 547 U.S. (later FAIR), The Court ruled that the Solomon Amendment, which allowed withholding federal funds from universities if they restricted the access of military recruiters on campus, was not a violation of the First Amendment freedoms of speech and association. In this text, I will go through the facts and main principles established in the FAIR case. I will also look into how it was applied in 303 Creative LLC v Elenis, as the majority and the dissenting opinion took very different stands in whether to distinguish or not from FAIR and what can be seen as compelled speech.

Forum for Academic and Institutional Rights (FAIR) is an association of law schools which objected the military’s discriminative ”Don’t Ask, Don’t Tell” policy and didn’t want to give military recruiters access to their campuses. The policy, which was in effect until 2011, meant that non-heterosexual people could only serve in the military if they were not open about their identity. The congress did not accept the law schools’ view and passed the Solomon Amendment. It required the law schools which received state funding to give military recruiters the same access as any other recruiters. FAIR argued that forced inclusion and equal access of military recruiters was a violation of it’s members freedoms of speech and association.

The main question in the case was whether allowing military recruiters to the campuses was compelled speech or not. In their unanimous opinion, The Court gave strong arguments as for why there was no violation of freedom of speech or association. First, it stated that no speech was required by the Solomon Amendment from the law schools. Giving military recruiters the same possibilities as other employer recruiters is about conduct, not speech. The Solomon Amendment compels the schools that e.g. send emails for other recruiters to do the same for military recruiters. In The Court’s opinion, doing the same thing for all recruiters is far from cases such as West Virginia Bd. of Ed. v. Barnette, in which students were forced to pledge allegiance to the flag. 

Second, in FAIR the schools’ own message was not affected by another entity’s or individual’s speech, as in e.g. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. The schools did not have to imply they agree in any way with military recruiters’ speech, and they were free to speak what they wanted about military’s recruitment policies. The Court also noted that law school recruiting services are not expressive conduct such as e.g. a parade is in Hurley. Finally, the Solomon Amendment was not seen as a violation to the law schools’ freedom of association. Law schools had to interact with military recruiters, but the recruiters were not a part of the school or unwanted members such as in Boy Scouts of America v. Dale. 

So, is it possible to draw an analogy between FAIR and 303 Creative? The majority opinion of 303 Creative distinguished these two cases, claiming 303 Creative was about speech, while the dissenting opinion viewed Ms. Smith’s business as conduct. In the dissenting opinion, Sotomayor analogizes 303 Creative with FAIR, where it was confirmed that Congress can, for example, prohibit employers from discriminating in hiring on the basis of race. Being forced to remove a sign reading “White Applicants Only” does not mean an employer’s speech is regulated. It is about conduct.

As we can see from FAIR, conduct may involve some speech, such as aiding a recruiter’s message with sending emails and putting out flyers. The Solomon Amendment and CADA in 303 Creative were both regulating conduct. They didn’t require anyone to change their view or their “own message”. What they did require was equal treatment and equal access to services. These laws were not about dictating the content of speech at all. Universities’ or companies’ speech was only “compelled” if, and to the extent, they offered such speech to other recruiters or customers. If a university offers recruiting services which involve sending emails with certain speech to some recruiters, it should do the same for military recruiters as well. If a company offers a service which contains certain speech, such as biblical quotes, it should offer it to everyone. The majority opinion in 303 Creative seems to completely skip this principle.

In conclusion, it seems like a worrying step backwards when a company is given a constitutional right to discriminate and refuse its services, which are open to the public, from a member of LGBTQIA+. What FAIR established seems to be completely misunderstood or, most likely, ignored in the majority opinion of 303 Creative.

Team L. M. S. L. A (303 Creative, Case Genetics)

Last year, in June 2023, the United States Supreme Court decided the case of 303 Creative LLC v. Elenis by reversing the lower courts’ decisions and affirming the constitutional role of the First Amendment and its right to free speech. The Court applied the case Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. from the year 1995 as one of the predominant precedents in the case, which can be rapidly detected from the Court’s majority opinion delivered by Justice Gorsuch. The Rehnquist court that ruled in Hurley was also more conservative than its predecessor, the Burger court, just like the current Court compared to its predecessor. A strong sense of conservative morals and objectives binds the two courts and these two cases together, forming an interesting ensemble that highlights the First Amendment’s fundamental status today and almost thirty years ago. 

In the following chapters I will introduce and present an overview of the Hurley case before going into the details of the decision that can also be found as integral parts of the case of 303 Creative. By exploring the Hurley case, one will hopefully get an in-depth view of why the current Court ended up reversing the case of 303 Creative last summer and how the law has evolved or not. 

In the case, the city of Boston authorized the petitioner, the South Boston Allied Veterans Council to organize a parade in the city to celebrate St. Patrick’s Day in 1993. The Council as the organizer refused to admit the Irish American Gay, Lesbian, and Bisexual Group of Boston (GLIB) to participate in the parade. GLIB’s mission was to express their heritage and sexual orientation by parading. The state court ordered the Council to include GLIB in the parade by invoking state law, namely the public accommodations law. The Council proceeded to claim that the state court’s decision to force the Council to allow GLIB’s members to parade as a participating group expressing their message in the privately organized event violated the Council’s First Amendment right. The Supreme Court faced the task to provide an answer to the following question: Can a state require private citizens who organize a parade to include among the marchers a group imparting a message the organizers do not wish to convey?

The Court was unanimous in its decision and held that the state court’s ruling violates the First Amendment. The core issue culminated in how the public accommodations law and the First Amendment can or could co-exist in a world where it often seems almost impossible to have it all. Inclusivity without discrimination and everyone’s right to think and express oneself seems like a difficult equation to solve. The Court managed to find common ground within its composition and was able to clarify the law by examining the previous precedents and implications in its opinion.

How was the at first glance seemingly discriminatory decision then justified? Before analyzing the statues in question, I will bring up some details from the case. To put it simply, the following definition of a parade was given by the Court: parades are a form of expression, not just motion and marching. To be able to apply the First Amendment right to a parade, the parade needs to be expressive in its nature. As the state public accommodations law is not applicable to privately organized events that have no state action involved, the Court needed to also establish whether the parade counts as a private or a public form of expression. As the Council was a private, unincorporated association that applied for the permit from the city of Boston, the Court saw no ties to the state and took the stance that the question revolved around a privately organized, expressive parade. 

The state statue in question, Mass. gen. Laws §272:98 (1992), is “a piece of protective legislation that announces no purpose beyond the object of both expressed and apparent in its provisions, which is to prevent any denial of access to (or discriminatory treatment in) public accommodations on proscribed grounds, including sexual orientation”, as stated in the Court’s opinion. When the law in question is applied to expressive activity, in the way of how it was applied in this case, the objective is to demand the petitioners to alter their expression to the extent the beneficiaries of the law choose to modify it with their own messages. This robs the petitioners of their right of free speech as “one who chooses to speak may also decide what not to say”. The Council disclaimed all intentions to exclude homosexuals from the parade as individual members of GLIB were not banned from participating in the parade individually or as members of other groups. The Council did not want the members to parade as a group waiving a flag and expressing a message the organizers did not wish to convey. The conservative outcome favored the petitioners as the “use of the State’s power violates the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message”. 

Because the general rule established in McIntyre v. Ohio Elections Comm’n and Riley v. National Federation of Blind of N.C., Inc. is as simple as – the speakers right to tailor the speech applies to not only expressions of value, opinion, or endorsement, but equally to statements of fact the speaker would rather avoid – the Court had an easier route to arrive in a unanimous decision. As the parade was purely a private event and its nature was expressive, the constitutional right weighed more as the application of the state law would have been problematic due to the lack of state action. 

The Supreme Court referred to Hurley in 303 Creative last summer, when it stated in the very last section of the opinion that “all of us will encounter ideas we consider — misguided, or even hurtful” and decided to reverse. Even if the First Amendment right entails difficulties understanding or accepting all views within the people, the freedom of speech is a right too fundamental to be played with. Constitutional and individual rights are protected against government interference. It is no wonder why the current Court and its conservatives found Hurley to be an ideal precedent in the case of 303 Creative. Everyone has the right to think, out loud or not. The real challenge is to navigate the space where views negatively affect others and lead to unwanted outcomes. As seen in 303 Creative, one may need to ask the courts already in advance if they can act in a certain manner and in accordance with the law. From the spectators’ side it is not easy to even guess what is right and what is wrong when there are two weighty interests at stake simultaneously. After 303 Creative’s ruling, we will have to wait and see if the trend, meaning the law, stays the same or will it evolve slowly to something else – who knows? 

Team L. M. S. L. A (303 Creative, Case Genetics)