Category: SCOTUS 2026

The U.S. Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen (2022) is one of the most significant constitutional rulings in recent decades. It does not concern firearms alone, but also how the Constitution is interpreted more broadly. Originalism was key principle in reasoning of Bruen. But, was one important perspective overlooked as a result of this interpretive approach and the principle of originalism?

In the Bruen case the main question was that does the New York’s requirement of “proper cause” violate the Second Amendment which guarantees the right to keep and bear arms. This question originates from the law of the State of New York that makes it a crime to possess a firearm without a license, whether inside or outside the home. An individual who wants to carry a firearm outside his home may obtain an unrestricted license to “have and carry” a concealed “pistol or revolver” if he can prove that “proper cause exists” for doing so. 

In the Bruen case the judges refer strongly to originalism. Originalism is a theory of interpreting legal texts holding that a text in law, especially the U.S. Constitution, should be interpreted as it was understood at the time of its adoption. In other words, the Constitution is interpreted according to its original public meaning at the time it was adopted. This view is the opposite of the “living constitutionalism” theory, which asserts that the Constitution is living and can evolve with society, and that the meaning of constitutional texts changes over time.

Originalism is particularly evident in Bruen case. In its earlier decisions, the Court weighed firearm regulations against modern public safety interests on the basis of statistical evidence. In Bruen case, however, the Court abandoned this practice and replaced it with a new test. Under this new test, the only questions asked were whether the conduct at issue falls within the scope of the Constitution (in this case, public carry of firearms) and, if so, whether the restriction has a historical analogue in regulation from the time of the founding of the United States.

The Court thus concluded that if no historical analogue exists, the law is unconstitutional—regardless of how reasonable or beneficial it may appear in the present day. This is pure originalism: the content of fundamental rights does not change along with societal conditions; instead, their boundaries must be sought in history. But how this reflects to guns and what they are? 

It’s interesting that in Bruen case the Court didn’t discuss the concept of gun or what it meant in the time of 2^ndAmendment. It is obvious that in 1790 firearms were entirely different from those of the modern era. While the purpose of weapons was even then to inflict harm, in 1790 firearms were inefficient and slow to use. At that time, there could have been no understanding of how dangerous weapons could be in the future; there was no knowledge of automatic weapons or firearms capable of sustained rapid fire. Moreover, the concept of a ‘weapon’ also encompasses nuclear weapons and other weapons of mass destruction, even though in this context this remains a purely theoretical perspective.

The core of originalism is to interpret the law as it can be understood in its own time. This should also include the assumptions and premises on which the law was written. If, in the 1790s, it had been known how destructive weapons would become in the future and how dramatically the populations of large cities would grow, would such a fundamental right have been enacted? In interpreting Bruen case, the Court should at the very least have considered what the concept of a ‘weapon’ meant at the time of enactment and whether the right to bear arms truly extends to all types of weapons.

This perspective was addressed indirectly in the dissenting opinion, which noted that numerous studies and public safety statistics support stricter regulation of firearms. The Court, however, disregarded these considerations. In Bruen case, the argument relied heavily on originalism, but without examining the concept of a ‘weapon’ itself. As a result, the deepest core of originalism may have been overlooked: what the law was intended to mean and to achieve at the time of its enactment.

Team Trump & Bruen

The 2024 Supreme Court case Trump v. United States marked the first time in the history of the United States a former president has been criminally prosecuted for actions committed during his presidency. At the time former President Donald J. Trump was facing an indictment over his alleged actions around the conspiracy to overturn the 2020 Presidential election. He was accused of, inter alia, spreading false claims of election fraud and obstructing the counting and certification of the election results. Instead of denying the accusations, however, Trump’s legal team opted to go for gold, and argued for absolute immunity regarding all of his alleged conduct.

In a surprising turn of events, the Supreme Court concurred. Drawing from sources such as the Federalist Papers and earlier precedent on presidential immunity, the Supreme Court, in a 6–3 fashion, decided to extend the scope of presidential immunity to dimensions never seen before. Whereas before the president would only be immune to civil lawsuits, the Trump decision expanded the presidential immunity to also cover criminal prosecutions. But how did we get here, and what consequences can a decision like this have? To answer these questions, we need to rewind time a bit.

In January of 1970, a man named Arthur Ernest Fitzgerald was fired from his job as a management analyst for the United States Air Force as a result of departmental reorganization. He then proceeded to sue the United States government for damages, alleging that his dismissal was an act of retaliation, and that it only happened due to an unfavourable testimony he gave about a particular airplane design. The case eventually made its way up to the Supreme Court.

Therefore, in the 1982 decision Nixon v. Fitzgerald, the Supreme Court had to assess whether a former president could be held civilly liable for actions taken while in office. Five out of the nine Justices thought the opposite, and the Court’s holding was that the president is entitled to absolute immunity in civil cases, when the damages are a result of an official act. The Court’s reasoning was that exposing presidents to the possibility of civil litigation would hinder their ability to make decisions and perform their duties as the chief executive.

The argument seems sensible. However, the Court emphasized the distinction between civil lawsuits and criminal cases, noting that criminal prosecutions are inherently different and have other safeguards in place, such as prosecutorial discretion and higher burden of proof. In regard to limiting the president’s power, the Court’s view was that accountability would be achieved through democratic and political means, by having fair elections and impeaching potentially corrupt politicians.

That brings us back to 2024. To summarise the contents of Trump v. United States, the Court effectively divides all actions the President could conceivably take into core constitutional acts, official acts and unofficial acts. The Court then assigns immunity based on the authority of the President to conduct certain type of act – core and official acts have either conclusive or presumptive immunity, while unofficial acts receive none at all. However, the Court does little to give concrete guidance on how this division of acts ought to happen. This leads to frightening possibilities where the president engages in illegal acts under the guise of core acts or official conduct, but the actions cannot be properly investigated because the president is either fully or presumptively immune. 

President Trump himself was indicted for conspiring to overturn the results of the 2020 Presidential election – who is to say it will not be attempted again in order to affect the results of the 2026 midterm elections, but this time under a shiny shield of immunity? It is evident that he has no moral qualms about pushing the boundaries of legal theories, having posted statements such as “He who saves his Country does not violate any Law” on social media platforms. Moreover, the safeguards of having fair elections that were assumed in Nixon v. Fitzgerald are brought into question, when the president himself faced indictments attempting to bypass said safeguards.

Additionally, what the case does not address, is the general public interest in seeing those who commit criminal acts prosecuted. Rule of law applying equally to everyone is one of the core democratic principles. Trump v. United States effectively raises the president above the law, when nobody should have that level of authority. Because of this, and the fact that the nation was formed as a response to having a king, the decision of the Court is highly antithetical to the founding principles of the nation.

There is no telling where this decision will take the country. It continues the trend of consolidating more and more power to the executive branch. It opens the door for bad actors to abuse the powers of presidency for personal gain. And above all, it raises the president above the law, effectively bestowing powers of a sovereign king to the president. The ending remarks of Justice Sotomayor’s dissenting opinion are in fact quite telling:

“With fear for our democracy, I dissent.”

Team Trump & Bruen

Dobbs v. Jackson Women’s Health Organization is often characterized as one of the major landmark Supreme Court decisions that have taken place after the composition of the Court became generally more conservative in the late 2010s. The Dobbs decision effectively ruled that abortion isn’t a liberty protected by the Constitution. Furthermore, it also overruled another previous landmark decision, Roe v. Wade, which on the contrary protected abortion as a constitutional right up to the point of fetal viability, also known as the point after which the fetus could survive outside the womb. Additionally, Dobbs also overruled Planned Parenthood v. Casey, which can, for the purposes of this text, be simplified to have upheld Roe.

The main point of this text is to examine the reasoning the Court used in its majority opinion. It is important to note that this is merely an overview and primarily a summary of the entire 79-page opinion written by Justice Alito.

The Dobbs case was originally about whether the State of Mississippi could legally prohibit abortion after 15 weeks of pregnancy or not, which is several weeks before the point at which the fetus is considered viable as determined in Roe. It is then stated that the State argues that the Court should reconsider and overrule Roe altogether and, on the other hand, the respondents argue that allowing Mississippi to prohibit abortion “would be no different than overruling Casey and Roe entirely” (Brief for Respondents), p. 43. The Court then assesses that neither side wish for “half-measures” and that the Court must within this decision either overrule or uphold Roe. 

However, it is noteworthy that Justice Roberts points out in his concurrence that the States original request was for the Court to “clarify whether abortion prohibitions before viability are always unconstitutional” (Roberts, C.J., concurring), p. 5, and that it only later changed its course by arguing the need to overrule Roe. Justice Roberts further argues that the Court should “leave for another day whether to reject any right to an abortion at all” (Roberts, C.J., concurring), p. 7. On the other hand, the Court argues in its majority opinion that the question regarding Roe would either way rise in the near future, explaining that the states would try to argue for further lowering the pregnancy time at which point onwards abortions are illegal.

Having established fairly early on that it needs to revisit and possibly overrule Roe, the Court factors in the stare decisis principle, which requires the Court to adhere to the precedent set by previous judgements when making its decisions. It is quick to point out that stare decisis isn’t absolute and even set precedent can be overruled. The Court then lists other occasions when it has overruled precedents throughout history, most notably Brown v. Board of Education, which overruled the precedent set by Plessy v. Ferguson.

It should again be pointed out that the purpose of this text isn’t to further investigate the overall bases of overruling precedent and thus how to deviate from the stare decisis principle. However, it is noteworthy to point out that the Court goes to great lengths to show its general regard to the principle while also explaining the ways in which precedent can be overruled in the case of Roe in particular. The Courts reasoning rests on four key points: poor reasoning, error of the Court in deciding the case, poor workability, and negative effect to other areas of the law and the society as a whole. And while examining Roe, the Court goes on to strongly criticize the whole decision in its entirety, which in turn raises the question on the contradiction with the Court emphasizing high regard to its previous decisions and set precedent.

The biggest focus of the Courts critique on Roe is aimed at its constitutional and historical backing or rather lack of. The Court even states that Roe broke an “overwhelming consensus” within the U.S. to regard abortion as illegal.

In addition to the originalistic method into assessing what was the attitude towards abortion throughout the common law history, the focal point of the Courts reasoning is that it doesn’t have a constitutional right to decide upon an issue like abortion. It argues on many occasions throughout its reasoning that abortion is a moral dispute in which both sides can be in good conscience arguing for their view on the issue. Therefore, the Court decides that the people themselves and their elected representatives within each state should be able to decide on it without federal legislations interference.

The main differences that the Court makes between abortion and other more recently recognized rights, such as same-sex marriage, is that abortion concerns “potential life”. A term, which in itself is somewhat controversial, meaning that it isn’t all that simple to decide from which point onward can “potential life” be considered to have begun from. And while it might be rather easy to argue that rights, such as same-sex marriage, don’t even remotely threaten any form of life, things like contraception that prevent the zygote from attaching to the wall of the uterus, create a whole new problem to consider when talking about one’s rights and liberties.

However, the Court does emphasize “that our decision concerns the constitutional right to abortion and no other right” and that this opinion should not be used to “cast doubt on other precedents that do not concern abortion”.

The Court also goes on to recognize that its decision is likely to receive a lot of public backlash, but it stresses that it cannot let public opinion affect its work, which in this case is doing legal interpretation on what is and what isn’t a constitutionally protected right. Furthermore, the Court even notes that its decision is not made under any sort of political pressure nor does it reflect the personal values of its justices.

In conclusion, it is still difficult to look at the Courts reasoning and wholeheartedly believe that no personal values of the justices played any role in the making of its decision. Since, when dealing with things that can be regarded as liberties, even not taking a stance is a stance.  And only time will tell if this does in fact open the door for other recently recognized rights to be questioned in front of the Supreme Court. Because even though the Court specifically said that this decision can’t directly be used as precedent against overruling other rights, it certainly put the possibility of doing so out there and gave everyone at the very least a reason to believe that the Courts stance might be more conservative than in a long time.

The Jackson 2

The Supreme Court of United States delivered its historic ruling in Dobbs v. Jackson Women’s Health Organization on June 24, 2022, overturning the long-standing precedents of Roe v. Wade and Planned Parenthood v. Casey. The majority opinion, written by Justice Samuel Alito, declared that the Constitution does not protect a right to abortion since abortion is neither explicitly mentioned in the Constitution nor deeply rooted in the nation’s history and tradition. This decision marked a dramatic shift in American legal tradition as it ended nearly 50 years of federal protection for abortion rights. Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan authored a joint dissent defending constitutional liberty, equality, and the rule of law. Their dissent is not only a profound statement about the role of the Constitution in protecting individual rights, but also a warning that other rights are also at risk of being overturned.

The dissenting justices challenge the majority’s central argument: that the Fourteenth Amendment’s guarantee of liberty must be understood as its ratifiers did in 1868. According to the dissent, this originalist argument does not hold as the whole Constitution is drafted by men only and during the time women were not recognized as equal citizens. To interpret the Constitution solely through the perspectives of 1868, the dissent argues, means the exclusion of women from the promise of equal citizenship. The dissent also states that the Founding Fathers intended the Constitution as a basis for ongoing progress and adaptation, not a rigid document frozen in time. The conflict between living constitutionalism and originalism is evident.

The dissent emphasizes that the Supreme Court has repeatedly recognized new rights, such as the right to interracial marriage, the right to contraception, and the right to same-sex marriage based on the Fourteenth Amendment, even though those rights were not recognized in 1868. The dissent warns that the majority’s originalist argumentation threatens not only abortion but also the other hard-won rights. Although the majority grants that Dobbs does not affect the aforementioned freedoms, another case in the future might do just that. Justice Clarence Thomas’s concurrence, which explicitly calls for the Court to reconsider and overturn Griswold v. Connecticut, Lawrence v. Texas, and Obergefell v. Hodges, underlines the dissent’s fears. 

The majority opinion and justice Brett Kavanaugh’s concurrence claim that by returning the issue of abortion to the states, the Court is taking a “neutral” position. The dissent forcefully rejects this view. The dissenting justices argue that true neutrality would mean protecting the right to abortion from state interference, just as the Court protects other fundamental rights. Instead, the Court has stripped women of a right they have depended on for nearly fifty years, leaving them at the mercy of state legislatures. Correspondingly, the Court took a very different stance when dealing with gun rights and the Second Amendment in District of Columbia v. Heller and New York State Rifle & Pistol Association Inc. v. Bruen. In the latter case, for instance, the Court declared that States have no power to forbid people from carrying guns in public places. The dissenting justices ask whether Justice Kavanaugh would “say that the Court is being ‘scrupulously neutral’ if it allowed New York and California to ban all the guns they want?” 

The dissent highlights the disproportionate impact of this decision on women without financial means. Wealthy women may still access abortion by traveling to states where it remains legal, but poor women often do not have the means to do that. The dissent notes that states have already passed laws banning abortion even in cases of rape or incest. Thus, the majority’s decision will force women into dangerous and life-altering situations, undermining their autonomy and equality. 

The dissenting justices warn that the majority’s decision is not just about abortion but about the very nature of constitutional rights. By rejecting the originalist idea that rights must be frozen in the past, the dissent defends the principles of progress and equality. Finally, the dissenting justices end their opinion with the following sentence: “With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent.” 

The Jackson 2

In 303 Creative v. Elenis the constitution of the U.S. engaged in its own skirmish of sorts against itself with the first amendment striking against the fourteenth amendment. I will analyze the Brief of 303 Creative in the U.S. Supreme Court case 303 Creative LLC. vs Aubrey Elenis et al. (docket number 21-476), and examine the arguments therein.

The arguments presented in the brief are as follows; 1) CADA violates the First Amendment by compelling artists to speak against their convictions, 2) The Accommodation Clause compels speech based on content and viewpoint, 3).The Publication Clause restricts artists’ speech based on content and viewpoint and 4) As applied to artists like Smith, CADA violates the First Amendment and cannot satisfy strict scrutiny

The first argument of Lorie Smith and 303 creative as a result revolves around her first amendment protected right to free speech and how the legislation in question, CADA, would lead her to speech unbecoming of her beliefs. Being a devout Christian, Lorie Smith feels that the government shall not force her to spread a message that would violate her beliefs and that has been a principle of the Court for all of history, for example in Rumsfeld v. Forum for Acad. & Institutional Rts. In the brief of 303 creative it is argued that Smith does not choose her clients based on their personal qualities but rather the message that they ask her to convey and thus her refusal is not a form of discrimination and in fact just her holding fast to her beliefs and her faith.

Smith sees 303 creative not as a means to make money but as a platform to create and spread the message of her faith. Drawing from a previous case of the Court, an unanimous one at that, Smith invokes Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. in which the Court deemed that forcing a public demonstration to convey messages opposing the demonstrators’ beliefs was unconstitutional. Smith’s argument in short is that 303 creative serves the same purpose for her as the demonstrations served for the veterans in Hurley. As determined in Hurley, when a law makes speech itself a public accommodation that same law could force a person to go against their beliefs and thus that law becomes unconstitutional by that fact alone. The same principle can be seen in Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett.

The second argument covers the so-called accommodation clause of CADA that is used by the state of Colorado to enforce their political and faith-based beliefs in ways that are both inappropriate and unconstitutional. The brief quotes the Tenth Circuit’s statement drawing once again from Hurley: “the law authorizes the government to take sides in an important cultural, political, and religious discussion – all in the name of “producing a society free of … biases,” Hurley, 515 U.S. at 578.

The most basic foundation of the first amendment protected by such cases as Texas v. Johnson and Turner Broad. Sys., Inc. v. FCC is the idea that speech shall not be prohibited simply because the government disagrees and the brief is of the opinion that this is exactly what CADA allows Colorado to do. As said in Reed v. Town of Gilbert, content-based speech laws “are presumptively unconstitutional” and when both the content of the speech and the viewpoint of the speaker determine the lawfulness of the message it is in clear violation of the first amendment.

For the third argument the brief dives into the publication clause of CADA with much of the same basis as the second argument had. The publication clause prohibits publishing speech that would directly or indirectly imply that certain services would not be offered to people of certain inclinations or beliefs. Colorado’s use of the publication clause to prohibit Smith’s speech based on that speech being illegal falls apart in opinion of the brief since Smith’s speech was in fact not illegal Pittsburgh Press Co. v. Pittsburgh Comm’n on Hum. Rels.

The fourth and final argument is that for first amendment protected speech to be regulated there must be a compelling government interest to coerce or silence that protected expression which the state of Colorado was not able to show. As said in F.C.C. v. Pacifica Found, the government must remain neutral in areas of idea and thought and that neutrality disappears if that said government silences ideas that it doesn’t approve of. The brief argues that because CADA compels and regulates speech based on content and viewpoint, the law’s application to artists like Smith must at least satisfy strict scrutiny and that it fails immediately on the basis of it not being able to show an actual problem the law would fix Brown, Ibid.

All in all the brief of 303 Creative stands on a strong foundation of legality and builds upon numerous examples of the Court enforcing the first amendment protection that guarantees the legality of Smith’s speech. With a varying and multitudinous base built around former cases and verdicts and the clearly shown idea of the potential misuse of CADA’s clauses, it is no wonder that 303 Creative had the success it had when it was being decided on by the Supreme Court.

Team 303

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

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 19^th and the early 20^th 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

The dissenting opinion in The U.S. Supreme Court case 303 Creative LLC V. Elenis authored by Justice S. Sotomayor and joined by Justices E. Kagan and K.B. Jackson, expresses exceptionally strong opposition to the Court’s ruling. According to Justice Sotomayor it is a historical decision, but in a negative sense. In the case the Court held that the Free Speech Clause of the First Amendment to the U.S. Constitution grants a wedding-website designer who does not believe in same-sex marriages, an exemption from the Colorado Anti-Discrimination Act (CADA). CADA prohibits public accommodations refusing service, among other grounds, on the basis of sexual orientation. In addition, the Court held that the business is permitted to convey to customers a message stating that it will not provide products and services if they are to be used for same-sex marriages. 

According to Sotomayor this decision is the first in the history of the Supreme Court to grant a business offering public accommodations the constitutional right to decline to serve people of a protected class. The opinion of the Court and the dissenting opinion such as their reasonings focus on totally different points. Therefore, it is interesting to observe why Sotomayor views the decision as “a grave error” and why she rejects the view that the First Amendment entitles the business owner to deny their services from same-sex couples.

As is typical in the United States common law system where the reasoning proceeds by analogy, Sotomayor looks for precedents from earlier Supreme Court decisions that govern the case at bar. Sotomayor is of the view that the resolving principle in this case can be found from a Supreme Court case called Rumsfeld v. Forum for Academic and Institutional Rights, Inc., (FAIR). The case concerned whether colleges and universities were required to assist military recruitment under the Solomon Amendment and whether this obligation violated their First Amendment right to expressive association. The Supreme Court unanimously held that the Solomon Amendment regulated conduct, not speech, and therefore did not infringe the schools’ constitutional rights. According to Justice Sotomayor’s reasoning, as applied to 303 Creative, “speech is compelled only if, and to the extent that, the business offers the same speech to other customers”. Because the wedding-website business sells its services to the public, it may not refuse to serve same-sex couples.

Secondly, Sotomayor holds that the case should be evaluated under the “O’Brien standard” which was set forth in United States v. O’Brien rather than strict First Amendment scrutiny. According to Sotomayor, the O’Brien standard applies because the purpose of the law (CADA) is not to suppress speech, but to eliminate discrimination and ensure equal access to the market. Moreover, this objective constitutes a substantial government interest which without applying CADA would be achieved less effectively. Thus, Sotomayor states, the application of CADA is consistent with the Constitution.

We can observe here that at the core of the dissenting opinion’s reasoning is a view that is contrary to the Court’s view: that CADA only regulates conduct, not the content of speech. Sotomayor frames an interesting, concrete example explaining why CADA does not restrict speech: the wedding-website company can sell any products and convey any message they wish, even limiting offerings to sites with “biblical quotations” about marriage. However, it cannot refuse service based on sexual orientation. What she observes here is that the company can lawfully reach its desired customer base by simply making the business unwelcoming to gays and lesbians.

Sotomayor rejects the argument of the majority that the company “serves everyone” but simply does not sell its wedding-websites to gays and lesbians. In her view, the company refuses to serve same-sex couples because of their status, even though the service was otherwise identical in content. This in her view constitutes plain status-based discrimination. Sotomayor also criticizes the business owner’s argument about agreeing to sell other types of websites than wedding websites to same-sex couples. Sotomayor likens this to a “limited menu” approach, the principle of offering status-based limited services, which the Court previously rejected as discriminatory in Katzenbach v. McClung.

Sotomayor admits that CADA would indeed require the company to “create and sell speech” in case the company creates and sells such speech to the public (which in practice can be seen as compelled speech). In justifying why the Free Speech Clause of the First Amendment does not exempt a business from CADA’s regulation Sotomayor refers to a principle confirmed in case FAIR:  “a neutral regulation of conduct imposes an incidental burden on speech”. Here one could observe that the dissenting opinion simultaneously explains why CADA does not restrict free speech, yet ultimately acknowledges that it does, at times, limit free speech – and that this must simply be accepted.

In 303 Creative both the majority and dissenting opinions are of the view that the opposing side relies on cases that should be distinguished as inapplicable. Sotomayor convincingly explains why the decisions relied upon by the majority do not apply: in its reasoning the majority leans on Hurley and Dale, but those cases involved private, nonprofit expressive associations, where the burden on speech was direct. 303 Creative, by contrast, is a commercial, publicly accessible business, to which public accommodations laws have traditionally and constitutionally applied. Furthermore, she emphasizes the fundamental purpose of anti-discrimination legislation: “to ensure the full and equal enjoyment of places of public accommodation without unjust discrimination”. Justice Sotomayor reminds that discrimination has never been protected by the First Amendment before and in this case the reason to exclude arises under the Free Speech Clause. The decision inevitably prompts the question of whether free speech can now be invoked to justify discrimination against any protected group in public accommodations.

Team 303