The Supreme Court of the United States grant of certiorari to review 303 Creative LLC v Elenis, is both puzzling and disturbing. It is puzzling because most first year law students will quickly conclude that the case is not justiciable under the Case or Controversy clause. Justiciability is a set of well-established rules about whether a case can be heard or not (discussed below). And it is disturbing because, despite its lack of justiciability, the Court chose to hear it anyway. That second point suggests that the court bent the rules on justiciability for a reason. But why? The answer might lie here. Justiciability was ignored because some on the court saw 303 Creative as a vehicle to extend first amendment religious rights to a commercial entity so that it could deny services to a customer based on the customer’s sexual orientation.
To bring suit, a case must be justiciable. That is, among other things, plaintiff must have either been harmed or be facing an immediate threat of harm. Further, the alleged harm cannot be speculative, abstract, or hypothetical. This element of justiciability is called standing. Yet that is exactly what this case is about: a speculative, abstract, hypothetical harm that has not yet occurred and is not imminent. If the court eventually decides to rule on the case on its merits, it will, in the writer’s opinion, have given an advisory opinion. But advisory opinions are prohibited under the U.S. Constitution.
The issue in this case is whether applying a Colorado public-accommodation law [CADA] to compel an artist to speak or stay silent violates Free Exercise clause of the First Amendment. CADA is an anti-discrimination law. It guarantees equal access to public accommodations (businesses) regardless of, among other things, sexual orientation.
Plaintiff is a web designer [“artist”] who wants to refuse to build a wedding website [“an expression”] for a same sex couple. Plaintiff’s alleged harm is possible prosecution under CADA for something they have not actually refused to do. Why? Because their web design business does not do wedding websites. It is not their business. But if they did, they contend CADA might compel their speech [artistic expression] unlawfully under the free speech clause.
The problem is that plaintiff is not in the wedding website business, but claims they MAY want to be in the future. Thus, if they ever were to actually refuse a same sex couple’s request for a wedding website, Colorado might prosecute them. Does the harm plaintiff complains of sound speculative, imminent, or hypothetical to you?
If these facts sound familiar, they should. In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court ruled (on very narrow procedural grounds) that CADA commissioners did not approach their hearing on the case with “religious neutrality,” i.e., they were biased against religion. But the Court stopped short of ruling that by forcing the cake maker to design the cake that it would have violated their First Amendment religious rights. Neither, however, did the court rule that Cakeshop had not violated Colorado law.
Given the similarity of the issues in both cases, might the court have shoehorned 303 Creative into their calendar despite its lack of justiciability? The argument in favor of that conclusion is that the Court seems especially anxious to add to their ruling in Masterpiece Cakeshop. By so doing, they might further explore the intersection between First Amendment religious right to refuse service (discriminate) certain persons versus the right of those persons to be treated equally in the marketplace? This time around their ruling may not be limited, narrow,, and procedural, but substantive. If so, religious orientation may soon trump be trumping anti-discrimination laws against sexual orientation and become the law of the land. Consider, however, the slippery slope. If religious freedom can be used as a basis to discriminate against same-sex couples, can it also be used to justify commercial discrimination based on race, other religions, ethnicity, miscegenation, marriage rights, etc?