Sunday, October 2, 2022
SCOTUS will begin hearing oral arguments for its next term tomorrow. One of the cases of particular interest to BLPB readers will be 303 Creative LLC v. Elenis. As noted on SCOTUSblog (here), the issue in 303 Creative 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 case promises to resolve important issues left open by the Masterpiece Cakeshop decision. For whatever it may be worth, I predict that the following excerpt from the 10th Circuit's decision below will be critical to the Supreme Court's analysis -- with SCOTUS rejecting the 10th Circuit's conclusions.
Excepting Appellants from the Accommodation Clause would necessarily relegate LGBT consumers to an inferior market because Appellants’ unique services are, by definition, unavailable elsewhere.... To be sure, LGBT consumers may be able to obtain wedding-website design services from other businesses; yet, LGBT consumers will never be able to obtain wedding-related services of the same quality and nature as those that Appellants offer. Thus, there are no less intrusive means of providing equal access to those types of services.... This case does not present a competitive market. Rather, due to the unique nature of Appellants’ services, this case is more similar to a monopoly. The product at issue is not merely “custom-made wedding websites,” but rather “custom-made wedding websites of the same quality and nature as those made by Appellants.” In that market, only Appellants exist. And, as amici apparently agree, monopolies present unique anti-discrimination concerns. See *1181 Br. of Law and Economics Scholars at 9 (["As Thomas Jefferson wrote, 'the first principle of association' is 'the guarantee to every one of a free exercise of his industry, and the fruits acquired by it.'"] “The only exception to this principle is a monopoly situation, in which consumers are faced with a sole supplier who could decide for all sorts of reasons, including invidious motives, to refuse to deal with a group of potential consumers.”).
303 Creative LLC v. Elenis, 6 F.4th 1160, 1180–81 (10th Cir. 2021), cert. granted in part, 212 L. Ed. 2d 6, 142 S. Ct. 1106 (2022).