Monday, October 10, 2022
I'm still planning to keep a low profile on the blog for October, but I wanted to get this post up while I'm thinking about it. For those of you who are planning to attend Loyola Chicago's annual Constitutional Law Colloquium, this is a sneak peek. But also, if you are attending that conference, what are you doing on a contracts blog?
Anyhoo, this is yet another in a series of posts on the interplay between the First Amendment and contracts law in the Supreme Court. We've touched on this topic recently in discussing NetChoice v. Paxton here and here, in discussing the Rosati v. LIRR case here, and in discussing a challenge to Arkansas Act 710 here. A post from earlier this year about SCOTUS's shadow docket opinion in the Navy Seals case, which links to the others can be found here. Holy crap. That's a lot of posts. I think I'm pretty close to a law review article.
I have written one such article, which is the first in a planned series of articles in which I attempt to channel Jamal Greene's How Rights Went Wrong and argue that First Amendment rights are not absolute and that contractual rights and interests should also play a role in adjudication of constitutional disputes. One of Professor Greene's key points is that our jurisprudence elevates certain rights as "fundamental," and courts protect those rights zealously through heightened scrutiny. Other rights, including contracts rights, have been left nearly entirely unprotected since 1937 or thereabouts.
Early in this project, I noticed the oddity of Fulton v. City of Philadelphia, in which the Court ordered the City to continue its contractual relationship with Catholic Social Services (CSS) in violation of its non-discrimination policy, despite CSS's policy of discriminating against same-sex married couples. This term, with 303 Creative v. Elenis, we will come full circle. The Court will have an opportunity to settle an issue that it ducked in Masterpiece Cakeshop; that is, whether a service provider can be compelled by a local ordinance to provide services to all comers, notwithstanding opposition to their LGBTQ+ status.
The case is remarkable on a number of levels. The issue in this case is whether requiring 303 Creative to provide web design for same-sex weddings constitutes impermissible compelled speech in violation of the First Amendment.
First, 303 Creative should not have standing. The record reflects no evidence that 303 Creative has ever created a website for any wedding let alone for a same-sex couple. You might think it shouldn't matter. Perhaps the parties think it shouldn't matter, as Colorado does not seem to have contested standing in the lower courts. But a court engaged in Jamal Greene style rights mediation should care, because the extent to which 303 Creative may be compelled to speak may depend on what the company is asked to do. And that requires an inquiry into the specific facts of the specific case or controversy. Here, we have none.
Assume, for example, that 303 Creative has already created a web design for the marriage of Adam and Eve. Suppose Adam and Steve come along and say, "We really love what you've done for Adam and Eve, can you just add an 'St' in front of Eve and provide us a URL to send to our friends and family?" That might be closer to content curation than to expression, and as far as the Fifth Circuit is concerned, content curation is really conduct rather than speech and is an appropriate target for state regulation.
On the other side, returning to Jamal Greene's rights mediation model, to me, web design is distinguishable from a cake shop. If you are a same-sex couple in a small town, you might not have very many cake shops to choose from. If the best cake shop in town discriminates, that's a genuine hardship. But web design is global. Even if dozens or even hundreds of websites choose not to host same-sex marriage sites, there are plenty of others, and I'm guessing there are some that are niche and 🔥🎉fabulous🎉🔥! Someone out there has a link so that you can book Randy Rainbow as your wedding singer. I'm not sure the harm wrought by 303 Creative's discriminatory purpose is comparable to that caused by Masterpiece Cakeshop's refusal to serve same-sex couples. And so even I might say that dignitary harms could bow to Free Exercise rights (because that's what this really is) in this case. Also, gay couples don't have to and shouldn't want to patronize businesses that hate them, so why fight over a right that nobody would want to exercise except for trolling purposes.
Second, the case is a weak Free Exercise claim masquerading as a Free Speech claim. The case was brought by the same law firm that represented Masterpiece Cakeshop. As 303 Creative's website makes clear, its principal opposes same-sex marriage because of her Christian beliefs: "[W]hile I will serve anyone I am always careful to avoid communicating ideas or messages, or promoting events, products, services, or organizations, that are inconsistent with my religious beliefs." The Supreme Court did not take the Free Exercise claim, which would force a showdown on Employment Division v. Smith for which the Court may not yet be ready. But why bring a tricky Free Exercise claim when it is so easy to win on a free speech claim? Thanks, rights absolutism!
Third, as an amicus brief filed by BU law prof Kent Greenfield in the case argues, 303 Creative has no beliefs and therefore is entitled to no protections. Yes, I know, Hobby Lobby, but that was a statutory case that turned on the definition of "person" in RFRA. This is about rights arising directly under the First Amendment. Under current absolutist doctrine, corporations must have free speech rights, because newspapers have free speech rights. This is the danger of treating what is really a Free Exercise claim as a Free Speech claim, because while the principal of this corporation has Free Exercise rights, it's not clear that the corporation does or should. She derived certain benefits from the corporate form. There ought to be some reciprocal costs, like having to abide by anti-discrimination legislation. Also, if we are talking free speech rights and engaging in rights mediation, we could take note of the obvious. Newspapers have as their essential purposes the communication of ideas, including the political views of the newspaper's editorial board. Website design companies have a different corporate purpose, and so constitutional protections for their free speech rights could differ significantly from constitutional protections for newspapers' free speech rights. Rights absolutism prevents common-sense reasoning and leads to the dumbing down of our public discourse about the ways in which we need to protect speech.
But ultimately, what interests me about this case for the purposes of blog is that this case, seen together with Fulton, illuminates the strange world and strange world view we will have arrived at when the Court finds, as it certainly will, that Colorado cannot compel 303 Creative to do web design for a same-sex couple. The Court will have held that some corporations (Philadelphia) can be compelled to contract with corporations whose religious beliefs lead them to discriminate against gay couples but that gay couples (actual natural persons) cannot compel a corporation to contract with them.
O tempora, o mores!