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Public Marketplace Discrimination on SCOTUS Docket

June 22, 2023

Prof. Tobias Wolff writes that the upcoming SCOTUS decision in 303 Creative v. Elenis “threatens to be a blockbuster.”

In 303 Creative LLC v. Elenis, the Supreme Court is tasked with deciding whether applying the Colorado Anti-Discrimination Act (CADA), a public-accommodation law, to an artist to speak or stay silent violate the Free Speech Clause of the First Amendment.

Tobias Barrington Wolff, Jefferson B. Fordham Professor of Law Tobias Barrington Wolff, Jefferson B. Fordham Professor of LawTobias Barrington Wolff, Jefferson Barnes Fordham Professor of Law and Deputy Dean for Equity & Inclusion at the University of Pennsylvania Carey Law School, filed a widely praised amicus curiae brief in support of the State of Colorado. 

Wolff writes and teaches on the First Amendment with a particular focus on compelled speech doctrine. He was lead appellate counsel on behalf of the lesbian claimant in Elane Photography v. Willock, the New Mexico case involving a wedding photography company that refused to work with same-sex couples, which produced the first major appellate ruling on the First Amendment issues the Court would later take up in 303 Creative.

Wolff has been a frequent commentator on the intersection of the First Amendment and anti-discrimination laws.

At the Daily Beast, Wolff writes:

Imagine you’re getting married. You’ve worked with a bunch of commercial vendors to plan the perfect ceremony: florist, baker, photographer, one of those wedding website companies, and of course the custom dressmaker and tailor.

The big day finally arrives, the vendors are on site, but just as guests start arriving something odd happens. The florist looks over the wedding program and comes over to you, saying, “You cannot use this officiant. His religious beliefs are heretical. You need to find someone else.” Then the photographer approaches you and explains, “It looks like you plan to have men and women mixed together in the wedding party. That is not appropriate. You have to change it.”

The website designer is next, grabbing your arm and saying, “I just read the vows you plan to exchange and there are sentiments I object to. Here is a list of edits you need to make.” The dressmaker, tailor, and baker are all waiting their turn. When you ask the vendors whether they have lost their minds, they look at you with solemn expressions and respond, “You may think this is your ceremony, but you are using our flowers, our photographic services, our website design, our custom clothes. That means this wedding is promoting our message. We are the speakers here.”

This is not some dystopian nightmare. It is the constitutional argument some wedding vendors are making when they claim a First Amendment right to turn away customers based on their sexual orientation or gender identity, or indeed, their race, sex or religion.

The conservative majority of the Supreme Court may be poised to embrace that argument in 303 Creative v. Elenis, one of the cases this term that threatens to be a blockbuster… .

Read Wolff’s full piece at the Daily Beast.