303 Creative for Everyone?

Authors

Mark Satta, Wayne State University Law School

Document Type

Article

Abstract

Does the holding in 303 Creative v. Elenis give businesses open to the public a constitutional right to refuse to provide expressive services for interracial couples’ weddings, interfaith couples’ weddings, or for couples’ weddings in which one or both partners are disabled? As indicated by questions raised during oral arguments, this is one of the troubling new legal questions created by the Supreme Court’s 303 Creative decision where the Court held that a Colorado web design business had a First Amendment free speech right to refuse to provide wedding website services for same-sex couples’ weddings. Understandably, both the Court’s conservative and liberal justices appear wary of extending the Court’s holding to provide a right to refuse service for other protected couples’ weddings. Yet, so far, advocates of the Court’s decision in 303 Creative have been unable to give a plausible explanation as to why it does not so extend. Often, when pressed, such advocates appeal to Justice Kennedy’s statement, made in dicta, in Obergefell v. Hodges, that “[m]any who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises.” I show why the arguments based on these appeals fail. Such arguments violate longstanding core aspects of the Court’s First Amendment and public accommodation law precedent. Such arguments also undermine the dignity of LGBTQ people, subjecting them to an inferior class status. In light of this, I argue that the best way out is for the Court to narrow 303 Creative’s holding to cover only cases where a state is seeking to enforce its public accommodation law for the purposes the Court attributed to Colorado in 303 Creative. Because states virtually never seek to enforce their public accommodation laws for such reasons, 303 Creative would rarely, if ever, be controlling in future cases.

Recommended Citation

Mark Satta, 303 Creative for Everyone?, 128 W. Va. L. Rev. 1 (2025).
Available at: https://researchrepository.wvu.edu/wvlr/vol128/iss1/4