The Three Elements of 303 Creative and How They Limit the Decision’s Impact

Authors

Dillon J. Richards, University of Miami School of Law

Abstract

In 303 Creative LLC v. Elenis, the Supreme Court held that a state could not use a public accommodation law to require a wedding website business to create websites for gay weddings. As the Court saw it, the First Amendment shielded the company because its owner did not want to express speech supporting same-sex marriage—and being forced to create websites for same-sex weddings would compel just that.

Some public reaction to the Court’s opinion—perhaps understandably—construed the case as a full-on attack on gay rights, giving businesses a so-called license to discriminate that could not be limited to the wedding context. This Comment argues that this reaction is overstated. In fact, the Court’s opinion is highly limited to the precise factual circumstances of that case. And those facts were extraordinarily favorable to 303 Creative because of factual stipulations that are unlikely to be present in future cases.

Because the Court’s opinion is based on unusually lopsided stipulated facts, this Comment argues that it is unlikely that many businesses will be able to present a 303 Creative free speech defense against a public accommodation law. Businesses will need to show (1) a public accommodation law would force them to create new speech; (2) that speech would be, at least in part, the business’s own speech; and (3) that speech would actually express the message that the business wishes not to express. This Comment explains that these factors are unlikely to be met in many future cases, which should limit 303 Creative’s practical impact.

Recommended Citation

Dillon J. Richards, The Three Elements of 303 Creative and How They Limit the Decision’s Impact, 79 U. Mia. L. Rev. 273 (2024)
Available at: https://repository.law.miami.edu/umlr/vol79/iss1/8