Christopher R. Green (University of Mississippi – School of Law) has posted Speech, Complicity, Scarcity, and Public Accommodation (2023 Cato Supreme Court Review 93) (19 pages) on SSRN. Here is the abstract:
303 Creative LLC v. Elenis is the Supreme Court’s second, but almost certainly not its last, case on the extent of state power to require wedding-related professionals to participate in same-sex wedding ceremonies or their accoutrements. Five years ago, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission held, in one of Justice Anthony Kennedy’s last opinions for the Court, that Colorado had been improperly hostile to baker Jack Phillips’s religious views in requiring him to design a cake for a same-sex wedding. This time, after limiting the question presented to free speech, the Court held that requiring Lorie Smith to prepare websites for same-sex weddings if she prepared them for traditional weddings would unconstitutionally compel her to speak, akin to requiring a group to salute the flag or to add discordant elements to its parade or its membership.
Rather than grounding Lorie Smith's rights in a First Amendment that was designed as a restriction on a federal government with limited responsibilities, the Court should have instead used the Privileges or Immunities Clause of the Fourteenth Amendment, which guarantees equal civil rights, including equal professional and entrepreneurial rights, for citizens of all religious and political creeds. When the next wedding-professionals case arrives at the Supreme Court, the justices should use the original meaning of the Fourteenth Amendment to reinvigorate traditional limits on the sorts of businesses affected with a public interest, particularly the Court's 1923 holding in Charles Wolff Packing that "one does not devote one’s property or business to the public use or clothe it with a public interest merely because one makes commodities for, and sells to, the public." In markets with no local scarcity, in which those planning same-sex weddings have complete and unfettered access to goods and services, there is no constitutionally-adequate or historically-grounded justification for denying those like Jack Philips and Lorie Smith access to the market to sell their services to willing customers. The 303 Creative dissenters' arguments to the contrary do not withstand careful scrutiny.
(Via Larry Solum at Legal Theory Blog, who says "Highly recommended.")
Posted at 6:42 AM