Understanding 303 Creative LLC in a Polycentric Constitutional World

Authors

Meg Penrose, Texas A&M University School of LawFollow

Document Type

Article

Publication Date

7-2024

Journal Title

William & Mary Bill of Rights Journal

ISSN

1065-8254

Abstract

The evolution of rights following Obergefell is not over. Creative 303 LLC marked a new phase in the ongoing legal challenges over the rights and ceremonies attending same-sex marriage. This Essay addresses the anticipated limits of 303 Creative LLC.

The Essay proceeds in three parts. First, how does 303 Creative LLC impact government employees? What rights, if any, should government employees be able to raise in light of 303 Creative LLC? Second, what does 303 Creative LLC mean for private marketplace vendors engaging in expressive commerce? Vendors, particularly wedding vendors, often create unique items for weddings. Will the law focus on the unique nature of the product being sold, the unique nature of same-sex weddings,19 or simply the product being characterized as expressive commerce? And third, how far ranging will 303 Creative LLC’s free speech protections truly be? Will those with deeply held racial or national origin convictions be permitted to raise similar objections under the First Amendment? Or is same-sex marriage sui generis such that society, and our courts, will accept same-sex couples being relegated to a second-class status in the public marketplace, particularly when it comes to same-sex weddings?

Unlike Henny-Penny, this author does not believe the sky is falling. 303 Creative LLC does allow limited discrimination against same-sex couples in the marketplace. This discrimination is permitted despite being in violation of state anti-discrimination laws that increasingly protect sexual orientation and same-sex couples. But the decision will hopefully be narrowly drawn and equally applied. If a vendor selling expressive commerce does not want to serve others, that rule must be equally applicable regardless of the race, gender, religion, or national origin of the person being denied service. The results could get messy. But the law—and the right of free speech to refuse to serve others—must be equally applied. And this mandate, the equal application requirement, will ultimately limit the reach of 303 Creative LLC to ensure a narrow definition of expressive commerce. Society cannot afford to return to an era of segregated services.20 Neither the Court nor Congress will allow that to happen.

First Page

943

Last Page

957

Num Pages

15

Volume Number

32

Issue Number

4

Publisher

William & Mary Law School

Recommended Citation

Meg Penrose, Understanding 303 Creative LLC in a Polycentric Constitutional World, 32 Wm. & Mary Bill Rts. J. 943 (2024).
Available at: https://scholarship.law.tamu.edu/facscholar/2089

File Type

PDF