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Thursday, July 13, 2023

303 is the new Citizens United

That is, critics will misconstrue what it said, misconstrue its context in an effort to make it more evil (that already is happening), blame it for every bad thing that happens going forward, and treat it as different from every other Supreme Court decision in its potential for lower-court mischief. On that last point: Every incorrect Supreme Court decision (i.e., decision with which I disagree) can spawn new incorrect decisions (i.e., decisions with which I disagree); that is the nature of precedent. 303 critics have seized that possibility to suggest 303 was somehow uniquely wrong--wrong in a way beyond most wrong decisions--such that the Court never should have decided the case at all (because of the above misconstruction of its procedural context).

The story of the Michigan hair stylist prompted Chris Geidner to label 303 as uniquely bad because 2023 is full of horrible people doing or threatening horrible things to the LGBTQ+ community--it is certain that bad people will try, and courts may allow,  to use the decision to further bad ends. Again, it seems, beyond what we expect from any decision we do not like. I agree with much of what he argues, including that public accommodations laws should survive strict scrutiny even as to expressive products and services, something 303 never analyzed. But several points reflect an elevation of 303 to demonic status (call it 303 Derangement Syndrome).

    1) Life is bad in the 2o jurisdictions that do not protect LGBTQ+ people in their public accommodations laws. But it was bad before 303 and 303 did not worsen that. As a descriptive default, all discrimination in places of public accommodation is lawful unless government enacts a law changing that default. In a state without statutory protections for LGBTQ+ people, it has always been legal for a private business to refuse them service because of that status. 303 does not change that. Perhaps it "empowers" bad people to try new bad things. But they could do that all along. And the air of anti-LGBTQ+ bigotry might have provided sufficient incentive without SCOTUS input.

    2) Bigots will push the boundaries and it might work. Courts may interpret and apply 303 more broadly than Dale Carpenter suggests it should be. Or people may not sue. Or the state civil rights commission may not pursue the claim. (The fact of two-prong enforcement makes some enforcement likely). Or the salon owner may appeal. But what makes 303 different? That is how this works--a court issues a decision, the public and other actors conform their conduct to that decision, new conduct spawns new litigation, and that litigation takes time (and money and effort) to resolve itself. We cannot wring our hands over this because the Court reaches a conclusion we do not like, not matter how deep our distaste for the decision. The subsequent process does not render the precipitating decision illegitimate.

Geider closes with this:

To argue that a narrow reading of 303 Creative v. Elenis is the path forward is certainly a good argument, but it’s not a fact.

Those concerned about the implications of the ruling and the rippling consequences that could become a post-decision aftershock are speaking from a point of persuasion based on our recent experience. And advocates and others seeking to protect robust enforcement of nondiscrimination laws should respond accordingly.

Of course advocates should respond--whether by driving that salon into the ground through public criticism or by pursuing litigation and enforcement. And I do not read Carpenter or anyone else as suggesting otherwise. Again, however, why is this decision different from all other decisions?

Posted by Howard Wasserman on July 13, 2023 at 10:27 AM in First Amendment, Howard Wasserman | Permalink


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