In the first week of December, the Supreme Court of the United States (SCOTUS) heard arguments in two cases, both of which promise landmark decisions that will change the landscape of constitutional law.
303 Creative LLC v. Elenis presents the following question: “Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.” The underlying issue is about a website designer who wishes to design wedding websites but does not wish to do so for same-sex couples and wishes to advertise as such on her website. Colorado’s public accommodations law prohibits this kind of discrimination. No same-sex couples had ever asked her to design a website, and she had never declined service to anyone. Yet the Court still took this case (more on that below).
The consequences of this case are striking. If SCOTUS rules – as it is likely to, based on the questions at oral argument – that the First Amendment permits 303 Creative LLC to deny service to same-sex couples, then federal courts threaten public accommodations and civil rights laws throughout the country. And this is because a business owner’s right to express discriminatory views will be privileged above the rights of marginalized groups to access public businesses on an equal basis.
Aside from the striking potential consequences of this case are some procedural oddities, as well as some bizarre moments from oral argument. Procedurally, this case does not come to SCOTUS the way most do. A comparison to a previous case – which addressed similar subject matter (and arises from our state, as well) is helpful, here. In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018), a baker refused to bake a custom wedding cake for a same-sex wedding and faced a penalty from the Colorado agency responsible for enforcing the civil rights law. That created a record, upon which SCOTUS ultimately reversed the decision of the civil rights commission on narrow grounds, avoiding the constitutional question. But here, there has been no such enforcement action. Indeed, at the time of the lawsuit, 303 Creative LLC had not made any wedding websites, had not been asked to do so by any same-sex couples, and had not declined service to anyone.
This is important because it robs SCOTUS of a record on which it can decide this case. In an average appellate case, the record provides facts and analysis, and there are doctrines of deference depending on the issue that cabin a reviewing court’s ability to make law out of whole cloth because the ruling has to fit the facts. But here, there was no such limitation. And crucially, there were no victims of discrimination because nothing had actually occurred. 303 Creative LLC had not declined service to anyone. There was no enforcement action for SCOTUS to review. This is unusual and indicates that SCOTUS wanted to reach this constitutional issue, even though under traditional standing rules (requiring a plaintiff with injury in an actual case and controversy), this case would likely not be heard at all.
As some other analysts have noted, this led to an oral argument dominated by hypotheticals instead of by questions about the record or the law. In full form was Justice Alito, asking questions about whether a Black Santa Claus would have to let children dressed up in Ku Klux Klan robes sit on his lap, and making jokes to Justice Kagan about adult and dating websites such as J-Date and Ashley Madison.[1]
The reasoning of this case and its narrowness or breadth will have significant consequences for the future of civil rights accommodations laws nationwide. And it is a decision that will have been made based on a hypothetical question rather than facts and a concrete record. This is, thus, a case where both the on-the-ground consequences for vulnerable groups matter, as do the effects on the rule of law and the expanding role of SCOTUS in American law.
If that weren’t enough, SCOTUS also heard oral argument in Moore v. Harper, perhaps the most consequential case that SCOTUS has heard in a generation and that has the potential to permanently alter the relationship between state governments and the federal courts.
The underlying question in this case is about political gerrymandering – the process by which state legislatures draw electoral maps to favor one party over the other. The North Carolina legislature drew a map that heavily favored Republicans. Democrats sued. And the North Carolina Supreme Court agreed with the lawsuit and threw out the gerrymandered map.
SCOTUS took the case to review the issue of a theory known as the “Independent State Legislature” theory, a theory that has little support in tradition (or, frankly, in logic). Under this theory, based on an incredibly narrow and acontextual reading of the Constitution, the legislature of a state is unconstrained by that state’s constitution when drawing federal election maps. In other words, under the broadest version of the theory, the North Carolina Supreme Court has no authority to determine that the North Carolina legislature violated the North Carolina constitution.
The primary reason this theory is completely unhinged is this: state legislatures are creations of and subjects of, not separate from or superior to, state constitutions. State constitutions determine who can serve in the legislature and how those people are elected. State courts regularly make decisions about the limits of state legislative authority based on the specific provisions that create the legislatures and invest them with authority in the first place. To determine that a state legislature is not subject to the limits of the constitution that creates it would invert everything American citizens understand about how governments are, well, governed. The constitution is the mast to which the ship of state is tied. In other words, laws are subject to constitutional review; the constitution is not subject to the legislature’s whims.
It is impossible to overstate the consequences of this decision. If a state court cannot review whether a state legislature acted within its own constitution, then only federal courts can review state maps. And federal protections for voting are weaker than those in many states. For example, SCOTUS has previously held that political gerrymandering is federally nonjusticiable, meaning that such claims cannot be brought to a federal court at all. And it has limited the protections of the Voting Rights Act. Therefore, even a truly “purple” state like North Carolina could engage in substantial political gerrymandering, guaranteeing that a supermajority of its federal representatives are of one party, and it could disenfranchise groups of voters in the process. As long as the North Carolina legislature did so without the specific intent to discriminate, a federal court would likely uphold such a map, even if such a map violated state constitutional provisions.
A broad ruling would also create chaos. This issue only affects federal elections, so state courts could still determine voting rules for state and local elections, even those happening on the same day at the same polling places. That would mean that state and federal elections would be operating not under overlapping constitutional rules (as they do now) but, instead, under separate constitutional rules governed by entirely different bodies.
Finally, there is one interesting note about the amicus parties in this case. The Conference of Chief Justices, which represents the chief justices of all of the states, filed an amicus brief ostensibly in support of neither party but that eviscerates the theory.[2] The brief is worth reading, if for no other reason than for representing the consolidated and consistent views of fifty chief justices – a breadth of agreement unimaginable on any other issue. Let us hope that SCOTUS listens to its parallel state institutions.
[1] No. I’m not kidding. See https://www.oyez.org/cases/2022/21-476, where you can follow along with the argument and transcript. [2] You can read the brief here: https://www.supremecourt.gov/DocketPDF/21/21-1271/237155/20220906161712850_Moore%20v%20Harper%20Amicus%20Sept%206_FINAL_Filed.pdf