Brief of Amicus Curiae: Professor Kent Greenfield in Support of Neither Party in 303 Creative LLC v. Elenis

Abstract

Petitioners’ constitutional claims depend on a unity between the individual, Lorie Smith, and the business, 303 Creative LLC. But corporations and their shareholders are not the same, and LLCs and their members are not the same. They are not the same for purposes of corporate law, and they should not be the same for constitutional law. The Court should not distort constitutional law by ignoring a fundamental principle of corporate law. Presuming a unity between investors’ beliefs and the constitutional interests of companies would create special difficulties and analytical complexities in cases in which a business entity asserts a constitutional right to be exempt from antidiscrimination laws. Unity could also empower investors to pressure businesses to advance political or religious beliefs as a basis for exemptions to generally applicable laws, thereby gaining a competitive advantage in the marketplace. Before recognizing a company’s claim to a First Amendment-based exemption, the Court should require that such beliefs be organic to the company, not mere projections of dominant shareholders or investors, and not asserted as pretext to gain economic advantage. Because Petitioners’ briefing and the decisions below do not analyze the relationship between the interests asserted by the business and those of Ms. Smith, the Court should not resolve those matters “in the first instance.” The Court may instead dismiss this petition as improvidently granted, or remand to the Tenth Circuit for further consideration of these issues.

Keywords: Supreme Court, shareholder interests, corporate personhood, limited liability, religious liberty