Cleaning the Mess of 303 Creative v. Elenis

Abstract

303 Creative v. Elenis is a mess. The Court itself confessed that "[i]t is difficult to read the dissent and conclude we are looking at the same case.". Where the Court saw "pure speech", the dissent saw "conduct, not speech." Where the Court saw a clear reason to curb the reach of Colorado's antidiscrimination law, the dissent saw a clear reason for upholding it. Upon closer inspection, it turns out that the mess goes beyond the diametrically opposed construals of the facts and the analysis by the Court and the dissent. In fact, each opinion generates its own mess. No piece of academic writing can clean, by itself, the mess left by 303 Creative v. Elenis. Only the Court can. This symposium piece can only offer analytical clarity on 303 Creative, which can help to understand and organize the mess. I will proceed to do so in three steps. First, I point out the glaring omissions of the Court’s opinion and criticize the dangerous consequences of the Court’s inexplicable approach. Second, I discuss the inconsistency of the dissent and the truth it reveals about the unviability of its sweeping position. Finally, I argue that the only way to clean the mess—and avoid creating further mess in the future—is to exercise the Court’s legal responsibility responsibly. This could be accomplished, first, by selecting cases with broad applicability and the ingredients necessary to advance the doctrine; at the second step, the Court must write clear opinions that set explicit tests for lower courts and for the public, and must not evade inconvenient precedents, counterarguments, and the resolution of apparent ambiguities.