How the Antidiscrimination Law of Commercial Transactions Really Works Journal Article uri icon

Overview

abstract

  • In 303 Creative v. Elenis the Supreme Court held that the First Amendment protected a business’s refusal to sell wedding websites to same-sex couples while offering to sell wedding websites for different-sex couples—a refusal that would otherwise violate state public accommodations law. This symposium essay examines how the Court’s decision rested in great part on a fundamental misunderstanding of how the antidiscrimination law of commercial transactions (like public accommodations laws and employment discrimination laws) actually works: the majority’s failure to recognize that these laws do not regulate businesses’ choice of what to sell to the public, but instead their choice to refuse to permit certain customers, based on protected class status, to buy and receive those products and services<br><br>More specifically, this Essay identifies the&nbsp;<i>303 Creative&nbsp;</i> decision’s repeated mischaracterization of the antidiscrimination law of commercial transactions as addressing the content of a commercial product or service—when that law instead focuses on the protected class status of those seeking to buy specific&nbsp;products or services regardless of&nbsp; content. It also considers how unusual features of the&nbsp;<i>303 Creative&nbsp;</i> dispute may have contributed to, or exacerbated, the Court’s misunderstanding. It closes by observing how the Court’s statutory misunderstanding likely contributed to its ultimate First Amendment holding—and how this misunderstanding need not, and should not, extend to any other case.

publication date

  • January 1, 2025

Date in CU Experts

  • January 13, 2026 11:24 AM

Full Author List

  • Norton HL

author count

  • 1

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