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303 Creative LLC and "Monopolies of One"

Updated: Feb 25

Back in February, the Supreme Court of the United States agreed to hear an appeal in the case known as 303 Creative LLC v. Elenis.


303 Creative is actually a First Amendment case (specifically with regard to "compelled speech," which I explain further down), but it implicates issues that many businesses will face, and its outcome could affect many businesses.


The Facts


303 Creative LLC ("3CL") is a graphic and web design company based in Colorado. The sole member of 3CL is Lorie Smith. 3CL has not yet begun offering services related to marriage ceremonies, but intends to do so in the future. Ms. Smith is a Christian, and sincerely believes that same-sex marriage goes against God's will (note: the sincerity of her belief is not at issue here, so try not to get caught up on that point).


Because of that belief, Ms. Smith has decided not to create content that celebrates same-sex marriage, whether purchased by a same-sex couple or opposite-sex friends of that couple (the record indicates that she has no problem offering her services to same-sex customers, just not with regard to celebrating same-sex marriage).


Colorado, however, has a statute called the Anti-Discrimination Act ("CADA"). When Ms. Smith, not wanting to run afoul of CADA, still has not offered 3CL's services for marriages at all. But to make sure it would not be an issue, she sued to prevent enforcement of CADA.


Procedural History


The case did not go to trial; the trial court granted Colorado's motion for summary judgment.

3CL appealed the decision to the 10th Circuit. The 10th Circuit issued a 2-1 opinion in favor of Colorado.


The basis for the ruling was complicated. But to understand what's going on at the Supreme Court, it's important to know what happened. The 10th Circuit concluded that combatting discrimination on the basis of sexual orientation is essential to our democratic ideals, and so CADA was constitutional. To get there, the Court analyzed 3CL's First Amendment rights to free speech (here, the right not to be compelled to speak something you do not believe) and to free exercise of religion.


Free Speech (Compelled Speech)


When a government actor (here, the state of Colorado) requires speech, that is called "compelled speech." For that to be constitutional, the state must satisfy strict scrutiny (that is, that the state action is necessary to achieve a compelling state interest, and it is narrowly tailored to further that interest). Lawyers often refer to strict scrutiny as being "strict in theory, fatal in fact," because its application usually means the law is unconstitutional.


But not here.


The Court held that combatting discrimination was a compelling state interest, and that CADA was both necessary and narrowly tailored to that interest.


Free Exercise of Religion


Laws that are both neutral and generally applicable don't typically need to satisfy strict scrutiny. The Court held that CADA is a neutral and generally applicable law. In short, 3CL loses on this theory too.


Monopolies of One?


This is where the opinion turns bizarre. The majority says "...due to the unique nature of Appellants' services, this case is more similar to a monopoly. The product at issue is not merely 'custom-made wedding websites,' but rather 'custom-made wedding websites of the same quality and nature as those made by Appellants.' In that market, only Appellants exist. And [...] monopolies present unique anti-discrimination concerns."


In short, the majority says that where there is a monopoly, it is even more important that this kind of discrimination be prevented.


But the "monopoly" here is an LLC with a single member engaged in graphic and web design.


The Dissent


Judge Timothy Tymkovich, the Chief Judge of the 10th Circuit, authored the dissent. Judge Tymkovich does not mince words, beginning with a George Orwell quote. But the really interesting parts involve the idea of these "monopolies of one" (yes, technically all monopolies are "of one," but bear with me).


The dissent criticizes the majority's opinion for its misuse of the term "monopoly." A monopoly is usually a sole provider of a good or service. Most people think of monopolies in those terms broadly: Twitter is not a social media monopoly (there are many other social media companies). Apple is not a technology monopoly (there are many other companies that manufacture and sell phones, computers, etc.). But the majority opinion allows for categorizing those businesses as monopolies. The majority's opinion could categorize my business as a monopoly. This characterization is, to be frank, nuts.


"In essence, the majority holds that the more unique a product, the more aggressively the government may regulate access to it-and thus the less First Amendment protection it has. This is, in a word, unprecedented."


It also defies reason, in my humble opinion.


Supreme Court Proceedings


The US Supreme Court agreed to hear 3CL's appeal. As of this blog post, over 15 amicus briefs have been filed on the merits question (meaning there are over 15 non-parties who have arguments that the Supreme Court, or sometimes the parties, want to hear). The Supreme Court hasn't scheduled oral arguments yet, but they will likely be in the fall.


What to Expect


I think most people will expect a 6-3 decision on ideological lines (that is, Roberts, Thomas, Alito, Gorsuch, Kavanaugh, and Barrett on one side, Kagan, Sotomayor, and Jackson on the other). But I would not be surprised to see Kagan (if not others) join the majority here. We will have a better idea after oral arguments.


[Edit: the Supreme Court, in a 6-3 decision reflecting the prediction above, sided with 3CL. And neither the majority nor the dissent entertained the 'monopolies of one' theory. The Court held that Colorado could not "forc[e] a website designer to create expressive designs speaking messages with which the designer disagrees."]


"Monopolies of One"


I'm having trouble getting beyond the idea of "monopolies of one." Most people would view "monopoly" as the lack of serious alternatives. I certainly would. But this formulation has rightly received criticism (including some rather colorful criticism in Mr. David Boyle's amicus brief). It essentially threatens every business's right to control their product, and especially those of artistic businesses.


One amicus referred to this misuse of the term "monopoly" as a "word game" (I'm inclined to agree). And Mark Rienzi, president of the Becket Fund for Religious Liberty, referred on a podcast to the decision itself as "...about the worst First Amendment opinion you can imagine from a court of appeals" (I don't know about that; I can imagine some pretty bad opinions). In any event, I look forward to seeing what happens.

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