Contrived cases make bad law

Why the Supreme Court should never have heard 303 Creative - Part 1 of 2.

On June 30, 2023, the Supreme Court held in 303 Creative LLC v. Elenis that the First Amendment bars Colorado from forcing website designers to make wedding websites for same-sex couples.

Lorie Smith, 303 Creative’s sole owner, alleges that she morally objects to creating wedding websites for same-sex couples. However, Colorado never initiated an enforcement action against 303 Creative. At the time it filed its lawsuit, 303 Creative had never turned down any same-sex couple’s request for a wedding website; indeed, it had never made a wedding website of any kind. Nevertheless, 303 Creative preemptively sued Colorado, alleging that if it declined service to a same-sex couple and if Colorado brought an enforcement action, the First Amendment would supply a defense.

Shortly after 303 Creative filed its lawsuit, a person named “Stewart” allegedly approached 303 Creative, requesting that it create a wedding website for him and his fiancé, “Mike.” Throughout the case, 303 Creative relied on that request as evidence that its First Amendment rights were in immediate peril. On June 29, in an intrepid feat of investigative journalism, The New Republic revealed that this request was fake, and “Stewart” was actually a straight, married man.

In my view, the Supreme Court should never have heard this case. I believed that before the “Stewart” revelation, and I believe that even more strongly now.

In this post, the first of two, I’ll make the following points:

• Without Stewart and Mike, 303 Creative’s claim of standing was questionable.

• Stewart and Mike gave a boost to 303 Creative’s claim of standing, which is why 303 Creative relied on them in the district court, Tenth Circuit, and Supreme Court.

• The particular lower-court judges in this case didn’t ultimately rely on Stewart and Mike—the district court found that 303 Creative lacked standing even with them, and the Tenth Circuit found that 303 Creative had standing without mentioning them. But it is easy to imagine other judges deeming the Stewart and Mike allegations to be outcome-determinative.

• If Colorado had known Stewart and Mike were fake, and had pointed this out in its Supreme Court brief, the course of proceedings in the Supreme Court might have been different.

• 303 Creative’s lawyers have not persuasively explained their failure to verify whether Stewart and Mike were real.

• All of the cases in the supposed circuit split on this issue were contrived, and one of them was dismissed under … unusual circumstances.

Details below. Warning, long post ahead, sorry everyone.

(It’s not so easy to depict wedding cakes and websites for same-sex couples in a single piece of artwork.)

So, did they have standing?

Ever since the New Republic posted its piece, there’s been a furious online debate over whether the fake request impacted the case. Some people believe the revelation definitively establishes that the plaintiffs lacked standing; others believe it is wholly irrelevant.

As I see it, the truth lies in the middle. 303 Creative’s standing does not necessarily depend on Stewart and Mike, but Stewart and Mike are relevant to standing, and the inclusion of Stewart and Mike in 303 Creative’s briefs may well have influenced the Supreme Court proceedings.

Let’s start by looking at how the case would have looked without Stewart and Mike. Would 303 Creative have been able to establish standing? The answer is … well, maybe, but it’s not a slam dunk.

303 Creative brought a pre-enforcement challenge to Colorado’s non-discrimination law. It challenged two aspects of that law: the “Accommodation Clause,” which barred refusal of service on the basis of sexual orientation, and the “Communication Clause,” which barred advertising services that would violate the Accommodation Clause. The Supreme Court’s decision focused primarily on the Accommodation Clause, so I’ll start with that.

As a general matter, pre-enforcement First Amendment challenges are permitted. If a law restricts a person’s speech, the person is allowed to challenge the law immediately; the person doesn’t have to violate the law and wait for the hammer to drop.

The leading Supreme Court case on this issue is Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014). The plaintiff, Susan B. Anthony List (SBA), is a pro-life organization. In 2010, following Democratic Congressman Steve Driehaus’s vote for the Affordable Care Act, SBA issued a press release accusing Driehaus of supporting taxpayer-funded abortion. Driehaus filed a complaint with the Ohio Elections Commission, alleging that SBA violated Ohio’s false-statements law. The Commission found probable cause that SBA violated the law, and scheduled a hearing to make a final determination.

SBA sued the Commission in federal court, alleging that Ohio’s false-statements law was unconstitutional. Before the hearing began, Driehaus lost re-election, and dropped his complaint before the Commission. Thus, the threatened Commission hearing never happened. SBA nonetheless proceeded with its lawsuit. It alleged that it planned to continue making similar statements in the future, and that its speech was chilled by the risk of Commission enforcement.

The Supreme Court held that SBA had standing. It walked through a series of Supreme Court cases holding that plaintiffs had standing to challenging statutes restricting their speech, even before an enforcement action was brought. For example, in Virginia v. American Booksellers Ass’n, Inc., 484 U.S. 383 (1988), a Virginia law banned booksellers from showing certain books to minors. The plaintiff booksellers planned to show books to minors in violation of the statute, so they had standing to challenge the law. Likewise, in Holder v. Humanitarian Law Project, 561 U.S. 1 (2010), a federal law banned the provision of certain resources to foreign terrorist organizations. The plaintiffs planned to do what the law banned, so they had standing to challenge the law.

Applying those cases, the Supreme Court held that SBA had standing to challenge Ohio’s false statements law. SBA attested that it planned to make similar statements about abortion in the future, and the Court concluded that SBA faced a sufficient threat of future enforcement to warrant standing. The Court reasoned as follow:

• “Most obviously, there is a history of past enforcement here: SBA was the subject of a complaint in a recent election cycle.”

• “Here, the threat is even more substantial given that the Commission panel actually found probable cause to believe that SBA’s speech violated the false statement statute.”

• “The credibility of that threat is bolstered by the fact that authority to file a complaint with the Commission is not limited to a prosecutor or an agency. Instead, the false statement statute allows ‘any person’ with knowledge of the purported violation to file a complaint.”

(The Court also held that a different plaintiff, COAST, had standing too; COAST was planning to make similar statements as SBA and had also been the subject of Commission enforcement proceedings in the past.)

Let’s turn to 303 Creative’s case. 303 Creative contended that it, too, faced a sufficient threat of enforcement that it had standing to bring a pre-enforcement challenge.

303 Creative’s case, however, differs significantly from Susan B. Anthony and its predecessors. In the prior cases, a law directly proscribed speech, and the plaintiff alleged it would speak in a manner that violated the law. In other words, the moment the plaintiff spoke, it would be violating the law, placing it at immediate risk of an enforcement action.

By contrast, 303 Creative would not be violating Colorado’s non-discrimination law unless a same-sex couple approached it requesting a wedding website, and it refused. Under the Accommodation Clause of Colorado’s law, a public accommodation may not “refuse” service “because of … sexual orientation.” If no same-sex couple ever approached 303 Creative, then 303 Creative wouldn’t refuse service to any same-sex couple, and if 303 Creative didn’t refuse service, 303 Creative wouldn’t be committing illegal discrimination.

Let’s break that down a bit more. What had to happen before Colorado would initiate an enforcement action against 303 Creative under the Accommodation Clause?

A same-sex couple would have to do three things.

First, a same-sex couple would have to approach 303 Creative, requesting that it create a wedding website.

Would this ever happen? It doesn’t seem especially likely. 303 Creative makes all kinds of websites, such as websites for roofing businesses and dog breeders. Even assuming 303 Creative decides to make wedding websites too, why would a same-sex couple randomly come across 303 Creative? It’s not as though 303 Creative is likely to be advertising on Queerty or Towleroad. It’s possible that a same-sex couple might randomly happen across 303 Creative on Google, but there are a zillion website designers out there.

Second, after being turned down, the same-sex couple would have to interpret the denial as an act of discrimination. It’s not obvious this would happen. If you sent an unsolicited request over some web form and didn’t get a response, would you assume you were being discriminated against? This is a frequent occurrence on the Internet.

It’s notable that 303 Creative’s counsel, the Alliance Defending Freedom (ADF), is now claiming that 303 Creative didn’t respond to “Stewart” and “Mike” because doing so would place them at risk of an enforcement action. I have my doubts about this explanation, as I’ll explain further below. But assuming it’s true, it implies that 303 Creative would follow its counsel’s advice to ignore unsolicited requests from same-sex couples, which would leave a typical same-sex couple feeling puzzled rather than victimized. Or, more realistically, the couple wouldn’t care. If it were me looking for a wedding website designer, I’d send emails to a bunch of vendors. I’d assume not all of them would respond, and I’d follow up with those that did, while ignoring back the ones that ignored me.

Third, even assuming the grooms or brides figured out they were being discriminated against, they would have to narc to the anti-discrimination cops. Otherwise, the enforcement action would never occur. If the grooms or brides don’t complain, how else would Colorado enforcement officials find out about the alleged discrimination? The only other person who witnesses the interaction is Ms. Smith, who isn’t likely to turn herself in.

There’s lots of reasons the grooms or brides wouldn’t file a complaint. Maybe they’re principled libertarians; maybe they’re lazy; maybe they don’t want to be attacked in Breitbart.com comments; maybe they think that a designer who opposes same-sex marriage would create crappy websites for same-sex couples and they wouldn’t view an order forcing her to do so as a civil rights victory.

To sum up, 303 Creative’s standing depends on the speculative possibility that a same-sex couple will: (a) ask 303 Creative to make a wedding website, (b) figure out it’s being discriminated against, and (c) rat 303 Creative out. The Supreme Court has expressed “reluctance to endorse standing theories that rest on speculation about the decisions of independent actors,” Clapper v. Amnesty International USA, 568 U.S. 398, 414 (2011), and that’s exactly what one has to do here to find standing.

And, even if all those things happened, Colorado would have to exercise its discretion to begin an enforcement proceeding. We have no idea whether it would do that. True, Colorado didn’t affirmatively disavow the possibility of enforcing Colorado’s nondiscrimination law against 303 Creative. But what do you expect? Colorado had never seen any actual wedding websites created by 303 Creative (there’s a mockup of a wedding website in the record, but it doesn’t correspond to actual human beings getting married). Colorado didn’t have specific facts in front of it regarding how a purported act of discrimination would play out. It’s hard to blame Colorado for declining to make a blanket promise not to enforce its law. There’s a big difference between not disavowing an enforcement action and actually exercising discretion to bring an enforcement action in a particular case.

And so, this case is really different from Susan B. Anthony. Susan B. Anthony approved of a pre-enforcement Free Speech challenge, and 303 Creative brought a pre-enforcement Free Speech challenge, but other than that, the two cases are about as different as two cases can be:

• SBA had already made statements substantially identical to the allegedly false statements it intended to make in the future. 303 Creative, by contrast, had never made a wedding website for anyone.

• SBA would be violating the law the minute it spoke. 303 Creative wouldn’t be violating the law until a third party came along.

• SBA was issuing press releases to the general public, and any person—including its political opponents—could initiate a complaint. In 303 Creative’s case, there was no realistic way for an enforcement action to be initiated unless the same-sex couple complained.

• In Susan B. Anthony, the Ohio Commission had already initiated an enforcement action and already found probable cause that SBA’s actions violated Ohio law. Nothing close to that ever happened to 303 Creative.

Susan B. Anthony is written quite narrowly; it relied on all these factors in its finding that the plaintiff has standing. It is the easiest thing in the world to distinguish 303 Creative’s case from Susan B. Anthony.

As evidence of standing, 303 Creative relied on the famous Masterpiece Cakeshop case, in which Colorado brought an enforcement action against a cake shop owner for refusing to bake a cake for a same-sex couple. Colorado went after a business who denied service to a same-sex couple once, so it would do it again, or so 303 Creative’s argument went.

That’s a bad argument. We’re talking about N=1 here. How many married same-sex couples are there in Colorado? Thousands? Tens of thousands? Meanwhile, a key part of the plaintiffs’ narrative is that there’s this critical mass of principled artists out there who don’t want to serve same-sex couples and who desperately need legal protection. So … thousands of artists? With thousands of same-sex couples interacting with thousands of artists, the plaintiffs can point to one example of an enforcement action against a businessman who morally opposed service to a same-sex couple. How does this single example establish a likelihood that 303 Creative—which is in a completely different line of work from Masterpiece Cakeshop—will face an enforcement action?

More importantly, there are lots of reasons why an enforcement action is far more likely for a bakery like Masterpiece Cakeshop than for 303 Creative.

First, bakeries sell lots of cakes. I dunno, 10 a day? Whereas, Ms. Smith wasn’t designing 10 websites a day. She claims her websites are artistic extravaganzas, so maybe 1 a week? I really have no idea on either of those numbers, but I’m pretty sure that bakeries sell way more cakes than website designers design websites, which means that Masterpiece Cakeshop will have way more opportunities to encounter same-sex couples than 303 Creative.

Second, the bakery was called “Masterpiece Cakeshop.” It alleges it sold artistic cakes that were, well, masterpieces. How many times in your life have you bought a cake that could even arguably be described as artistic? For me, this has happened exactly once: my wedding. While I have staged many horrible children’s birthday parties over the years, in each case I have procured the birthday cake from Giant, or if I was feeling particularly high-falutin, Baskin Robbins. You gotta imagine that a pretty high percentage of Masterpiece Cakeshop’s cakes were for weddings. So not only did Masterpiece Cakeshop have more customers than 303 Creative in absolute terms, but a higher proportion of those customers were seeking wedding-related services.

Third, Masterpiece Cakeshop was a retail business, while 303 Creative was a website. This is relevant because it’s way easier for a visitor to a retail business to figure out he’s being discriminated against than a person who sends unsolicited email requests through web forms. Just look at what happened in the actual cases. The grooms walked into Masterpiece Cakeshop, were told that the proprietor doesn’t bake cakes for same-sex couples, and walked out. Whereas, “Stewart” sent an unsolicited request on a web form and didn’t get a response after Ms. Smith deduced that he was gay. It’s no surprise that the few actual cases have been brought in this area have involved retailers such as bakeries and flower shops.

Fourth, 303 Creative’s case is stronger than Masterpiece Cakeshop. A website seems more expressive than a cake; Eugene Volokh, for instance, concluded that 303 Creative should win while Masterpiece Cakeshop should lose. For this reason, a same-sex couple would be less likely to file a complaint about a website designer than a baker, and Colorado would be less likely to initiate an enforcement action even if a complaint was filed.

So let’s circle back to the original question; without Stewart and Mike, does 303 Creative have standing?

I dunno. Is it speculative to allege that 303 Creative will face an enforcement action? Figuring out whether it’s speculative is itself speculative—how are we supposed to know the likelihood that a same-sex couple will actually approach 303 Creative, for instance? A standing dove would say there’s standing, a standing hawk would say there isn’t. I’m more of a hawk myself so I lean on the no-standing side, but all I can say is … I’d suspect 303 Creative was a little nervous about this and felt that its standing case could use a boost.

Enter Stewart and Mike

The boost came.

Shortly after the complaint was filed, “Stewart” inquired whether 303 Creative would create a website for him and his husband-to-be, “Mike.” This was hugely beneficial for 303 Creative’s standing case. How could Colorado argue it was speculative that 303 Creative would get an inquiry from a same-sex couple when 303 Creative had already gotten an inquiry from a same-sex couple?

Don’t believe me that this was a big deal? Here is 303 Creative’s brief from the district court, making this exact argument:

In the end, the district court held, correctly in my view, that 303 Creative lacked standing even with the Stewart-and-Mike allegations. Here’s what it said:

For the Plaintiffs to violate the Accommodation Statute there are many conditions precedent to be satisfied. The Plaintiffs must offer to build wedding websites, a same-sex couple must request Plaintiffs’ services, the Plaintiffs must decline, and then a complaint must be filed. This scenario is more attenuated and thus more speculative. If the Court assumes that the Plaintiffs would offer to build wedding websites, decline a request by a same-sex couple, and the unhappy customer filed a complaint, there remains the question of whether a same-sex couple would request Plaintiffs’ services. The parties have submitted stipulated facts as to the number of web design companies in Denver, Colorado and in the United States, but such general information does not provide details as to how many web design companies offer wedding websites, how many websites are built for weddings, or how many same-sex couples use such services. On this evidence, the Court cannot determine the imminent likelihood that anyone, much less a same-sex couple, will request Plaintiff’s services.

And as to the Stewart-and-Mike allegations, it said this:

The Plaintiffs also direct the Court to an email that Ms. Smith received on September 21, 2016, after the Complaint in this matter was filed. Ostensibly in response to a prompt from 303’s website asking “If your inquiry relates to a specific event, please describe the nature of the event and its purpose”, the email states: “My wedding. My name is Stewart and my fiancee is Mike. We are getting married early next year and would love some design work done for our invites (sic.), placenames(sic.), etc. We might also stretch to a website.” This evidence is too imprecise, as well. Assuming that it indicates a market for Plaintiffs’ services, it is not clear that Stewart and Mike are a same-sex couple (as such names can be used by members of both sexes) and it does not explicitly request website services, without which there can be no refusal by Plaintiffs. Because the possibility of enforcement based on a refusal of services is attenuated and rests on the satisfaction of multiple conditions precedent, the Court finds that the likelihood of enforcement is not credible.

Reading between the lines, the district court didn’t believe that Stewart and Mike were two actual men who desired that 303 Creative design a website, which was pretty prescient.

On to the Tenth Circuit, where 303 Creative doubled down on Stewart and Mike. Here’s what it said:

And ADF prevailed on some godforsaken summer intern to prepare the following footnote:

Colorado pointed out that the Stewart-and-Mike allegation came after the complaint was filed, but 303 Creative deftly swatted that argument away:

In the end, the Tenth Circuit found that the plaintiffs had standing without relying on Stewart and Mike. It said: “Assuming Appellants offer wedding-related services to the public as they say they will, there is no reason to then conclude that Appellants will fail to attract customers. Nor is there reason to conclude that only customers celebrating opposite-sex marriages will request Appellants’ services.”

I’m not persuaded by this … just because there’s “no reason to conclude” that something won’t happen doesn’t mean that it will happen with sufficient likelihood to support standing. But anyway, all I can say is … boy did 303 Creative get lucky here. It’s very easy to imagine a more hawkish panel either affirming the district court, or reversing the district court based on Stewart and Mike, which is exactly what 303 Creative urged it to do.

But of course the case wasn’t yet over … Supreme Court proceedings awaited.

The problem is that we’re just not communicating.

A quick digression.

As noted above, 303 Creative also challenged the so-called “Communication Clause” of Colorado’s anti-discrimination law. 303 Creative alleged that it wanted to post a statement on its website explicitly stating its intent not to create same-sex wedding websites, and alleged that this statement—even without any actual gay visitors to the site—would be enough to provoke an enforcement action.

This allegation is an excellent illustration of how this is a fake case. Ordinary Earthlings trying to make a living, even those who don’t want to design wedding websites for same-sex couples, don’t enter the wedding website design business while proudly and publicly proclaiming on their websites that they won’t serve same-sex couples. The website design industry is fiercely competitive. 303 Creative is competing with thousands of designers, all over the world, some of which specialize in wedding websites.

Declaring “we don’t design websites for same-sex couples” is obviously going to be alienating to lots of potential customers. 303 Creative’s market will largely consist of people in their 20s and early 30s. Gallup reports that 89% of Americans aged 18-29 support same-sex marriage. And, I’d suspect that twentysomethings with enough disposable income to pay someone to design a wedding website are even more likely to support same-sex marriage. Most, maybe all, of those couples are going to be turned off by 303 Creative’s announcement. Why do this? Why not just politely decline in the unlikely event that a same-sex couple seeks your services? Obvious answer: in order to manufacture standing.

Anyway, the district court held that 303 Creative had standing to challenge the Communication Clause, but the challenge failed because (a) 303 Creative didn’t have a constitutional right to promise to do something illegal, i.e., violate the Accommodations Clause, and (b) it couldn’t argue that the Accommodations Clause wasn’t illegal under the First Amendment because it didn’t have standing to challenge the Accommodations Clause. As the court put it: “Allowing her to use a claim challenging the Communications Clause as a Trojan Horse to challenge the Accommodations clause indirectly would undermine the Court’s prior finding with regard to standing.”

This seems right to me. It is reminiscent of the Supreme Court case of Clapper v. Amnesty International USA, where the Court held that if a plaintiff lacks standing to challenge a government action on the ground that it’s too speculative, it can’t manufacture standing by taking precautions against that speculative action and then alleging standing based on those precautions. The Tenth Circuit and Supreme Court didn’t rule one way or another on this issue.

On to SCOTUS

After losing on the merits in the Tenth Circuit, 303 Creative filed a petition for certiorari. Stewart and Mike made an appearance:

Colorado’s brief in opposition argued that 303 Creative lacked standing, but certiorari was granted anyway. After the Supreme Court agreed to hear the case, 303 Creative filed its merits brief, and again touted Stewart and Mike:

Colorado abandoned its standing argument in its merits brief.

In the Supreme Court’s opinion, the Court summarizes 303 Creative’s argument for standing (pp. 3-4), observes that the Tenth Circuit found that 303 Creative did have standing (p. 5), and states that “[b]efore us, no party challenges these conclusions” (p. 5). The dissent didn’t address the issue at all.

Now, the $64,000 question. Did Stewart and Mike affect the Supreme Court case?

The superficial answer is: no, because Colorado didn’t litigate it, and the majority didn’t mention it.

But why didn’t Colorado litigate it? After all, it won on this issue in the district court. And it was facing a fiercely hostile Supreme Court. And this case was easily distinguishable from Susan B. Anthony. Why not give it a shot?

Well, maybe Colorado didn’t litigate this issue because it didn’t think it could credibly say that 303 Creative’s claims were too speculative, given that 303 Creative had told the Court that it had already received a request from a same-sex couple. Which we now know isn’t true.

In its decision, the Court relied on the fact that Colorado didn’t challenge standing: it said “no party challenges these conclusions” and moved on. I rather suspect the Court’s discussion would have been more elaborate if Colorado had challenged standing after all. True, the Court has an obligation to consider standing sua sponte. But the Court decides cases as framed by the parties, and if Colorado made a considered decision not to challenge standing, the Court wasn’t going to push back. And of course, the Court didn’t know that the website request was fake, either.

Think of it this way. What would have happened if the New Republic article had come out shortly before Colorado filed its merits brief? If I was Colorado’s lawyer, I know what I would have done. I would have explained that the allegation that 303 Creative relied upon in the district court, Tenth Circuit, petition for certiorari, and Supreme Court merits brief was fake, and that without that allegation, 303 Creative’s allegations were too speculative to establish standing.

Would this have changed the outcome? The legal realist in me says no. Standing usually follows the merits, as evidenced by the student loan case, in which all nine Justices voted the same way on standing and the merits despite the two issues being completely unrelated. So Occam’s Razor says it would have been 6-3 on standing.

But as I’ve blogged about before, sometimes standing doesn’t follow the merits. I guess we’ll never know.

Pointing fingers

Whose fault is this?

There is no evidence whatsoever that either 303 Creative or ADF (its counsel) fabricated the fake request. The allegation makes no sense. Why fabricate the request after, rather than before, the complaint is filed? And why make the fraud so easy to detect?

I think the concern here is that perhaps 303 Creative should have kicked the tires a bit on this allegation before relying on it. The time spent computing the probability of lightning strikes vis-a-vis the probability of “Stewart” and “Mike” being masculine names might have been better spent checking whether Stewart and Mike were fake.

Of course, Colorado could have checked this too. But the parties weren’t similarly situated here … it was 303 Creative, not Colorado, that was relying on this information in its brief. It seems to me that a party relying on information has a special responsibility to make sure it’s accurate.

I’m not persuaded by ADF’s explanation for failing to detect the fraud. After the news of the fake request came out, ADF claimed that Ms. Smith didn’t respond to “Stewart” in order to avoid a lawsuit. ADF stated: “had she responded, she would have risked potential punishment by Colorado, which would have undermined the very purpose for her pre-enforcement suit.” To quote another ADF lawyer: “It puts her at extreme risk to go and interrogate somebody for these requests.”

To quote the great John Cena … are you sure about that?

In the district court, 303 Creative advised the court that “Lorie has not responded to the request because she is not currently creating custom wedding websites solely because of CADA.” In other words, 303 Creative wasn’t offering wedding services to anyone and hence wasn’t discriminating. So doing some diligence on “Stewart” wouldn’t put them at “extreme risk.”

Moreover, I don’t understand how not responding to the request (and hence double-checking it) would eliminate, or even reduce, the risk of potential liability. The argument seems to be that if 303 Creative doesn’t respond, it can’t be accused of “refusing” service. That’s incorrect. A person who ignores a request on the basis of a protected characteristic is just as liable as a person who explicitly denies service. Indeed, in its Tenth Circuit discussion of Stewart and Mike, 303 Creative acknowledged that “even if Lorie had remained silent, she would still have violated the Accommodation Clause, which forbids ‘indirectly … withhold[ing] … [or] deny[ing] … full and equal enjoyment of services.” I don’t understand how ignoring “Stewart” and “Mike”—while touting, in a public filing, 303 Creative’s incredibly high degree of certainty that “Stewart” and “Mike” are both men, as well as 303 Creative’s knowledge that ignoring a request could render it liable—somehow reduces the risk of “Stewart” and “Mike” suing them.

That said, I’m reluctant to criticize the lawyers on either side. Lord knows I’ve made many mistakes in litigation over my career. There but for the grace of God.

Moreover, ADF has achieved great success in the courtroom. Through skill and tenacity, they prevailed in this case and many, many others. I commend them for their incredible record of litigation success, even if I do not share their substantive vision.

The Court should never have taken the case

Even accepting that 303 Creative ekes past the standing threshold, the Supreme Court shouldn’t have taken the case. Why should the Supreme Court inject itself into controversial issues in the context of such manufactured, artificial litigation?

303 Creative argued that the Court should grant certiorari to resolve a split of authority. It claimed that three appellate or state supreme courts—the Eighth Circuit, Eleventh Circuit, and Arizona Supreme Court—had reached conclusions contrary to the Tenth Circuit’s conclusion.

Resolving circuit splits is generally a good reason to grant certiorari. Except here, the cases on both sides of the split were contrived.

We can leave aside the Eleventh Circuit case, Coral Ridge Ministries Media, Inc. v. Amazon.com, Inc., 6 F.4th 1247 (11th Cir. 2021). That case has nothing to do with vendors having philosophical objections to same-sex weddings—it held that Amazon was permitted to exclude a religious group from its AmazonSmile program.

The other two cases, from the Eighth Circuit and the Arizona Supreme Court, do involve vendors with philosophical objections to same-sex weddings. But let’s take a closer look at them.

The Arizona Supreme Court case, Brush & Nib Studio, LC v. City of Phoenix, 448 P.3d 890 (Ariz. 2019), involved a calligrapher’s objection to making wedding invitations for same-sex weddings. Like 303 Creative, the case was a pre-enforcement challenge brought by ADF. As in 303 Creative, the plaintiffs did not allege that any same-sex couple had ever approached them for wedding invitations. They nonetheless alleged they had a First Amendment right to refuse service if, hypothetically, a same-sex couple approached them.

Today, Brush & Nib’s website is an advertisement for an Indonesian casino, as it apparently was throughout 2022 as well.

The second case, Telescope Media Group v. Lucero, 936 F.3d 740 (8th Cir. 2019), is pretty incredible. It involved videographers who objected to making videos for same-sex weddings. Again, like 303 Creative, the case was a pre-enforcement challenge brought by ADF. And, as in 303 Creative, not only had the plaintiffs never been approached by a same-sex couple, but they had never made a wedding video of any kind.

The District of Minnesota dismissed Telescope’s Free Speech claim, but the Eighth Circuit reversed the dismissal. Formally, the Eighth Circuit merely held that Telescope had stated a claim, and remanded for consideration as to whether Telescope was entitled to a preliminary injunction. But the Eighth Circuit’s reasoning made clear that Telescope deserved to win its Free Speech claim. On remand, the parties stipulated to the entry of a preliminary injunction.

That’s when things got interesting. The case wasn’t over yet—there was only a preliminary injunction, no final judgment. In October 2020, Telescope proposed delaying discovery until the court held a Rule 16 conference. Minnesota declined this proposal and served discovery requests seeking information regarding Telescope’s business.

Rather than respond to the discovery requests, Telescope then proposed voluntarily dismissing its case. Whoah!

Minnesota’s consent was required for a voluntary dismissal, and Minnesota declined to consent. So Telescope then moved to dismiss its own case with prejudice, deliberately and permanently throwing in the towel. Double whoah!

It did this even though, in light of the Eighth Circuit’s prior opinion, it was basically guaranteed to win the case. And doing this deprived its lawyers of a potentially huge attorney’s fees award they would have obtained if they were the prevailing party.

To explain this development, Telescope’s owner submitted a sworn declaration. He said: “Telescope Media Group exited the wedding industry last fall. And neither I nor my business have any intent to re-enter that industry.” He further said: “In fact, Telescope Media Group has pivoted to producing mostly virtual events, and we have considered pursuing other business opportunities, which may mean we would move out of state.”

The declaration describes how COVID had a devastating effect on live-event requests. Undoubtedly that is true, but COVID wasn’t going to last forever—weddings were going to start again eventually. If Telescope had any intention of re-entering the wedding industry in the future, the case would still be live, and Telescope would essentially be guaranteed to win in view of the Eighth Circuit’s prior decision. Why deliberately lose the case? All I can say is that Telescope must really not have wanted to respond to those discovery requests.

The district court dismissed the case, while noting that the defendants “have been compelled to litigate what has likely been a smoke and mirrors case or controversy from the beginning, likely conjured up by Plaintiffs to establish binding First Amendment precedent rather than to allow them to craft wedding videos, of which they have made exactly two.”

And what happened after that? Take a look at Telescope’s “contact” page on its website. Despite Telescope stating in its declaration that it has “pivoted to producing mostly virtual events” and is considering moving “out of state,” its location is still “Saint Cloud, MN,” while stating that it is “On location 24-7.” And despite Telescope stating in its declaration that “exited the wedding industry” and lacked “any intent to re-enter that industry”—its stated ground for dropping its case in lieu of responding to discovery requests—the “contact” page states, in all caps, when you click the three little lines at the top right, “WEDDINGS.”

Hmm.

My next post will explain how the contrived nature of 303 Creative inhibited reasoned judicial decisionmaking.