William & Mary Bill of Rights Journal
Abstract
The evolution of rights following Obergefell is not over. Creative 303 LLC marked a new phase in the ongoing legal challenges over the rights and ceremonies attending same-sex marriage. This Essay addresses the anticipated limits of 303 Creative LLC.
The Essay proceeds in three parts. First, how does 303 Creative LLC impact government employees? What rights, if any, should government employees be able to raise in light of 303 Creative LLC? Second, what does 303 Creative LLC mean for private marketplace vendors engaging in expressive commerce? Vendors, particularly wedding vendors, often create unique items for weddings. Will the law focus on the unique nature of the product being sold, the unique nature of same-sex weddings, or simply the product being characterized as expressive commerce? And third, how far ranging will 303 Creative LLC’s free speech protections truly be? Will those with deeply held racial or national origin convictions be permitted to raise similar objections under the First Amendment? Or is same-sex marriage sui generis such that society, and our courts, will accept same-sex couples being relegated to a second-class status in the public marketplace, particularly when it comes to same-sex weddings?
This abstract has been taken from the author's introduction.
Comments
Part of a collection of essays stemming from the 2024 AALS Hot Topic Program on Judicial Rights and Legislative Equality: The Future of Public Accommodation and the Polycentric Constitution After 303 Creative v. Elenis.