Megan McArdle in The Washington Post, June 30, 2023, argues that the Supreme Court’s decision in 303 Creative v. Elenis was correct given previous decisions against compelled speech. “What we can do is settle on a truce that allows each side a reasonable degree of freedom,” she writes, “Religious traditionalists shouldn’t be able to stop LGBTQ folks from getting married or accessing public accommodations such as housing or health care, but civil rights authorities shouldn’t be able to force religious traditionalists to express support for something they oppose. This will not fully satisfy anyone. But sometimes securing rights for yourself means respecting someone else’s right to be grievously wrong.”
Law professor Dale Carpenter in Reason, July 3, 2023, notes that the decision only applies to a narrow range of commercial products, covering only “customized and expressive products” by the vendor and where the vendor has an objection to the message rather than to the identity of the customer.
Michael C. Dorf in Dorf on Law, June 30, 2023, faults the decision by not addressing key questions: “Given that the Court reached out to decide an issue that wasn’t obviously in need of resolution, it surely might have also provided the lower courts, business owners, and state and local authorities charged with enforcing public accommodations laws some guidance about who can and who cannot raise free speech objections to such laws. Its failure to do so invites a whole lot of litigation, at least some of which might have been avoided.”
Cathy Gellis in techdirt, July 6, 2023, raises the question, “…will the protective principles announced in this decision be broadly applied, even to litigants with which the Court doesn’t agree, or will the Court instead in the future find some specious basis to refuse to invoke them because it prefers the result denying them would bring? It is a serious question that this Court only has itself and its increasingly inconsistent adherence to precedent to blame for prompting.”
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