June 30th is the nominal last day of the Supreme Court’s current term. The Court began the day with the long-awaited decision in 303 Creative LLC v. Elenis, another 6-3 jurisprudentially ideological split in which, per Justice Gorsuch, the Court holds that the First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees. As was the situation with yesterday’s affirmative action cases, it is hard to tell whether the majority and the dissenters (Justice Sotomayor writing their opinion) are speaking about the same case. The majority views this as a clear case of forced speech. To the dissenters, this is no more than a matter of requiring conduct—the sale of services—on the basis of equality. Thus, Justice Gorsuch opines, “Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.” As Justice Sotomayor sees it, ”[t]oday, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class.”

This case originated when Lorie Smith anticipated expanding her graphic design business, 303 Creative LLC, to include services for couples seeking wedding websites. She was concerned, however, that Colorado would apply its Anti-Discrimination Act to force her to create websites that celebrate gay marriages, to which she objects on religious grounds. She thus sued to enjoin the state from forcing her to create websites celebrating marriages that defy her belief that marriage should be reserved to unions between one man and one woman. The Colorado law prohibits all “public accommodations” from denying “the full and equal enjoyment” of its goods and services to any customer based on race, creed, disability, sexual orientation, or any other statutorily enumerated trait. Before the district court, the parties had stipulated to facts, including that:

• Ms. Smith is “willing to work with all people regardless of classifications such as race, creed, sexual orientation, and gender” and “will gladly create custom graphics and websites” for clients of any sexual orientation;

• she will not produce content that “contradicts biblical truth” regardless of who orders it;

• Ms. Smith’s belief that marriage is a union between one man and one woman is a sincerely held conviction;

• Ms. Smith provides design services that are “expressive,” and her “original, customized” creations “contribut[e] to the overall message” her business conveys “through the websites” it creates;

• the wedding websites she plans to create “will be expressive in nature,” will be “customized and tailored” through close collaboration with individual couples, and will “express Ms. Smith’s and 303 Creative’s message celebrating and promoting” her view of marriage;

• viewers of Ms. Smith’s websites “will know that the websites are her original artwork”; and

• “[t]here are numerous companies in the State of Colorado and across the nation that offer custom website design services.”  

Readers of the sizeable opinions in the case—delivered with considerable length and passion by the authors at this morning’s session—will note Justice Gorsuch’s criticism of the dissent for ignoring these stipulations that, to the majority, show that Ms. Smith was willing to provide her services on an equal basis to anyone as long as she was not asked to communicate a message that offended her religious beliefs. To the dissent, which sees the case as no more than an unequal denial of services, these stipulations appear to be irrelevant.

You might recall that the State of Colorado is no stranger to the Court with respect to the issue at hand. Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. ___ (2018), dealt with whether owners of public accommodations can refuse certain services—there, making custom wedding cakes for gay couples—based on First Amendment claims of free speech and free exercise of religion. In a 7–2 decision, the Court ruled on narrow grounds that the Colorado agency seeking to enforce the law against the cake baker did not employ religious neutrality in making its decision. The Supreme Court, therefore, reversed and remanded the case without ruling on the speech and religious freedom issues. Today, however, 303 Creative gets to the heart of a matter that sharply divides the Court and the nation as well.

In the opinion that controls, Justice Gorsuch writes that ”[u]nder Colorado’s logic, the government may compel anyone who speaks for pay on a given topic to accept all commissions on that same topic—no matter the underlying message—if the topic somehow implicates a customer’s statutorily protected trait. . . . Taken seriously, that principle would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty.” He writes further that Colorado would put Ms. Smith in an untenable position: “If she wishes to speak, she must either speak as the State demands or face sanctions for expressing her own beliefs, sanctions that may include compulsory participation in remedial training, filing periodic compliance reports . . . and paying monetary fines.”

Gay rights advocates and others will see 303 Creative as a major step backward. And some will decry the majority’s latest contribution to the string of decisions favoring parties that seek exemptions on the basis of religious beliefs. Of course, both liberals and conservatives yesterday were supportive of the worker who sought an accommodation as to Sunday work based upon his religious beliefs. Already, some media commenters, as many did with respect to the Court’s affirmative action holdings, are over-reading the case. I simply suggest that whatever one’s political views might be, it should be noted that Justice Gorsuch is very careful to cabin his opinion to situations involving speech and expression. If any businessperson thinks that the Court somehow is supporting the general denial of access to goods and services, or otherwise discriminating against gays or any other protected group where there is no countervailing claim as to freedom of speech or a good-faith religious belief, that person would be in error.

This blog generally doesn’t take sides unless, as with the next case to be discussed, the blog’s author has been counsel or amicus, or has taken a public position. I’ll simply note that 303 Creative provokes memories of one of the first Supreme Court cases that I studied as an undergraduate 60 years ago: West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), in which the Court held that the First Amendment protected students from being forced to salute the American flag or recite the Pledge of Allegiance in a public school. Plus ça change plus c’est la même chose. 

Given that the most-contentious cases often are not decided until the end of the term, it was widely understood that Biden v. Nebraska would be such a case, and it is. In another 6-3 decision, this one written by the Chief Justice, the Court has overturned the Biden administration’s student loan forgiveness plan, holding that the Higher Education Relief Opportunities for Students Act of 2003 (HEROES Act) might allow the Secretary of Education to “waive or modify” existing statutory or regulatory provisions applicable to financial assistance programs under the Education Act, but does not allow the Secretary to rewrite that statute to the extent of canceling $430 billion of student loan debt. (Full disclosure: As I hinted earlier, this writer had written publicly opposing the loan forgiveness grounds largely on public policy grounds, but also with respect to the scope of congressional delegation.)

Finding that at least one state entity had standing to contest the student loan forgiveness program, the Chief Justice is quick to note that “the question here is not whether something should be done; it is who has the authority to do it.” Thus, the Court goes on to state that this is not a mere question of statutory review to determine whether ambiguous text might be read in favor of a delegation of authority by Congress. Instead, as was the case in the Court’s recent decision in West Virginia v. Environmental Protection Agency, 597 U.S. ___ (2022), given the “‘history and the breadth of the authority’” asserted by the Executive and the “‘economic and political significance’ of that assertion,” the Court has “‘reason to hesitate before concluding that Congress meant to confer such authority.” 597 U. S. ___, ___ (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 159–160 (2000)). Accordingly, this is another case applying the so-called “Major Questions Doctrine,” requiring a clear statement of the scope of delegation in matters that have great political and economic implications.

Looking at the breadth of scope of the Secretary’s action and the fact that the Department of Education had never previously claimed such extensive power, the Court concluded that while the HEROES Act might provide for waiver or modification, the instant debt cancellation plan is not a waiver because it adds to and expands existing provisions dramatically, and it is not a modification because it constitutes effectively a whole new regime. “And it cannot be some combination of the two because when the Secretary seeks to add to existing law, the fact that he has ‘waived’ certain provisions does not give him a free pass to avoid the limits inherent in the power to ‘modify.’ However broad the meaning of ‘waive or modify,’ that language cannot authorize the kind of exhaustive rewriting of the statute that has taken place here.”

In dissent, Justice Kagan argues that the majority has usurped the role of Congress and the Executive in making policy. She believes that the text of the HEROES Act makes clear that the plan is legal. “The statute provides the Secretary with broad authority to give emergency relief to student-loan borrowers, including by altering usual discharge rules. What the Secretary did fits comfortably within that delegation. But the Court forbids him to proceed. As in other cases, the rules of the game change when Congress enacts broad delegations allowing agencies to take substantial regulatory measures.”

This case will be dissected in a number of ways, all relating to the role of the Supreme Court and whether it somehow is making a political decision against the popular will. I respectfully suggest that Biden v. Nebraska is better looked at in the context of changing and narrowing views about administrative law and the leeway given to agencies to interpret it. Whatever one’s view of the merits of this case, or of West Virginia v. EPA, or of the upcoming review of the Chevron doctrine as to agency deference might be, there is no dispute about the authority of Congress to forgive student loans or to authorize costly environmental undertakings, etc. Indeed, most of these textual interpretation battles would be unnecessary if Congress were clearer and more direct in its legislative enactments. As one looks to the grants of cert. that will be taken up in the next term, this question of the degree to which the Congress must manifest its intentions will be back.

Finally, and perhaps concluding until the fall, a unanimous Court decided a companion case to Biden v. Nebraska, Department of Education v. Brown, in which, per a Justice Alito opinion, the Court held that because the respondents failed to establish that any injury they suffer from not having their loans forgiven is fairly traceable to the student loan forgiveness plan, they lack Article III standing, so the Court has no jurisdiction to address their procedural claim. Standing also was at issue in the Nebraska case, as it was in yesterday’s affirmative action cases and a number of others this term. Particularly with regard to organizational standing, we recommend period reference to Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), the landmark decision that heightened standing requirements under Article III of the Constitution. The Court refers to it often—so should you.