Case Analysis – Creative LLC v. Elenis

The oral arguments before SCOTUS in 303 Creative LLC v. Elenis (https://www.oyez.org/cases/2022/21-476) (full disclosure – I am in the midst of listening to the arguments and yet to complete) superbly illustrate the role of the law in balancing completing societal claims and interests and, equally, the extraordinary complexity involved in achieving that balance.

The Supreme Court of the United States is considering, here, the case of a website designer who contests a Colorado law that prohibits her from discriminating amongst customers on the basis of sexual orientation. She argues that the law cannot be applied to her because her work involves ‘speech’ and, thus, compelling her to create websites for same-sex couples would violate her First Amendment rights.

Each right is of great value –the societal interests in protecting the right to express oneself (which includes the right not to express something) and the right of non-discrimination on grounds of sexuality are of equal importance. The to-and-fro amongst Court and counsel shows the difficulty of balancing those two competing social claims.

The case also raises very interesting questions about what constitutes ‘speech’ and what is a ‘public accommodation’ (since the law compels her to offer the services only if she falls within the definition of a public accommodation). Separately, the granularity and preparedness of the Justices is remarkable – perhaps an emphasis on disposal pushes these values of judicial decision-making to the background? At the same time, Indian judges superbly balance similar interests routinely, which is extraordinary given the far more trying circumstances (of pendency and workload) in which they operate.

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