Steven smith

Warren Distinguished Professor of Law; Co-Executive Director of the Institute for Law & Religion and the Institute for Law & Philosophy

a collision Between free speech and anti-Discrimination in 303 Creative LLC v. Elenis IX.

People care about weddings . Passionately .  So it is not surprising that weddings have become the setting for impassioned conflicts over cherished constitutional commitments implicating freedom of speech, freedom of religion, and equality . 303 Creative LLC v. Elenis is the latest of these conflicts to be addressed by the Supreme Court .

The case was brought by a custom website designer, Lorie Smith, who wanted to expand her Colorado-based business into designing personalized websites for weddings As a devout Christian, Smith refuses to create websites or convey messages that conflict with her religious convictions; given her belief that marriage must be between a man and a woman, she accordingly did not want to prepare websites for same-sex weddings Foreseeing that this position would put her in violation of the Colorado Anti-Discrimination Act, Smith sought an injunction enjoining enforcement of the act against her She argued that enforcement would violate her freedom of expression by compelling her to affirm a message she does not believe .

Smith’s argument failed in the district court and the Tenth Circuit . It fared better with the Supreme Court—or at least with six of the justices . But the passion generated by such conflicts was on full display in a dissenting opinion by Justice Sonia Sotomayor and joined by Justices Kagan and Jackson .

The case was in one sense a rerun of the much-discussed Colorado baker case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, which was decided in 2018 . The Court resolved Masterpiece Cakeshop on narrow, case-specific freedom of religion grounds; the Court deferred consideration of the free speech question . In Creative 303, though, the Court reached that question .

Justice Gorsuch’s majority opinion vigorously reaffirmed the “no compelled expression” idea that was most eloquently articulated in West Virginia Board of Education v. Barnette (which Gorsuch repeatedly cited) . “If there is any fixed star in our constitutional constellation,” Barnette had declared, “it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein ” If Lorie Smith were compelled (on pain of penalty or of sacrificing part of her livelihood) to promote and celebrate same-sex weddings, Justice Gorsuch reasoned, she would thereby be forced to express something she does not believe Justice Gorsuch chided the dissent for a lack of commitment to this long-standing principle .

For her part, Justice Sotomayor pressed the equality theme in her dissent She reviewed the country’s painful history of prejudice and discrimination against blacks, women, and LGBTQ individuals, and praised the efforts of courts and legislatures to overcome such discrimination Justice Sotomayor personalized this history by recounting stories of individual people who had suffered from discrimination .  And she accused the majority of betraying the commitment to equality .

The clashing arguments in such cases by now follow a familiar pattern based on contrasting categories and characterizations . Those resisting application of antidiscrimination laws describe the cases as about expression; conversely, advocates favoring enforcement say that what is at issue is conduct . The resisters perceive the product or service in question as a specific kind of website—or wedding cake, or floral arrangement—celebrating particular kinds of weddings (in these cases, same-sex weddings) On this view, the designer or baker or floral arranger has no objection to serving anyone based on sexual orientation; the objection is only to communicating a particular message (which he or she declines to express regardless of who is asking for it) . Conversely, the enforcers describe the product or service more generically as simply a wedding website or cake or floral arrangement And they insist that the designer or baker or floral arranger is refusing to sell the same product—the same product under their more generic description—merely because of the sexual orientation of the would-be customer .

So, how to choose between these competing characterizations? I happen to think that the resisters’ descriptions are more faithful to the actual facts (Full disclosure: I helped to prepare amicus briefs on the free speech issue in both Masterpiece Cakeshop and 303 Creative, as well as in Arlene’s Flowers, an earlier case involving a florist from Washington state) . Ultimately, though, the matter comes down to how one values, prioritizes, and attempts to reconcile the competing constitutional commitments . That evaluation, in turn, will depend on one’s vision of what sort of country we are and aspire to be .

In 303 Creative, however, the choice between constitutional commitments and inconsistent characterizations was at least affected by stipulations that the parties had made early in the case . As the majority explained, the parties had stipulated that Lorie Smith “‘will gladly create custom graphics and websites’ for clients of any sexual orientation,” that “[a]ll of the graphic and website design services Ms . Smith provides are ‘expressive,’” that her “designs are ‘original, customized’ creations that ‘contribut[e] to the overall messages’,” and that Smith “will not produce content that ‘contradicts biblical truth’ regardless of who orders it . ”

These stipulations reenforced the majority’s characterizations, by which the case was more about compelled expression than about equality .

Parties in future cases will no doubt be wary of making similar stipulations Moreover, the Court’s decision turns entirely on the proposition that Smith’s website services were “expressive” and “pure speech”—a matter that has been and will be contested in other kinds of cases Although the free speech side prevailed in 303 Creative, therefore, the blissful unions we call weddings will likely continue to be a source of bitter and sometimes indignant disputation .

Mary Jo wiggins

Professor of Law

in Bartenwerfer v. Buckley, textualism continues its reign in Bankruptcy law X.

Lawyers are familiar with the legendary maxim “hard cases make bad law . ” In Bartenwerfer v. Buckley, the United States Supreme Court may have proved the validity of an alternative: “Easy cases make good law . ” In Bartenwerfer, the Court unanimously held that Section 523(a) (2)(A) of the Bankruptcy Code (“the Code”) precludes an individual debtor from discharging a debt obtained by fraud, regardless of the debtor’s own culpability .

Bartenwerfer’s significance goes beyond clarifying the proper reading of Section 532(a)(2)(A) The decision is also important because it further cements textualism as the Court’s dominant methodology for interpreting the Code .

The facts in Bartenwerfer resemble a home renovation reality show A couple, Kate and David Bartenwerfer, bought a house in San Francisco and took title jointly, with the intention of acting as business partners to remodel the house and later sell it for a profit

David did almost all of the work on the project .  Once the house was finished, the Bartenwerfers sold it to Kieran Buckley After the sale, Buckley discovered at least four material defects that the Bartenwerfers had not disclosed prior to the sale (despite warranting they had) . Buckley sued the Bartenwerfers in state court, alleging breach of contract, negligence, and nondisclosure of material facts The jury found for Buckley The Bartenwerfers were liable for more than $200,000 in damages .

Unable to pay Buckley and their other creditors, the Bartenwerfers filed for Chapter 7 bankruptcy . If the Bartenwerfers’ debt to Buckley had been a normal one, it would be dischargeable—meaning that the Bartenwerfers would not be personally liable for it, and future efforts to collect the debt would be void . Unfortunately for the Bartenwerfers, Buckley objected to discharge of the debt under Section 523(a)(2)(A) of the Code, which reads, in pertinent part: “A discharge [under the Code] does not discharge an individual debtor from any debt for money to the extent obtained by … false pretenses, a false representation, or actual fraud . ”

After a trial, the bankruptcy court held that the debt to Buckley was non-dischargeable, and the court imputed David’s intent to Kate because the two had formed a legal partnership on the house project . The bankruptcy appellate panel reversed on the issue of Kate’s liability After some procedural wrangling, the case came to the Ninth Circuit, which affirmed the original bankruptcy court ruling, meaning that Kate could not discharge the debt . The United States Supreme Court granted certiorari to resolve the issue .

Writing for a unanimous court, Justice

Amy Coney Barrett focused on the text of Section 523(a)(2)(A) and found its application straightforward . Justice Barrett reasoned that the use of the passive construction in the statute (“to the extent obtained by”) trained the reader’s attention to an event, not to a designated actor Justice Barrett then observed that fraud—both statutory and common law—allowed for the misconduct of David to be imputed to Kate since they were partners in the underlying venture .  Justice Barrett brushed aside Kate’s efforts to engage the court in a textual analysis more favorable to her position .

Seeking safe harbor, Kate’s advocates argued that liability for her would be inconsistent with bankruptcy’s “fresh start” policy Justice Barrett rejected this for two reasons . First, she noted that while bankruptcy is intended to provide relief for honest but unfortunate debtors, it also serves other ends Second, it was underlying state law, not bankruptcy law, which made Kate liable for David’s fraud .

Bartenwerfer illustrates the Court’s tendency in bankruptcy cases to reach results that, as Justice Barrett put it, are “plainly expressed by the text and ordinary tools of interpretation . ” The semantic canon on display was the “passive voice” construction . Justice Barrett read Section 523(a)(2)(A)’s use of the inert phrase “obtained by” to signal the irrelevance of a specific actor Consistent with this textualist stance, Justice Barrett expressed strong skepticism toward Kate’s policy argument, describing it as a “last ditch effort” that “earns credit for color but not much else . ”

Beyond what it signals about the Court’s preferred interpretive methodology, Bartenwerfer makes clear that in joint dischargeability cases involving agency or partnership relationships, the “empty-head, pure-heart” excuse won’t work for debtors like Kate . This is a welcome result in light of Section 523(a)(2)(A)’s clear language and the legal context of common law fraud involving parties with fiduciary or confidential relationships . Bankruptcy judges should appreciate having this issue settled just as consumer bankruptcy filings begin