How the Antidiscrimination Law of Commercial Transactions Really Works

A variety of businesses now cite 303 Creative when seeking First Amendment protection for their refusal to serve certain customers based on those customers’ protected class status. How this litigation will play out remains to be seen. But future courts need not, and should not, repeat the 303 Creative Court’s misunderstanding of how the antidiscrimination law of commercial transactions actually works. Part I of this Essay explains the Court’s longstanding understanding of the antidiscrimination law of commercial transactions, and then describes the Court’s failure to engage with this precedent in 303 Creative.

Part II then identifies the 303 Creative decision’s repeated mischaracterization of the antidiscrimination law of commercial transactions as addressing the content of a commercial product or service—when that law instead focuses on the protected class status of those seeking to buy those products or services. Part III considers how unusual features of the dispute in 303 Creative may have contributed to, or exacerbated, the Court’s misunderstanding of the antidiscrimination law of commercial transactions. The Essay closes by noting how the Court’s misunderstanding of how the antidiscrimination law of commercial transactions really works likely contributed to its ultimate constitutional holding—and that this misunderstanding need not, and should not, extend to any other case.