Hila Keren (Southwestern Law School) has posted 303 Creative v Elenis: What's Wrong with Preemtive Litigation of Discrimination on SSRN. Here is the abstract:
This Article sounds the alarm that 303 Creative v Elenis stands to deprive countless people of dignified participation in the marketplace. In this pending case, the Supreme Court considers granting private providers broad free-speech exemptions from nondiscrimination laws. Worse, the case was litigated preemptively, only against the state — eliminating those who would be most impacted by it from the adjudication process. Offering a novel analysis of the oral arguments, this Article shows how this has already created a skewed discussion and now threatens to cause permanent damage. At this critical moment, it is urgent to introduce what was sorely missing from the case’s record, giving voice to those left out of the courtroom. This Article thus shows how 303 Creative could generate market humiliation — a corrosive relational process recognized by multiple studies. As this Article explains, market humiliation is a wrongful behavior carrying severe consequences. Therefore, no court should permit discrimination without taking market humiliation (properly understood) into account.