The decision today in 303 Creative LLC v. Elenis wasn’t about that at all. In this 6-3 decision,
the Supreme Court held that the government cannot force you to say something that violates your religious beliefs.
The Supreme Court's ruling in 303 Creative is about the First Amendment, not ruling against "LGBTQ protections" or for discrimination.
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She appealed to the Supreme Court. The Supreme Court held 6-3 last year that both dismissals were wrong. They held that the Commission’s insistence that she perform services in violation of her religious beliefs, and insistence that she refrain from stating that she wouldn’t, were in violation of
her First Amendment rights.
In short, she won.
The case was then remanded back to the lower courts to work out the details. It came back to a different district court judge. (The first judge, a former bankruptcy judge, had taken “Senior” status while the case was on appeal. That’s a gravy train for federal judges where they get full pay, the same plush courtrooms and chambers, a full complement of law clerks to kiss the back of their robes, and invitations to the right (er, left) cocktail parties. But they work just part-time by taking on only the particular cases they want. No, this “job” is not available for you.)
The details remaining to be worked out on remand to the district court were the exact language of the court’s order, and the payment of attorney fees. The Commission wanted a cramped order with little precedential significance and minimal further embarrassment to them. Smith of course wanted a broader order protecting her against infringements on her First Amendment right to exercise and state her religious beliefs.
This week, the new judge sided with Smith. The court’s order states:
“ORDERED that the First Amendment’s Free Speech Clause prohibits Colorado from [compelling Smith] to create custom websites celebrating or depicting same-sex weddings or otherwise create or depict original, expressive, graphic or website designs inconsistent with her beliefs regarding same sex marriage.”
Then there was the attorney fees issue. The civil rights laws provide for an award of attorney fees and costs to a prevailing plaintiff. Smith was the prevailing plaintiff, though she had to go all the way to the Supreme Court to become one.
The Commission argued that she was actually only a partially prevailing plaintiff because she didn’t win on every single claim she made. Accordingly, the Commission contended, attorney fees should be prorated.
The district court rejected the Commission’s argument, and instead correctly held that “prevailing” in this context simply means the side that basically won, even if they didn’t win on every single claim. Attorney’s typically throw in lots of claims of dubious merit in a lawsuit. The fact that some get thrown out along the way doesn’t mean their client isn’t the prevailing party at the end of the day when they are awarded the remedy they seek.
The judge concluded with an invitation to Smith’s attorneys to file a motion for their costs and attorney fees.
Those costs and fees are likely to be into seven figures, since they include the original district court proceedings, the appeal to the appellate court, the appeal to the Supreme Court, and the current remand to the district court.
That is all good news. Smith is now playing with the house’s money. The bad news is that the “house” is, at the end of the day, the taxpayers of the State of Colorado.