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In Court

Right Up His Alley

Professor Kent Greenfield makes unusual move in upcoming Supreme Court Case.

       
BC Law Professor Kent Greenfield 

Observing that a case heading for the US Supreme Court this fall was part of a trend involving businesses asserting a religious right to discriminate, a Boston College Law School expert in such matters was quick to respond.

Professor Kent Greenfield, in concert with a frequent collaborator and two students, submitted an amicus brief in 303 Creative LLC v. Elenis, which raises corporate and First Amendment rights issues similar to those addressed in two other high-profile Supreme Court cases of the past decade about which he has written: Burwell v. Hobby Lobby Stores in 2014, and Masterpiece Cakeshop v. Colorado Civil Rights Commission in 2018.

303 Creative revolves around a website design company’s refusal to create a wedding website for same-sex couples. The company is a one-women shop, run by a designer named Lorie Smith. Smith argues that her political and religious beliefs should exempt her from Colorado’s requirement that she not discriminate on the basis of sexual orientation.

More than 75 groups have submitted briefs in support of the one side or the other in the case, from the Thomas More Law Center for the web company to Public Citizen on Colorado’s side. For his part, Greenfield (with colleague Daniel A. Rubens of Orrick Herrington and Sutcliffe), took the unusual step of filing in support of neither party.

The reason, Greenfield explains, is that his brief is a departure from the others in its focus on his longtime scholarly study of corporate “personhood,” as illuminated in his 2018 book Corporations Are People Too (And They Should Act Like It). Greenfield’s unique take is that the entire case should be thrown out, or sent down to lower courts for further analysis. His brief argues that the web company’s claims are based on the assumption that the designer and the company are the same. And because the company is legally and constitutionally distinct from Lorie Smith, the Court should not assume that the company may claim Smith’s beliefs as its own.

Greenfield has long championed the idea that companies are distinct from their shareholders and investors. “They are not the same for the purposes of corporate law, and they should not be the same for constitutional law,” he writes. “The Court should not distort constitutional law by ignoring a fundamental principle of corporate law.”

In other words, Smith cannot have things both ways. Someone who has created a corporate arrangement as a means of carrying out business, Greenfield contends, “does not have the choice of disregarding the corporate entity in order to avoid the obligations that the law lays on it for the protection of the public.” Greenfield says his suggested outcome — a decision by the Court not to decide — might be a compromise outcome that some justices on the Court might prefer.

While most friend-of-the-Court briefs are filed on behalf of businesses, non-profit associations, or groups of scholars, Greenfield’s brief is filed in his own name. His take on the case is distinctive enough that, in his words, “I thought I would let my ideas rise or fall on their own merits, rather than on the number of signatories we could gain.”

He was assisted in the writing and research of the brief by two students who had just completed his 1L constitutional class, Therese Juneau and Cory Greer. “We could not have done it without them,” Greenfield says. “They jumped in at the last minute to help, at the highest level of professional competence. I was lucky to have them on the team.”