1983—Barely four months after reiterating that abrogation of the state’s common-law sovereign immunity is a matter for the legislature, not for the courts, the Oklahoma supreme court (in Vanderpool v. State) abolishes Oklahoma’s sovereign immunity. The majority explains that it is imposing “what we perceive to be the more just and equitable view.”
2018—Federal district judge Timothy J. Corrigan rules in Adams v. School Board of St. Johns County that a Florida school board’s policy of assigning bathrooms by sex violates the statutory (Title IX) and constitutional (Equal Protection Clause) rights of a transgender student who identifies as male.
2021—In a stunningly stupid analysis of economic competition (in 303 Creative LLC v. Elenis), Tenth Circuit judge Mary Beck Briscoe opines that a company, 303 Creative, that proposes to offer “custom” wedding websites somehow must have something “similar to a monopoly” in its product market: No matter how intense the competition is in the market for “custom-made wedding websites,” 303 Creative is by definition (as Briscoe misunderstands things) the only participant in the market defined as “custom-made wedding websites of the same quality and nature as those made by [303 Creative].”
Briscoe’s bonkers analysis comes not in an antitrust case but in a case addressing the question whether Colorado may compel a company to offer wedding websites that “celebrate same-sex marriages” if it is going to offer wedding websites that celebrate male-female marriages. Briscoe acknowledges that the creation of wedding websites is “pure speech” and that Colorado is seeking to impose a “content-based restriction” that would compel 303 Creative to utter speech celebrating same-sex marriage. But because “LGBT consumers will never be able to obtain wedding-related services of the same quality and nature as those that [303 Creative] offer[s],” Briscoe concludes that the state of Colorado has a compelling interest in coercing 303 Creative to engage in such speech.
As Chief Judge Timothy Tymkovich observes in dissent, Briscoe’s ruling, “[t]aken to its logical end, [would mean that] the government could regulate the messages communicated by all artists, forcing them to promote messages approved by the government in the name of ‘ensuring access to the commercial marketplace.’” (Emphasis in original.)
In June 2023, the Supreme Court, by a vote of 6 to 3, will reverse the Tenth Circuit. No justice in the dissent will embrace Briscoe’s analysis.