“A gay couple walks in and says, I’d like the standard website, everything standard, but I want something in addition to that, I want the homepage, the website, to say ‘God blesses this union,’ and Ms. Smith says this is a problem,” Kagan said. “I don’t know, I think that is kind of different.”
Olson acknowledged that.
“Where you have direct speech, it does get trickier,” he said.
But Justice Ketanji Brown Jackson tried to raise the specter of the slippery slope nature of this case by posing another hypothetical story in front of the lawyers on both sides. A photographer in a mall wants to take old timey photos of Christmas scenes from the 1940s and 1950s and in those scenes, he only wants to take photos of white children and not kids of color. Would that photographer be allowed to do that?
Smith’s lawyer, Kristen Waggoner, from the Alliance Defending Freedom, said she didn’t think that case represented a “message,” it represented the status of someone who was trying to buy a good or service.
“Is the objection they’re asserting part of a message?” Waggoner said. “I can say that when there is an overlap between message and status, message does win.”
Justice Neil Gorsuch tried to pick apart Olson’s argument that a press release writer or a freelance speech writer could have more protections than a business like Smith’s.
“This individual will create all manner of websites, just not one that requires her to write words on a page … that celebrate a particular thing that she finds offends her religious beliefs,” Gorsuch said. “What she has said I will not sell to anyone a message that I disagree with as a manner of my religious faith just as a speech writer says or the freelance writer says I will not sell to anyone a speech that offends my religious beliefs.”
In 2017, justices took up a similar case
The court agreed to take up one question applied to Colorado’s case: Does applying a public accommodation law to compel an artist to speak or stay silent violate the free speech clause of the First Amendment?
In 2017, justices took up a similar case that pitted a Lakewood bakery called Masterpiece Cakeshop against a gay couple in Denver who asked for a custom wedding cake and was denied. The court declined to definitively answer the question at hand, though, so many legal experts say the justices took up the 303 Creative case to come to some resolution once and for all.
Colorado Attorney General Phil Weiser, whose team is arguing on behalf of the state of Colorado’s Civil Rights Commission, has maintained that this website designer case is fundamentally flawed because, as opposed to Masterpiece Cakeshop, there is no live dispute behind it — Smith has not been asked by a same-sex couple to design a wedding site.
“We would appreciate the court waiting for another day when there is an actual person with actual facts before the court wades into what we believe is a critical issue that has far-reaching significance,” he said. “And if the court concludes that in this case, we will consider that dodging a bullet.”
Smith has said she sued because Colorado’s civil rights laws have kept her from fulfilling her dream.
“I create one-of-a-kind art, whether that be graphics, logos, websites. Everything that I create is unique and one of a kind,” she said. “And that’s what I love about my job. And I do want to design for weddings. I have wanted to do that ever since I was a little girl in my mom’s store.”
After Monday’s arguments, Weiser said all of the hypotheticals posed by justices may not be helpful since the question they agreed to answer in the 303 Creative case is relatively simple.
“The court is wise when it doesn’t get too far over its headlights imagining facts that aren’t before it,” he said in an interview after the arguments on the steps of the Supreme Court building. “All the court is considering is a request for an exemption for an entire category. You don’t have to make websites for same sex couples is what is being asked here. We think that would be a grave mistake and would create room for lots of exemptions that could deny people access to the marketplace based on who they are.”
Weiser said that if the court sides with Smith it would be the first chip away at the nation’s various public accommodations laws that have been shielding protected classes — including LGBTQ people — for years.
“An individual could say because I’m offering some product or service with an expressive element, I get to exclude, and you can fill in the blank here, it could be gays and lesbians, it could be Jews or Mormons or it could be African Americans,” he said. “That would be a revolution in our law.”
Justice Sonia Sotomayor acknowledged it during oral arguments, as well.
“This would be the first time in the court’s history that it would say that a commercial business, open to the public, serving the public, that it could refuse to serve a customer based on race, sex, religion or sexual orientation,” she said.