“She believes same-sex marriages to be false,” Ms. Waggoner said of her client.
There were some points of agreement during the argument. Off-the-shelf products, even ones that express a message, must be sold to everyone, both sides agreed. Software that merely provided a template, Ms. Waggoner said, does not express the designer’s views about same-sex marriage.
“If it’s a plug-and-play website where the couple, for example, is putting in their names and using their website, then you don’t have compelled speech because you don’t have a speech creator,” she said.
Both sides also seemed to agree that Ms. Smith was free to put a standard statement on all of her wedding websites along the lines of this one, proposed by Justice Alito: “Made with love by Amber, who believes that a valid marriage is a union between one man and one woman.”
Eric R. Olson, Colorado’s solicitor general, said that was lawful so long as it was on every website, adding that “a website designer like that will lose a lot of opposite-sex couples as potential clients as well because they don’t want to be seen with that message.”
Justice Alito said the basic concession was a significant one. “You’re making a tiny sliver of an argument,” he told Mr. Olson.
Justice Elena Kagan said she did not know how to think about a similar hypothetical situation that seemed to undermine some of the distinctions the court was drawing. What if, she asked, a web designer made the phrase “God blesses this union” a standard part of every wedding website.
Those identical words, Justice Kagan said, could imply different messages in different contexts.
Ms. Waggoner, Ms. Smith’s lawyer, said “context changes meaning,” adding: “‘My body, my choice’ means something different to an anti-vaxxer or a pro-abortion proponent.”
