Four takeaways from Monday’s key free speech case at the Supreme Court
Nicole Russell
On Monday morning, the Supreme Court heard oral arguments in a vital free speech case, 303 Creative v. Elenis. At issue is whether or not Colorado’s public accommodation law, its Anti-Discrimination Act, can compel Lorie Smith, the website designer behind 303 Creative, to create website designs celebrating gay marriage, even though doing so would go against her sincere religious beliefs. Here are four takeaways.
1. Justices fleshed out arguments with a lot of hypotheticals
One of the ways the justices decide how to rule on a case is to think of myriad ways the law could apply to other similar scenarios. To that end, several justices threw out multiple hypotheticals that were almost comical, if they weren’t about something as important as free speech (although laughter could be heard via the audio on occasion). These hypotheticals ranged from the weird, such as when Justice Samuel Alito mentioned an Ashley Madison profile, to the bizarre: Justice Ketanji Brown Jackson dreamt up a hypothetical about It’s a Wonderful Life having an all-white Christmas scene. Before that, she mentioned a racially motivated Santa Claus.
These hypotheticals appeared to force Kristen Waggoner, the attorney at Alliance Defending Freedom arguing Smith’s case, to strengthen her argument and explain why her client is correct.
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2. The case was about only one issue
There were two main issues the justices returned to in their questions: whether or not Smith’s website designs were unique and count as “speech.” And whether or not in deciding not to celebrate same-sex marriages, Smith was discriminating against the couple based on their message, a choice the First Amendment would protect, or the couple’s status as gay, which the First Amendment would not protect.
Thomas asked Colorado Solicitor General Eric Olson about the heart of this case. “The complicating fact here is this is not a hotel, or a restaurant, a riverboat, or a train. I’m interested in the intersection of the public accommodation law and speech,” Thomas said.
3. Colorado’s law is the problem, not Smith’s website guidelines
Several justices pointed out that Colorado’s broad public accommodation law seemed to be the problem here, not Smith’s religious beliefs and website. Alito asked about Obergefell v. Hodges, “Do you think it’s fair to equate opposition to same-sex marriage with opposition to interracial marriage?” Olson replied, “Yes, in how the law applies.” Later, Justice Neil Gorsuch slammed the state of Colorado for the way it used its law to harass baker Jack Phillips, whose case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, is so similar to Smith’s. The brief exchange went like this:
Gorsuch asked Olsen: “Mr. Phillips had to go through a reeducation program, did he not?”
Olsen: “No, it was a training to educate him about Colorado law.”
Gorsuch: “Some would call that a reeducation program.”
4. Smith’s case is stronger than Colorado’s
The justices really peppered Waggoner with questions while presenting her case, but she continued to make a clear, steady argument. Namely, that Smith has a right to create websites that align with her beliefs and that refusing to do so should not be a violation of Colorado’s law but rather protected by the First Amendment. “Compelled speech crushes the speaker’s conscience and is the tool of authoritarianism, and this court has never allowed it,” Waggoner said in her closing argument.
Based on these arguments, I’d expect a ruling in favor of Smith.
Nicole Russell is a contributor to the Washington Examiner’s Beltway Confidential blog. She is a journalist in Washington, D.C., who previously worked in Republican politics in Minnesota. She is an opinion columnist for the Fort Worth Star-Telegram.