When you need to fire the lawyer in your free speech case
The attorney for 303 Creative was unable to articulate any limiting principle for a free-speech ruing in favor of turning away same-sex couples.
Summary: The attorney for 303 Creative, Kristen Waggoner, made a free-speech claim for her client to be able to refuse same-sex weddings, but couldn’t articulate a limiting principle or rule out unforeseen outcomes on civil rights that could result from the decision.
If you were listening through the nearly three hours of oral arguments yesterday before the U.S. Supreme Court in the 303 Creative case (and I did, so you wouldn't have to), you might have come away with the impression the lawyer making the free speech claim on behalf of her client seeking to refuse to serve same-sex weddings wasn't exactly making a winning argument.
That's because she was bad. I wonder if the petitioner in this case, Lorie Smith of 303 Creative LLC, a Colorado web designer seeking to put up notice on her website she won't do work with gay couples on their weddings, isn’t thinking the same thing about her lawyer right now, and a little too late now that the case is closed.
Kristen Waggoner, general counsel for Alliance Defending Freedom, was under repeated questions unable to articulate any limiting principle for the free-speech carve-out in Colorado civil rights law she was seeking on behalf of her client. It was at least on one occasion when she entirely sidestepped the question after being asked how far the free-speech claim should go, then continued to refuse to answer when a justice interrupted and redirected her to respond.
Not having a limiting principle isn't exactly an automatic loss as part of a legal argument per se. Coupled with that, however, Waggoner came off as cold and unfeeling, to put it nicely, in response to hypothetical questions from Ketanji Brown Jackson about a photoshop in a mall that wants to recreate Christmas photos with Santa and children in the style of "It's a Wonderful Life" from the 1940s, therefore would refuse to take photos of children of color consistent with images at the time. Waggoner conceded under the ruling she wanted "there are difficult lines to draw and that may be an edge case," refusing to turn down an outcome of a ruling in her favor way more outside of the mainstream.
Waggoner made no attempt to say such a ruling could be cabined to small business owners uncomfortable with doing creative work for same-sex weddings. Her response all but sounded a siren a win for her client would have sweeping implications for civil rights laws in any number of ways pertaining to race, gender and religion, just as opponents of 303 Creative have warned. Waggoner’s responses also made her come off as unprepared, which is striking when you consider Alliance Defense Freedom has been filing one lawsuit after another for more than a decade to find a vehicle for a Supreme Court decision granting a carve-out to civil rights laws for refusals to engage in same-sex weddings.
Instead of articulating a limiting principle, Waggoner sought to qualify her argument by saying the ruling she was seeking would also protect other business owners, such as a gay web designer who didn't want to facilitate a wedding over which that business owner had objections. That makes no sense. Is Waggoner suggesting gay people are so averse to entering into a different-sex relationship they would want nothing to do with a different-sex wedding whatsoever? Maybe she's suggesting a gay website designer could also have deeply held personal objections to serving a same-sex wedding, which would be quite a personal contradiction.
It took the conservative justices on the court, who ultimately likely get their way with a 6-3 majority, to redirect the conversation as 303 Creative seeking a refusal of a particular kind of service rather than refusing a service to a particular kind of person. Amy Coney Barrett asked hypotheticals about a straight couple wanting on their website a message about gender being irrelevant to their love, as well as a gay web designer being asked by a college club against same-sex marriage to produce a website based on that viewpoint. Brett Kavanaugh pointed out the distinction being the inherent creative aspect of web design in comparison to other wedding occupations, such as a caterer. Samuel Alito asked a bizarre question, a follow-up in response to Jackson's hypothetical, about a black man as a mall Santa being able to turn away a child dressed in a Ku Klux Klan uniform. It's clear the way these justices are leaning and where the outcome of the case may eventually be.
The other lawyers arguing against a ruling for 303 Creative, in contrast to Waggoner, seemed more effectively able to respond more to questions both about hypothetical scenarios and relevant precedent. Colorado Solicitor General Eric Olson was able to speak authoritatively on legal precedent in the past 150 years on public accommodations where speech is the product. U.S. Solicitor General Brian Fletcher, representing the Biden administration in the case, was able to throw Neil Gorsuch's questions on Masterpiece Cakeshop back at the justice by pointing out the decision found discriminating against gay people in public accommodations would be unlawful.
They knew their stuff. Both lawyers spoke effectively about why the 303 Creative case is like the 2006 decision in Rumsfeld v. FAIR, which held colleges had no First Amendment right to bar military recruiters from campuses, and why the case was totally unlike the 1995 Hurley decision, which found organizers of a St. Patrick’s Day parade had a First Amendment right to bar a gay contingent. The expertise presented on legal precedent will make it difficult for the conservative justices to rule the other way.
I have to say these lawyers may have won me over as well, which is a testament to their arguments because I have been on the fence about this litigation for some time. The 303 Creative case, in many ways, has been conundrum for me because free speech is an important value for the Weekly Dystopia, but I came to start this publication after dedicating 15 years of my life as a reporter for at an LGBTQ newspaper and writing about civil rights cases, much like one, affecting civil rights of LGBTQ people.
So I'm very sensitive about the claims on both sides. I'm not eager to damn anyone's soul under their religious views by forcing to participate in a same-sex weddings. Yet at the same time, one of the foundational pillars of the Supreme Court's decision for same-sex marriage was the dignity of same-sex couples. Living in a world where business could openly say they don't facilitate same-sex weddings would be a serious blow to dignity, not just to gay people seeking a website for a wedding announcement, but for anyone who would come across that notice.
That's a key reason why we have civil rights laws. It's for the dignity of society as whole, not just the enumerated classes in those statutes. We've had First Amendment exemptions before, but never the carve-out 303 Creative is seeking, even though societal acceptance of same-sex marriage admittedly is a newer concept and has unique religious implications.
Another key moment in oral arguments came during Eric Olson’s time at the stand. Sonia Sotomayor asked if a ruling for 303 Creative would be the first time in the Supreme Court's entire history it had found a business open to the public would be able to refuse a customer based on an inherent characteristics. Olson, right as his time came to an end, responded succinctly and effectively with one word: "Yes."
So institutionalism in this case appears to fall on the side of allowing to stand intact a civil rights law denying a web designer from putting up a notice signaling "no gay weddings." A ruling in favor of 303 Creative may seem like a victory for free speech, but the cost would be high. With no limiting principle in such a ruling, the destructive force may disrupt the evolution of civil rights laws as they co-exist under the First Amendment, tearing apart a fabric that has kept our diverse American society together for decades.
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