“I go to a wedding website,” Sotomayor proposed to Waggoner. “It’s something that I send, meaning you, your client, I send it to my family and friends or Lilly and Luke send it to their family and friends. You don’t send it. They go to this website. You’re not inviting them to the wedding. Lilly and Mary are. So how does it become your message?”
Justice Ketanji Brown Jackson raised the hypothetical of a photography business in the mall that wants to shoot particular Santa scenes with only white children to create an “authentic” theme for the “It’s a Wonderful Life” film.
Justice Elena Kagan raised the hypothetical of selling the same exact website to a heterosexual couple and a same-sex couple — and a gay couple walking in and asking for a “God blesses this union” placed on their website.
Arguing for Colorado, Olson warned against siding with 303 Creative.
“The free-speech clause exemption the company [303 Creative] seeks here is sweeping because it would apply not just to sincerely-held religious beliefs, like those of the company and its owner, but also to all sorts of racist, sexist, and bigoted views,” he said.
In agreement, Brian H. Fletcher, the deputy solicitor general for the Department of Justice, said of Waggoner’s argument: “It means that any provider of expressive services is entitled to put up a sign saying we do not serve people with particular characteristics whenever they believe that serving those people would change their message.”
In her rebuttal, Waggoner emphasized the root of her argument.
“One need not agree with a particular belief to affirm that law-abiding people have a right to speak their conscience, including on a controversial subject like marriage,” she concluded. “And that noble principle is rooted in love of neighbor, extending the same rights to others that we want for ourselves.”
She added: “This right to be free from government coercion of speech is also foundational to our self-government and to the free and fearless pursuit of truth.”
Smith’s case is similar to 2018’s Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which a bakery rejected making a cake for a same-sex wedding because of its owner’s religious beliefs. The Colorado Civil Rights Commission argued that this was an instance of unjust discrimination, but the Supreme Court ruled the commission “showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating” the owner’s objection.
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