Law at the End of the Day: Selling Creativity in the Higher Law of Markets in Religious Scruples: 303 Creative LLC v. Elenis (Docket 21-476; U.S. Supreme Court 2022) Oral Argument transcript 5 December 2022

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Some societies are driven to suicide or madness; some can be manipulated there; and others, like ours, experience a sort of madness as suicide as a consequence of the hubris of its great protagonists. Here hubris is understood in its more ancient sense of both "wanton violence, insolence, outrage," and more pointedly, of a presumption toward the gods." It is, in each of these manifestations, a form of art. This is an art form in which the creative process--of imposing meaning and rationalizing the Dionysian passions (including religious passion)--is expressed, from the passion of the plaintiff to the judgment of a court of human or divine law.

The great germinal treatment of hubris in the functioning of the classical (mother of the) liberal democratic state might be found in Sophocles' Antigone, part of the great Oedipus cycle In that rendition, Oedipus's sons, Eteocles and Polynices, having gone to war over the right to rule Thebes, both die in the struggle. Creon, succeeding to the throne decrees that while Eteocles would be accorded full burial rites, Polynices would not. Their sister, Antigone, defies Creon and asserting the superiority of divine law to that of Thebes. Creon orders here buried alive; but then relents only to find Antigone committed suicide in her tomb. Hearing of her death, Creon's son, Haimon, in love with Antigone, commits suicide; Creon's wife, Queen Eurydice despondent after news of her son's death, also kills herself, leaving Creon to relish the majesty of law(s).

In this century, and in our Republic, a similar struggle now appears to be marching toward the inevitable, flummoxed by the irreconcilable, and unwilling to bend rather than break. The protagonists now are the incarnations of Rights--Sexual, Markets, and Religious. Each has evolved into titanic (I use that term in all its senses) and all embracing principles, each of which unable, given their natures, to acknowledge either beginning or end. At issue is primacy--among the three; to that end principles of accommodation either serve that objective or serve as a barrier that must be overcome. That overcoming can be undertaken directly (by overturning cases) or indirectly by stripping law or judicial principle of one meaning and substituting another. While this tends to be the stuff of American constitutional jurisprudence for at least a century, the deployment of discourses of hubris add intensity that moves the project from arguing over the plausible to a higher stakes zero sum ideological contest. What follows is a stuff of constitutional law in which the power politics of constitutional principle is undertaken on the battlefield of semiotics, but one in which all sides bear the risk, at the limits, of mutual destruction of the edifice that makes these contests possible.

In the current incarnation, this confrontation was nicely summarized in the cert petition in 303 Creative LLC v. Elenis (Docket 21–476); decisions below: 303 Creative LLC v. Elenis, 385 F. Supp. 3d 1147 (D. Colo. 2019), aff’d, 6 F.4th 1160 (10th Cir. 2021).

Artist Lorie Smith is a website designer who creates original, online content consistent with her faith. She plans to (1) design wedding websites pro- moting her understanding of marriage, and (2) post a statement explaining that she can only speak mes- sages consistent with her faith. But the Colorado Anti-Discrimination Act (CADA) requires her to create custom websites celebrating same-sex mar- riage and prohibits her statement—even though Colorado stipulates that she “work[s] with all people regardless of ... sexual orientation.” App.53a, 184a.

The Tenth Circuit applied strict scrutiny and astonishingly concluded that the government may, based on content and viewpoint, force Lorie to convey messages that violate her religious beliefs and restrict her from explaining her faith. The court also upheld CADA under Employment Division v. Smith, 494 U.S. 872 (1990), even though CADA creates a “gerry- mander” where secular artists can decline to speak but religious artists cannot, meaning the government can compel its approved messages. The questions presented are:

1. Whether applying a public-accommodation law to compel an artist to speak or stay silent, contrary to the artist’s sincerely held religious beliefs, violates the Free Speech or Free Exercise Clauses of the First Amendment.

2. Whether a public-accommodation law that authorizes secular but not religious exemptions is generally applicable under Smith, and if so, whether this Court should overrule Smith.

In granting cert, the Supreme Court strategically hobbled the consideration by limiting consideration "to the following question: Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment." That solves one problem--the confrontation with the Supreme Court's transformation free exercise jurisprudence of the last several terms. But it creates another--by siloing the issues to speech, it distorts both analysis and whatever emerges as the principles for managing the common economic space among people who increasingly tend to dismiss the primacy of the ideology of markets in favor of other ideologies on the basis of which a state can be organized. Neither market, nor religion, nor the performance of self can long occupy its own space, where it may be privileged as supreme without inevitably crashing on the superiority of another in its own sphere. In a jurisprudential imaginary grounded in the supremacy of privilege, the management of its collisions will inevitably produce both politics, and tragedy. And out of the union of both--strategy.

And thus the American Creon--so intent on the siloing of its own machinations that it will remain unaware of the comprehensiveness of the tragedy that inevitably follows its pride.

CHORUS: Ah! look where sadly comes our lord the King,
Bearing upon his arm a monument—
If we may speak it—of no foreign woe,
But of his own infirmity the fruit. . .
Head of CHORUS: . . . High boastings of the proud
Bring sorrow to the height to punish pride:—
A lesson men shall learn when they are old. (Antigone)

Perhaps,

These fissures are to some extent made evident in the give and take of the oral argument in the case, held on 5 December 2022. The Transcript may be accessed HERE and follows below. The Recording may be accessed HERE. Both are available for download HERE.

00:00:00		we'll hear argument first this morning, in case 21 4 76 303 Creative LLC versus Elaina's MS Wagner
00:00:15		Mr Chief justice an d may it please. The cou rt Laurie s mith blend s art with technol ogy to create custom m essages usi ng words and gra phics. She serves all people deciding wh at to create based on the message, no t w ho requests it, But Colo rado declares her speech a p ubl ic accommodation and in sists tha t she create and speak messages tha t violate her cons cience. This court reject s such government co mpelled speech in Hurl ey. The court conside red a very si milar issue, as king t wo questions is thei r sp eech and is th e message affected? That test is ea sily met here . Colorado agrees. Miss Smit h creates s peech and the law undeniably affects her mes sage. She's not asking th is court to create new law, but to ap ply it s preced ent. Colorado firs t says th is case is about a sale, it's no t just abo ut a sale. The stat e forces Miss smi th to create speec h not simp ly sell it. Next Co lorado s ays it can comp el speech on the same topi c, but Mis s Smit h believes opposite marr iage, honor scripture and sa me marriage contradi cts it. If the go vernment can labe l this speech equi valent, it can do so for any speech whether r el igious or political under Colorad o's theory , jurisdict ions could force a democrat pub licist to write a republi cans pre ss release, Colora do's last resort is to ar gue that it can at least com pel the same e xpression, But even the same e xpression can mean dif fe rent things like a black sc ulptor. Carves a cu stom cr oss to celebra te a catholic b aptism but no t an Church rall y if the governm ent may not fo rce motorists to display a motto schoolchildren to say a pledge or pa rades to include banners. Colorado may not force MS smith to create and speak messages on pain of investigation, fine and re education. I welcome this court's questions. Show Less Text
00:02:11		Uh, counsel, would you spend just a few minutes on whether or not this, uh, your cases right.
00:02:20		Sure. Thi s court h as considered pre enforce ment challenges b efore and in this co ntext. It has looked at the facts. This is one of t he strongest pre enforcement cases I think that this cour t has considered and that the parti es have stipu lated every m essage that MS smith wo uld create has a u nique customized messa ge then that it celebr ates a wedding a nd celebrates a marria ge. It's a lso difficult to imagine a scenari o where there isn't a more ag gressive e nforcement history by c olorado Miss smith speech has been chilled for six years. She has bee n unable to sp eak in the marketplace . She's ready to do so tod ay and she's ready t o post her website statement today, which makes this case ripe Show Less Text
00:03:03		unless you're no t through with tha t. Sor ry. Um, can I give you a hypothetical? It 's not really a hypothetical because I happ en to have two clerks in my chambers this year who ar e e ngaged. So and looki ng at this case and prep aring th is case, I looked at their websites. An d so the hypothetical is about like I 'm going to cal l it the standard w ebsite, they bot h have their names o n it, the date of the we ddin g, a picture of the couple. Then there are a bu nch of pla ces that you can click t o and one is um, the s chedule of events and t he other is travel and hotel arrangem ents. And another is favorite thi ng s to do in t own while you're here. A nd another is re gistry. So tha t's what most websites look like. Yeah. And they're not part icularly ideological and they're not par ticular ly religious, t hey'r e not par ticularly anythin g alright. And uh , and then there's a tag lin e just l ike the tag line in this case about sort o f who cre ated the websit e or whose g raphics and design and typefaces a nd so forth, were used in the webs ite. And so one of t hem says, I'm go ing to s ubstitute a woman's nam e just to n ot advertise. B ut one of th em says Mad e by Love with Amber by Ma de with Love by Amber. Right? It 's actually bigg er than the 303 tagl ine. Um, so I gu ess what I wann a know i s suppos e Amb er wakes up tomorrow morning and says, you know what, I don't want to do those websites anymore for same couples. Could she do that Show Less Text
00:04:43		in terms of creating new websites?
00:04:45		You know, like she's providi ng these templ ates and she ha s all these d esigns an d, and, and uh, typ efaces. And, and that's wh at people use wh en th ey create their own website because they give her the date and th ey give her the, yo u know, the, the list of hot els and so forth . So can A mber wake up and just say no more gay couples. Show Less Text
00:05:12		She can't say no more gay couples . But a speak er does h ave the ability to de cide not to speak under the law. But I think the hypot hetical that you're menti oning is assuming that it's a plug and pla y website, essen tially that the websi te is already made and t hat the speec h creator isn't maki ng any additions t o it. No, no, no. I mean, Show Less Text
00:05:29		you know, just like, I
00:05:31		mean, I have to think
00:05:32		that your client doe s something similar. Y ou have lots of graphi cs, you have, you know, ty pefa ces and, you kno w, maybe, you know, some ar e a l ittle more, uh, you talk to the c lient and some are a little bit less, you talk to the cl ient. But basically, you know, cli ents are coming in and the y're saying, u h, we just want a standard website, yo u know, that tel ls people where to sta y a nd what how to t ravel there and uh, an d you know what ou r favorite things to do are. An d an d the question is, can a website designer say, sorry, that's not my kind of marriage. Show Less Text
00:06:11		The website designer, no
00:06:12		scripture, there's no ideology, There's no nothing there is
00:06:16		ideology. And thi s court has already recogni zed that ther e is ideology and diff erent views on mar riage. And the courts promising Oberge fell is to prote ct those who would believe marriage is between a m an and a woman from ha ving to exp ress a view that violate s our conscience. But Show Less Text
00:06:30		okay, so I think that if I understand you you're saying yes, she can re fuse. Because there's ideology j ust in the fact that it's mike and harry and there's a picture of these two guys together Show Less Text
00:06:43		that is speech You are announcin g a wedding. And if you believe the wedding to be false, then the government would be compelling you to say something t hat you otherwise wouldn't say which makes the c ontent. So it's Show Less Text
00:06:52		really nothing about the conten t of this speech. I me an, it could be mike and Pat and you don't ac tually ev en know whether Pat is a woman or a man. Ther e's really nothing about the content of this speech . Am I right? In your case, you have like, sc ripture examples a nd so that might, you know, be diff erent maybe, but yo u are being fo rthright and say ing it's really not abou t that. It's nothi ng about the content of the spee ch. It's just that the content is being uh whatever the g raphics a nd typefaces an d you know, uh yo u know, which hot els are uh you k now, have be e n reserved for the wedding. It's being used in a same marriage? Show Less Text
00:07:38		No , it's not about the u se it. What is it's about when a person is c reating sp eech? It is What is the mes sage that they are expressing the Hurl ey fr amework ... Show Full Text
00:08:08		So their message is not actually the co nt ent of the w ebsite. I mean this is Justice Kagan 's point . We could have a situation in which the ident ical website is being of fered. One t o harry and an and one to harr y and steve. But everyth ing on th e websi te is exac tly the same. I think I hear you saying Show Less Text
00:08:32		that the message
00:08:33		that the designer woul d be sending wh en she off ered the website to harry an d steve would be d ifferent and contrary to her b eliefs and that. So, so it's it's the i mplicit message that she 's endorsing th at wedding. That's the problem. Show Less Text
00:08:51		No, she's no t, it's not about whet her she's endo rsing it, she's not sp eaking through anything but c reating the sp eech. And when you switch out those names, you're switching ou t the concept a nd the message t hat is actually in the website. Th ink of an example of God bless this marriage. Show Less Text
00:09:06		Suppose that well that's
00:09:07		that's a particula r messag e. Bu t I lo oked and t o your uh propose d website and I turned to page 51, it s ays save the date Li ly and Lu ke November 17, 2017. So wha t's the messa ge i f i t says save the d ate li ly and um Lil lian Lilli an Lillian Marian, what's the message there that's an Show Less Text
00:09:38		invitation to celebrate a marriage. But why
00:09:41		is it your invitation ? I go to a wedding websi te. It's somet hing that I send m eaning you your client s. I send it to my family and fri ends or lily and luke. Send it to their family and friends . Yo u don't send it. Th ey go to this webs ite. You're not inv itin g them t o th e wedding lily and mary are. So how has it become your message in the Show Less Text
00:10:09		same way that it is the message of a gh ost writer who w rites an ano nymous press release or a book? It is still that write r's speech. The wh ole point of the compelled speech doctrine is to ensure that what's the limiting Show Less Text
00:10:20		line of your s of your s. Um Ju stice Kagan asked yo u about another website des igner. But how a bout people who d on't believe in interra ci al marriage or about people who don't beli eve that disabled people should get married? Wh a t's w he re's the l ine I c hoose to serv e wh om I want? If I disagree with thei r pers onal charac teristics li ke race or disabilit y, I c an choose not to sel l to those people this website because it's my speech Show Less Text
00:11:01		Not at all your honor . The Hur ley frame work provides that in a p ublic accommodation co ntext. The firs t thing the court looks at is is the spee ch creator otherwise serving those in t he protected class and ex pressing ot her messages i n the context of race. It's hi ghly unlikely t hat anyone would be ser ving black americans and other capacit ies, but only refusing to do so in an interracial marriage contact, Show Less Text
00:11:24		suppose we agree d th at the web site des ig ner u h could no t re fuse to uh provide that serv ice to a same couple if t he website is of the kind that justi ce Kagan described, Wha t does that say abo ut the particu lar c ase that i s befo re us on stipulated facts? Well, Show Less Text
00:11:53		it would say that the court isn't considerin g those facts becau se that's not this c ase that's presente d to them, but at the same tim e even that website.
00:12:00		So uh what are the differences between, what differences do you see between her hypothetical and the actual case that is before us?
00:12:10		She provided
00:12:10		a number of hypotheticals. So in terms of assuming
00:12:14		the hypothetic al wh ere there is a websit e and basical ly all the website operato r does is to put in t he names of the t wo people who are g etting married Show Less Text
00:12:27		a service that or speech creation t hat MS smith prov ides. But if s he did provide t hat, if it's a plug and play webs ite where the couple for example, is putting in their names and an d using their website, then you don't have compelled speech b ecause you don't have a speech creator. But e ven in the co ntext of putting in name. Sorry, Show Less Text
00:12:45		show me on your website . Sh ow me i n o n the pages of your pe tition for a writ of cer CRE sho w me a page on tha t website that is an endorseme nt of a ma rriage as opposed to the story of a couple. Show Less Text
00:13:05		Well, either one violates the compelled speech. You can show
00:13:08		me a page on your website. It's attached to your petition. I'll start to on page 51.
00:13:16		Pages 53 52 54,
00:13:21		50
00:13:22		five and 56 all represent an invitation
00:13:26		three says our photo gallery
00:13:29		50 four
00:13:30		says funny dating story . How is th at your sto ry, your photo gal lery , It's the coupl e's photo gal le ry. Page 54 is funny dating story, it's their story, not your story. I'm looking at every page and basically it's the s tory of the couple . It's a date on pa ge 51 52 is ou r spe cial day 53 is R. S . V. P. Our photo galle ry 54 is a fun ny dating sto ry. I kee p looking at al l of the moth app s and al l of them relate t o what lily and luke are saying or doing who the y are. Who are their g rooms w ho aren't the re? Who's their brid esmai ds? I don't understand how is this your story? It's their story. If Show Less Text
00:14:23		you're asking whether, first of all , bo ok authors, news paper editors, those who write al l kinds of publication s, maybe writing abo ut someone else's story, but it's still their speech and Show Less Text
00:14:33		they're not public accommodations in the same way.
00:14:36		MS Wagner, can I a sk you a quest ion about a heterose xual coupl e. So in re sponse to j ustice. Sotomayor's questi ons I took i t that your website where you say why a we dding website? Um you go thro ugh and it s eems like careful Miss smit h was careful to s ay things like I f ully customize the look feel theme message, color palettes, et cetera . And then the re's the engagemen t story page a nd inspired by a page inspired by you and written by L ori that captures and conv eys the cherished storybook of your love. So, I wa nt to ask you a hypothetical a bou t a heterosexual cou ple that comes to y our client and their wedding stor y. You kno w, that they wa nt to writ e under the en gagement stor y page goes like thi s, we are both cis g ender and hetero sexual, but that is irrelevant to ou r relationship, which transcends suc h categories. We knew we we re soul mates from the moment that we met and on and on. Would your client publish that site? Show Less Text
00:15:34		Yes, she would publis h the site beca use her obje ction as suming that the m arriage is between a man and a woman, She wou ld publish it and tha t there's Show Less Text
00:15:43		though that narrative I assum e is inconsistent wi th her biblical vi ews about marriage, I'll give you another re late d one. Heter osexual couple come s to her and in the engagement story part writes a story th at goes like this. We met at work. We wer e both married t o other people, but what beg an as late ni ghts at the office quickly tu rned into love after six months, we real ized we could be happ y only wit h each other. So we just started to begin our story t oday got divorced or marry ing e ach other. Does she publish it? I don't Show Less Text
00:16:13		believe that she would I also don't believe that she wou ld embr ace or express a me ssage that would essen tially say it doesn't matter whether there is a marriage between a man an d a woman, she woul dn't create that speech. So Show Less Text
00:16:25		it's about the message and not about the sexuality of the couple that asked her to express it, that matters,
00:16:31		yes. Which is exactly how th e court decided the ca se and Hurley. But it's also in othe r cases as well, the pacific gas in Mi ami herald cases. This court has routinely looked at com pelled speech case s to determine if the Show Less Text
00:16:42		can I just ask you to clarify before we move o n. When I first asked you the question a bout the cis gender hetero sexual couple, y ou said you thought she was publish it. B ut then it seem ed like you wavered and sa id something if I could just clarify Show Less Text
00:16:53		the hypothetical, the second part of the statement was that it didn't matter is that
00:16:58		that concepts o f gender or sexual orientat ion were irrele vant to their relation ship, b ecause they beli eve that those c atego ries don't matter wh at matters, is their Union of souls Show Less Text
00:17:11		know th at she would not cre a te a website that would sa y that because that would violate her beliefs about what scripture holds on marriage. In the same way though, this law and the compelled s peech do ctrine protects the LGBT web site designer, who won't be forced to have to create a website, essentially advocating for a view of marria ge that they don't hold. No, Show Less Text
00:17:32		no, go
00:17:33		ahead. No, no, no, no.
00:17:35		Justice. Justice Gorsuch, I'm sorry.
00:17:39		No, no, no.
00:17:41		Uh, on e can view the se websites or last time around we had c akes, um, as either ex pressing th e maker 's poin t o f view or the couple's poi nt of view . And, and that's really at t he heart of a lot of this. And I guess I'm I'm a little co nfuse d because sometimes, as as I understand it, you're sayin g inherently here, um , it is my client's point of view and not j ust the couple's point o f view. I'm being com pelled to sp eak. I get it . And sometimes Karlo ag rees with you. For example, when it comes to, uh, t he example you j ust gave, whi ch is why I popped up. I believe i t was Willia m Jack. And the masterpiec e cak e, u h, examp le where Car los said he di dn't have to cr eate cakes that uh, tha t spoke against same marriag e. That that would be his compelled speech, no t just t he couple's speec h. So what do we do about this level of generality problem? If you will, where people slide back and fo rth based upon the priors, how do we avoid that as a court? What rule would you have us draw Show Less Text
00:18:54		The court
00:18:54		should follow a rul e that says if the speech is being cre ated and there's an obj ection and that ob jection is containe d in the messa ge. It is protec ted speech and the government can't slide up and down me Show Less Text
00:19:05		why it's no t protected spee ch the identi cal mes sage tha t, um , t hat, uh , Justice B arrett put forth, but b y a dis abled coupl e, and you say I don't wa nt disabled people to get married . I think pr op agating a disabilit y is ag ainst my personal belief, it do esn't have to be religious because we're no t dealing wit h the religious part of this. I do n't want t o speak that mes sage. I too b elieve that to dis abled people getti ng marri ed and tell ing their story of how they got in love. I'm not go ing to s erve those people becaus e I don't believe that they sh ould be married. What 's the differenc e between that and I don't believe black people and white people should get married. Show Less Text
00:20:00		What matters is what the objection is that the speaker is being asked to create and whether the
00:20:05		But if I just that's my objection, I don't believe they should be telling their story. If you
00:20:12		don't believe they should be telling their story. And what they're asking you to do is tell their story, then you don't have to do that.
00:20:19		Really? There is no line on race. There is no line on disability ethnicity. None of the protected categories in a public accommodation law.
00:20:30		There is a line, there's a very clear line and it's worked very well. Clear
00:20:33		line is you're saying it's compelled speech correct, not compelled service.
00:20:40		I'm saying that in the public accommodatio n case s, this court has routinely lo oked at whether their speech and whether the message is affected a nd whether the objection lines up with Show Less Text
00:20:50		one line that you're missing is Justice Gorsuch is lying whose speech, the person viewing it going to think is talking the Pulitzer
00:21:02		prize doesn't go t o the customer or to the subj ect, it goes to the photogra pher. And t here's a reason fo r that. Tha t reason is because you wer e requiring that artist to spe ak a messag e. It is their wor k. It might also be the customers an d the custome r can use that. But the First Amendme nt is broad enoug h to cover the lesbi an website designer and th e cathol ic calligr apher. The line is th at no one on any side of any debate has to be compelled to express a message that violate s their core convic tions. Because as this court found it's demeaning to Show Less Text
00:21:34		them. I'm sorry, can
00:21:36		I ask you a hypothetical that jus t sort of helps me to fle sh that o ut? Because I also sig offered you suggest earlier that there's something different about race. Maybe the pe rson wo uldn't sel l to someone u m of a diffe rent race. S o, so suppose, um, you say that photo graphy is expressive. Can you giv e me your thoughts o n a photograp hy business in a shoppi ng mall dur ing this holiday season that offers a pr odu ct called sce nes with santa. And thi s business wants to ex press its o wn view of nostalg ia abou t christm ases past by r eproducing cl assic 19 fort ies and 19 fifties , s anta scenes , they do it i n sepia tone and they are customizing e ach one. This is not off Iraq. They're really bringing the pe ople in and havin g them interact with santa Children b ecause they're trying t o capture the feelings of a cert ain era. Um, but precisel y because they'r e trying to capture capture th e feelings of a certain era. The ir policy is that onl y white C hildren ca n be photo graphed with santa in this wa y, because that's how they vi ew th e scenes with san ta tha t they're trying to d epict. Now. The business wil l gladl y refer famil ies of color to the santa at the other end o f the mall who'll take any, but but and they w ill photograph families of color in other scenes, ot her scenes. So they're not dis criminating against the fam ilies. What they're saying is scenes with san ta is preserv ed for w hite families and t hey want to have a sign ne xt to the santa that says only white Children. Why isn't your argument that they should be able to do that? And maybe it is Show Less Text
00:23:18		because in the photograph itself, the objection is not contained in that photograph, but in addition, I think it's important to remind the court.
00:23:25		No, no, no, don't leave . Sorry, what do you mean? I me an, the objec tion just like your clients o bj ection is to expr essions that vio late their ow n views of what is being depicted. And so their view of wha t is bein g depicted is that a scene with santa and a c hild on the lap and all of that in s epia to ne trying to hark en back to the g ood old days, should only have white Childre n in it. That's thei r firm belief they ar e not willing to ta ke photogra phs of black hispanic a sian Children on sa nta's lap ? Why is that any different than a situation like this? Show Less Text
00:24:08		Because the specific objectio n that you're includ ing is not necessa rily in that photog raph, but e ven if it we re this court has p rotected v ile, awful reprehensi ble, violent speec h in the past and it is never coming. Show Less Text
00:24:20		I'm just asking you why is the objectio n of the w eb desig ne r as jus tice ? Both Kagan and Sot omayor's po inted out when we look at your exa mples, they jus t say things like please come to the w edding on this day Show Less Text
00:24:35		precisely. It's an invitation to a wedding.
00:24:37		Okay, so I, so so if my hypothetical is an invitation to join me in the 1950s, um through looking at this photo, you say one is different. I say
00:24:49		that that same clarity o f the messages in t hat photo, but there are difficult lin es to draw and th at may be an e dge case, but t his is not we have a creative a creator of spe ech and a very clear, Show Less Text
00:25:01		maybe an edge case, meaning it could fall on either side, you're not sure I am,
00:25:06		I a m sure. And that the message isn't in the pro duct, it's not in the photogra ph. But even if th is court were to find tha t it was, the court would still have to protect t he speech and the co urt could draw a line in a different place as i t has juxtaposed lo ving and Obergefell in terms of the beliefs between same marriage. Show Less Text
00:25:25		In Obergefell?
00:25:26		Did the court say that religious objections to same marriage are the same thing as religious or other objections to uh people of color?
00:25:42		No. In fact, it 's said that dec ent and honor able people hold be liefs about mar riage, believi ng that there's a gender diff erentiated marria ge and that that's based on reasonable religious and philosop hical premises . When we review loving, there's a very different how to Show Less Text
00:25:56		write thi s decision f or y ou. That d raws the lin e just on gay ma rriage, because that's what you seem to be saying right now , but draw s a line that doesn't affec t my example of a disabled pers on or a n interracial couple. You're sayin g it's just because it's compelled speech. Show Less Text
00:26:20		I'm saying that the interracia l couple, the disabl ed pers on, the lesbian gra phic designer , the democrat, the rep ub lican. No one should be compelled to speak a message in this court ha s never found a compelling interest. Show Less Text
00:26:33		You'r e you're say ing a print s hop, a web desi g ner, a cake maker, a jewelry ph otographe r, a jewel ry maker. They can refuse to serve anyone. T hey wan t to refuse because they have a deeply fe lt bel ief tha t serving taking pictu res of black coup les, black and white coup les, ta king pictures of disabled pe ople. People are gon na belie ve that they're speaking that message. I'm not Show Less Text
00:27:08		saying that at all. What I'm saying is that in ever y free speech ca se the court looks fi rst is their s peech in many of the situ ations you rais ed there Show Less Text
00:27:16		But why not? I'm saying your identi cal we bsite And I don 't see a page in here where it s ays, I a m sp eaking 303. That's on your personal websit e. It's not on the wedding website. I've a sked you t o sho w me where in which pages it's your message as opposed to the couple's. Show Less Text
00:27:38		Every page is my client's message just as in a newspaper that hosts an op ed written by someone
00:27:44		or Hurley
00:27:45		the parade.
00:27:47		But then why does an off the shelf website, the creator of an off the shelf website is then speaking, that's what you're saying.
00:27:57		No, because the compell ed speech doctr ine doesn't a pply once you've e ntered that speech into the stream of commerce when the speech is completed, the compelled speech doctrine no lo nger applies. Bu t in addition, ther e are 20 states that have filed an amicus b rief in this cas e and sai d they're right n ow using their pub lic accommodatio n laws to allow m essage based protections as Hurley wou ld require. And t hey're not experiencing these issues. And you're not Show Less Text
00:28:21		asking for that. You'r e saying, I don't want to se rve a partic ular pers on, a disabled p erson , black or whit e couple, a disa b led couple, a uh, a g ay couple. You're basing i t not on the na ture of the message . You're basing it on who you're serving that. Show Less Text
00:28:42		I don't think that's a fair characterizatio n the stipulat ed facts in this c ase or that Miss smith has LGBT c lients, she serves them re gularly . She has Show Less Text
00:28:51		that's different b y the way, what you're basically say in g is i n our u h, olek bar bec ue case. Um , the comp any there said I'll serve b lack s but only on a take out window, n ot insi de my restaurant bec ause that send s a message that I endorse into integration. MS smith Show Less Text
00:29:20		isn't looking to send a message through her.
00:29:22		What you're saying is I want to give gay couples a limited menu, not a full menu. Just the way that luncheonette said
00:29:30		no . Just as this c ourt found in her early, she's be ing asked to shape her speech by a t hir d party. And it 's again, it's about what message is she is creating in Ollie's barbecue. Show Less Text
00:29:41		When I s it down to eat a mea l by a fu ll chef who creates this beautifu l picture o n a plate. Why can't he say I make s pecialized meal s for my client s? I will not serve a black p erson. I w ant to serve a disa bled person beca use t hey can't apprecia te ful ly what I'm creating. That's basically what you're saying. Show Less Text
00:30:06		No, I don't think it is what I'm saying. We're completing service and speech. In that instance, a chef is
00:30:12		not a service
00:30:14		answer the question
00:30:16		Yes. Because it
00:30:17		is creating speech an d the public accommodati on law is br oad enough to en sure that we're not crushing consci ences, n ot just of Miss smith but of our Show Less Text
00:30:26		Thank you. Council. Um, if your client's website, uh, not so fast. Uh, new way
00:30:36		of doing it. If your,
00:30:37		if your client's websit e, uh, was sa me as it i s. But th e o nly, uh, indicati on of any limi tation wa s a tagline at the end saying th ese services are for he terosexua l couples only. Uh, could th at constitutionally be app lied und er the colorado statute? The speech Show Less Text
00:30:57		could be compelled if you're suggesting that she essentially has a no customers only sign. And that's
00:31:04		well, no, in your case, no websites, no websites are available for except for heterosexual couples
00:31:13		for marriage,
00:31:15		same thing,
00:31:15		generally speaking, no. In MS smith's parti cular case, all of her w ebsites are created their original, customized t o the story. An d so, in that instance , she believes same marriage to be fa lse and couldn't create the speech. Show Less Text
00:31:27		Okay , what if it sa i d, I won't pr ovide w ebs ites for anything other than he terosexua l marriages because of reli gious reasons. Could t hat be c overed? Or is it simply the invocation of religious bas is f or the obje ction that pr otects it from coverage under the statute, Show Less Text
00:31:48		The religious basis is not determinativ e here. This court has prov ided broad prote ction for rel igious spee ch, but it wouldn't matter. This compelled speech doctrine applies in a host of situatio ns and cases that are not religious, Show Less Text
00:32:00		I guess. I don't understand. U h, that answ er. In other wo rds, is it simply adding for re ligious re asons to the label that would change whether it's can be regulated or not. Show Less Text
00:32:12		I think what's important is tha t the objection is to the message she's being asked to create. And s o if she believes she's b eing asked to creat e a message that violates her convictions, whether thos e convict ions are based on a moral reason or r eligious reason, it would be protected. Show Less Text
00:32:26		Thank you. Justice thomas,
00:32:27		Justice Alito,
00:32:28		Justice Sotomayor Justice Kagan.
00:32:32		Yeah, I wanted to take yo u back to my openi ng questi ons and then Justice Ali to's question abo ut how your case is different from my hypothe tical and ma ybe the way to sort of cut through some of this is to not make it a hypothetic al and jus t ask abou t yo ur client. So mike and mary go into your client, we love you r graphics, we saw them s omeplace el se. We lo ve how this l ooks. Um here's what we want, we wa nt the standard site. Ou r names are the picture, the hotels , the reg istry, you kn ow, just just that. And uh you say OK, don't you? Show Less Text
00:33:10		Yes, assuming all the details line up with the message that she's willing to create. Yeah,
00:33:14		I mean, they say we don't want your scripture, that's alright with you.
00:33:19		They don't
00:33:19		have to have scripture.
00:33:21		They can
00:33:22		just have a standard site. Right, ok ay , So now it 's not Mike a nd mary now i t's Mike and Mark, and they want th e identi cal site, we saw M ike and mary's site, we loved it, we're getting m arried, you know, you know, a ll they want to change the date maybe, o r, you know, their names, whatever, we loved it, and and they do n't get it. And the quest ion, and you say no, right, you wouldn't be up there if you weren't going t o say no right? They can't get that site. Show Less Text
00:33:50		Yes, because the same words can even convey different meanings.
00:33:54		Yeah. So then , I mean, the differen ce is one co uple is opposit e One couple is s ame How is this? You know, what, what are t he different m eanings? What is the s peech that your c li ent is e xpected is requir ed to provide in? Uh, the way I expressed it to you. Show Less Text
00:34:18		The purpose of the website is to celebrate an upcoming wedding. It's to announce a wedding and it
00:34:24		is to announce the weddin g. I mean, t his is a standard site. You know, there's not a whole lot of Gos h, isn't th is great? It's just li ke, here's the registry, you know, it 's announcin g the wedding. It's announ cing where to get the hotel reserva tions and so forth. Right? So what speech is being , I mean, that's that's what that 's what websites do. Just like it's wh at invitations do, r ight? So, you know, next, we'll have th e station are up ther e saying, you k now, w e print the state the station ery, right? I me an, that wou ld be the same. It is annou ncing the w edding. Wha t's the s peech that's been required of y our client that we I mea n, I'm going to have lots of que stions for these guys too . But in in t hat context, what is the speech that is required of your client that would violate the First Amendment. Show Less Text
00:35:15		She believes that sam e weddings contradi ct scriptu re, and she's announ cing a co ncept of ma rriage that she beli eves to be f alse. And i n addition to that, Show Less Text
00:35:26		but that just sound s to me like I would be participat ing at a we dding. I would be, you know, lending my services to a wedding, y ou know, as Justi ce Sotomayor suggeste d the florist , the baker and the guy who provi des the chairs are also pr oviding the services i n a wedding that t hey don't like. Um, uh, so wh y are they any different? The person Show Less Text
00:35:49		providing the chairs isn't providi ng speech. But w hen you are engaging in sy mbolic speech, whether that be through the creation of a custo m weddi ng cake or a custom wedding website, you are c reating speech even though Show Less Text
00:36:01		the site doesn't say anythi ng about th at, It doesn't say, wo w, gay marriage is a wo nderful t hing. It do esn't say it doesn't even say, you know , we're here to celebrate this wonde rful marriage. In m y hypothet ical, it doesn't even say that Show Less Text
00:36:19		again. The announcement of the wedding itsel f as a conc ept that she believes to be fa lse. And the entire purpose behind the co mpelled speech doctrine is to avoid these ends b y avoiding these beginnings. I t's to ensure th at individu als don't speak mess ages that betray the ir conscience and that applies just as m uch to th e democrat as to the LGBT or the black cross sculptor. Show Less Text
00:36:39		Thank you
00:36:41		Justice Gorsuch.
00:36:42		So counci l, um, w e've spo ken a little bit abo ut how Color ado has handled this compelle d speech question differently with respect to differ ent messages, Um, some that it prefe rs, others that are dis likes. I'm curious how oth er states have dealt with this conundrum . Um, beside s Colorado, And how you , which ones of thos e you think w e should take account of 20 states Show Less Text
00:37:07		filed an amicus brief in support of Mi ss smith and expre ssed to this court that t hey're applying their public accommoda tion law to provid e message based object to pro tections, just lik e the court did in her early, foll owing the same test th at's bein g articulated today and they've bee n do ing it successfully . Yes, there are diffic ult line drawing quest ions, but th ose are in every spee ch case, wheth er it's sleeping in t he park o r putting on an armban d. The court doesn't have to resol ve every single one of them, but we do have the rules, and we n eed the cou rt to provide guidan ce. Again. Reaffirming p ublic ac commodation la ws cannot compel sp eech creators whether that's artistic expression with symbols or pure speech. Show Less Text
00:37:46		And just so I mak e sure I understood yo ur colloquy w ith Justice Barr ett . U m, The obj ections to compell ed speech here on religi ous g rounds could inc lude in fact, do include some objections with re spect to certain heter osexual marriage. Is that there are certa in heterosexual unions tha t your client would not speak. Is that correct? Show Less Text
00:38:09		Certainly. And that's in the stipulat ed facts in te rms of she decl ines messages based on the mess age and she has declin ed other proje cts based on the message that have nothing to d o with same marriage. Show Less Text
00:38:19		The question isn't who it's what
00:38:21		always
00:38:24		Justice Kavanaug h From the brie f s, I saw a lot of agre ement ac tually betw een the parties in thi s case on b asic legal pr inciples. Uh in your rep ly brief, page 15, you say that hairst ylist, la ndscapers, plumber s, caterers, tailors, jewelers, and rest aurants or dinarily would n't have first amendment free s pe ech right to decline to serve uh same w eddi ng. At least. That's how I read that reference in your b rief. B ut you say artist s a re different um like p ublishing houses and I think the other side will hear fr om them , but agree that artis ts are different uh b ecause o f the Fi rst Amendme nt rights that artists uh possess. But th en as least as I read the briefs, the case comes down to a fairly narrow o r n arro w questio n of how do you characterize we bsite designers? A re they more like th e restaurants and the j ewelers an d the tailo rs? Or are they more l ike uh you know, the publishing hou ses and the other uh free speech ogs that are raised o n the other side . T hat's what I took aw ay from the briefs? A lot of agreeme nt on broad l egal principles and um some disagreement about h ow to characterize the w ebsite designers. So why are you write about how you characterize website designe rs? O r put another wa y, why are they differen t? And you've gotten this question, why are they different from, say, restaurants or caterers? For example, because they're Show Less Text
00:39:59		creating speech and those oth er examples spe ech is not an i ssue that is cre ating speech anno uncing a wed ding or announcing a nythin g. Um and art is differ ent. And so while there may be agreement on tha t, there al so is a problem with Colorado's advancing theories that keep narrowing and pro viding alt ernatives. But in the end , one thing is certain those who object to s ame marriage a nd creating messages about them. T hose are the ones t hat can't speak, but everyone else seems to b e able to do so under Colorado 's theory. In addition, this court has already articu lated how we deter mine whether speech is involved for an artist . And I think t he court could f ollow those tests here with words, graphics, videos and against symbolic speech. Show Less Text
00:40:41		So, for you , um, a s as uh ther e's an effort to protect both the equal rights of gay a nd les bian peo ple and same couple s at the sam e time prot ect free speech rights. Your line is look at whet her the action o f the business involves speech. Show Less Text
00:41:03		And the second lin e would be to look at what is the object ion that the cre ator is asse rting and would that ac tually be in the final product because th at's how this court has ferreted out protection all objec tions. So if if a speech cr eator articulates an objection and it 's not in t hat final photog raph, the objecti on or the message is n't in there, t hat's one way we can know ano ther is if they're refusing to serve an en tire class of p eople and design othe r messag es, none of which are true here. So if Show Less Text
00:41:31		you win this case, if you prevail here, you know in the next case involves a caterer, at least your position here is that's different. I won't
00:41:40		be coming back with the caterer but I will be coming back with perhaps a custom wedding cake or a cake has a symbolic meaning to it.
00:41:48		Okay. But the caterer , the list of thin gs that you have on page 15 of the reply brief at least. Ordi narily you had a caveat in there, but o rdinaril y wouldn't I wouldn't have the same ri ght that your cli ent here does. He's a website designer. They Wouldn't Show Less Text
00:42:02		have a free speech right? An d as in ter ms of your initial statem ent about the parties agre eing, I do thin k it's impor tant on pages 17 and 32 of the Uni ted States brief there even conceding that it's a burd en on a speaker to have to express a message that viol ates their convicti ons. They're just simply re labeling this or repackaging speech as a sale or conduct. Show Less Text
00:42:23		Thank you
00:42:24		Justice Barrett.
00:42:25		So I
00:42:28		think the questions that Justi ce Kagan asked yo u are hard b ecause they seem like they 're not creating, I mean, you'r e on your strong est ground when you're talking about her sitting down and design ing and coming up wi th the graph ics to customize th em for the couple. So let me just clarify exact ly what your position is on things t hat are alre ady created in the pa st. What if it is plug and play. Um I don't know that mu ch about website design, s o I don't know how it could be pl ug a nd play, I'm sure it can be, she, sh e does the programmin g, the coding, she has stock pic tures and she sells that as a p roduct a nd the customers, you k now, mike and Henry o r you know, lily and luke fill it in themselves, is that protected? Show Less Text
00:43:10		It is not protected in the same wa y that if you so ld a bible comment ary, you wouldn't be able to decide w hether the bible com mentary will be b urned or it will be used in a church service, the stream of commerce, tha t's been put in the stream of commerce, Show Less Text
00:43:22		okay, so why is i t different just as king and sa id, so maybe you do create customized websites and you've created one fo r you know, Lillian luke and then you know mi ke and Henry se e it and say you've cre ated that a lready, we love it, we want to buy it, don't create any thing new for u s, just give us exact ly what you did for th em. Why is that different than plug and play or is it? Show Less Text
00:43:44		It is different, I mean first of all, i f I take your hypothetic al on its face , we would be selling essent ially a web, she w ould be creating a website that's exactly the same w ith the same pict ures and tex t and graphics and videos of an opposite couple and selling it to a same couple, which seems highly unl ikely, they wouldn't use that to celeb rate their wed ding, so in terms of if you 're askin g her to change the text , to chan ge the logistics, to change the nam es, You're changing b ride and groom, you're changing th e couple's nam e, you're chang ing, we know co ntext changes meaning. Ju stice Ginsbur g said that in Yate s versus United States, ev en the same words h ave different meaning God bless this marriage means someth ing different. My body. My ch oice means som ething different to a n anti-vaxxer or a pro abortion opponent, a proponent. So in tha t sense, that's wh y she would object if s he were changing the words in the text, but of cour se she would sell the same website celebrating an opposite wedding to a same couple. Show Less Text
00:44:39		Okay , so conte xt changes meaning. What if instead of a gra phic designer, she's a son gwriter and she write s a song, you know, let's say at l ast or Wind Beneath My Wings or something th at people want to dance to a t t heir wedding. And the lyrics are out there. You know, it could be pla yed at a h eterosexual weddin g or could be pla yed at a gay w edding once the ar tist has create d that s ong. Can the artist s say, but I 'm not licensing it to be played at certain kinds of weddings. Show Less Text
00:45:06		No, I don't think the artist could, I 'm not familiar with the licens ing r ules and how all that would apply in terms of the cont ractual relationship, but in terms of ju st having a song used at a wedding, as suming that would otherw ise be okay, there's no othe r legal rights. She could n't, that was in the stream of commerce. But I th ink it's imp ortant to point out that if that ar tists were being aske d to perform that's Song in a live way, for ex ample, sayin g at a democr atic inauguration and t hey were asked to per form at th e Republican one. Under Colora do's the ory, they c ould be compelled t o do so in a number of juris dictions, 19 jurisdictions have political ideology. An d when we think about that, there's no limit to what the government could compel. Show Less Text
00:45:45		Thank you,
00:45:46		Justice Jackson,
00:45:48		but isn't an
00:45:48		artist typicall y sort of a freelan cer and they are sel ling thei r own messages, they'r e not um p urpor ting to be a busin es s for hire in in in any meaningful sense. And so I want t o kind of go back to u m Justice Kavanaugh's thought of like, wher e do we pl ace your cl ient as betw e en rest aurants and artists? I thought um that there rea ll y isn't that cle ar a distinc tion in a situation lik e this, because your c lien t is an artist for hire, essentially. Yes, she doe s cus tomize things. They're not off the s helf, but s he purport s to be a public accommo dation, pr oviding u h customized things to anyone who pays h er except for people whose mess ages are those that she disagrees w ith. And I just d on't know that I've ever s een tha t kind of sc enario, even in the cases that you're talki ng about, becau se sort of what Ju stice Gorsuch was sayin g. It's it's relying on t he implici t uh message tha t she does not want to convey by su pporting this pe rson. There's an explicit mes sage in the actual work, but to the ext ent that actual work is ident ical to the to the wo rk that she woul d otherwise sel l to the gay co uple exce pt for their name s. Then she is implicitly say ing, you know, by selling this, I'm go ing to be violating my own beliefs. Um so l et me just a sk you ano ther quick hypo. So I'm t rying to understand the exte nt to which this matters, that she's a s peaker um as opposed to a res taurant. So I sell food and one line of products that I make is fr om scratch for particular customers that are based on my grandm other's cherished fa mily rec ipes. My dearly dep arted grandmot her was clear th at she only wanted to provide th is kind of nourishment for people who share ou r same religious heritage. So I call these prod ucts grand ma Helen 's protestan t provisions. A nd I sit with each customer who come s in and I hear about their fai th and thei r family and I c ustomize the r ecipe for them a fter having this discuss ion. So the foo d is not expressive, right? I'm not speaking in my food, but I am trying to convey that only certain people um get to partake in this product. Can I do that consistent with the First Amendment or not? Show Less Text
00:48:19		No . And a nd in this situation, as you said, that in ter ms of a caterer, the caterer is not engaging i n speech in terms of yo ur initial statements or question s, speeches, speech whe ther it's paid or pro bono, but don't we have cases Show Less Text
00:48:31		that suggest tha t people's conduct can be express ive. I thought there was a whole line of cases that said, you didn't have to a ctually have an express message. Y ou could be ac ting in suc h a way as to expr ess a message. And i n my res taurant hypo I'm sayi ng if I sell to non Protest ants, I'd be exp ressing a message cont rary to grandma Helen's core beliefs. You're speaking Show Less Text
00:48:55		through conduct at that point. And tha t is a different analys is in terms of the expressive con duct tests. The cour t has already articulate d what those tests are and what a reasonable pers on would observ e. But in that case, you're talking essent ially about status dis crimination. Ther e's no message um tha t she is creating That would be co mpelled in that way. That wou ld simply be service . In addition, though, I think it 's importan t to recognize the breadth of the public a ccommodation law. You started with a s tatement about f reelance writers at oral arg ument at the 10th ci rcuit. My frie nd in Color ado admitt ed that freelance writers a re considere d to be public accommodations under. We'll ask Show Less Text
00:49:31		them about that. But what about my photographer, my photographer is speaking through photography. Yes.
00:49:38		In in your photography. Yes, photography is speech justice websites are under the court's,
00:49:43		m y photographer cou ld is speak ing by by b eing forced to c re ate uh sant a ph ot o with um minorit y Children in it. That they don't want to they don't thin k Show Less Text
00:49:56		The issue in that hypothetical isn't whether there is sp eech the iss ue is i n that conte xt, are they otherwis e serving those and expressing other m essages? And does the objection that they're asserting line up with the message? The court in Hu rley did the e xact same ana lysis to say is the p ara de organizers otherwise, but it was a Show Less Text
00:50:14		private association, it wasn't a publi c business. Wh at I'm asking you is I have a pu bli c I'm a photogr apher. My belief is t hat, you know, uh, I'm doing it's a wonderful life sc enes. That's what I'm offerin g. Okay, I want to do video depictions of it's a w onderful li fe. And um, I'm knowi ng that movie very well , I want to be a uthentic . And so onl y whi te Children and families can be uh, customer s for the tha t particular p roduct. Everybody else can, I'll give to everybody else. I'll sell them anything the y want. Just no t the it's a wonderful life depictions. Um, I'm expressing something right for your purpo ses at that sp eech. Wha t about what's the other step? It's speech And I can say anti discrimina ti on la ws can't make me sell the it's a wonderful life package to uh non white individuals Show Less Text
00:51:09		in the same way. I woul d say, first of all, in the same way that t his court when there is a mes sage in a status and it's ov erl apping the court wou ld say that message wins in t hat instance. So I don't think so. I Show Less Text
00:51:21		don't have to sell it to. I
00:51:22		don't think that that message is in that hypothetical , but take t he example of the musi cal of Hambl eton. There's a direct overlap in the musical of Hambleton and in that case, we know that they 're expressing a preference for who they're h iring in terms of race, that you're Show Less Text
00:51:37		sort of slipping into it like 100 0 different analogie s. I just w ant I just want you to f ocus on whether o r no t I am I hav e speech when I am a ph otography bill business and I hang out my shingle, everyb ody can come. But I have c ertain products that I w ill only sell to n on to white indiv iduals because the speech t hat I'm tryi ng to depict is t he authent ic depicti on of that scene as I under stand it and that I want to pu t out there in the world, and it has my signature on t he bottom of it. So, people are seeing my photos and I want my photos o f. It's a wonderful life to be as authentic as possible, meaning no people of color, Show Less Text
00:52:17		it seems in each iteratio n of the hypothetica l, the objection is changing. What I can articu late is the test. And I can also say that whe n there is an overlap between message and status message does win and Hambleton prov ides an example of that. All right, thank you. Show Less Text
00:52:31		Thank you Mr Olson Mr Chief Justice And may it please the court.
01:06:09		and isn't part of the proble m here. In terms of trying to answer Just ice Ali to's various hypothet icals that were pr esented with a record of stipula ted facts and that the opposed your friend on the other side actua lly stipulated to the application of the statut e. So it 's really hard for us to know and figu re out and dete rmi ne in this contex t how the statute would a ctually apply because we don't re ally have a real record on that on that score. Show Less Text
01:06:36		That's correct . And I would s ay t hat uh w e've heard some discussion f rom my friend about sort of col orado's hist ory, but what we have n't he ard is any specific exampl e since this court announce d masterpiece of col orado enf orcing this law, the st ate enforcing this law against anyone. My question r eally was no t whether t his website is a public accommodation. I understand that's b een stipulated. That wasn't my question. Wh at I'm trying to understand is the breadth of your argument a n d what I ge t is that you're making a tiny sliver of an ar gument. So the web site can put a nything o n its websi te, uh , ev en something t hat will blatantly or subtly tell a same co uple. Well t his is not a se rvice that I want, t hey can do that. A nd the website can also po tentially get itself out from being a publ ic accommodation simply by reserving a deg ree of selectivity. That's w hat you've tol d me. So. No, I don't think i t's just by re serving a d egree d egree of selec tivity, but I think the more selectiv e and sort of curate d the processes, i t makes it less likely to be a public accommodation as th e court r ecognize d in Fulton. A ll right, let me a sk you. Uh, and th en I'll finis h this line. Um, some hypotheticals in a brief s ubmitted by josh Blackm an. Okay, a uh a jewish man and a jew ish woman who were engaged to be marri ed to ask a jewish web site designer to buil d a website to celebrate their up coming their n uptials. No probl em. Okay , another je wish man and a christ ian woman wh o were en gaged to be m arried. Ask a jewish websi te designer to build a website to ce lebrate their the ir nupti als? Big p roblem, qu ote ma ny jews consider intermarr ia ge an existential threat t o t he f uture of J udaism. Does that website have to accept the second uh, couple ag ain, as we talked about before, if t he jewis h website designer ha s very exp licitly jewish the mes on th e weddi ng, they don't need to be on the web site. They don't need to take that do wn for the inte r religious cou ple that comes, but th ey i f they offer a ge neral service t o the public, they need to offer t hat rega rdless of the customer's religion. So the fact that they offer this to t hat this is a jewish that is offe red mostly to jews. That's enough to make it m ore exclusi vely to jews. That's e nough to make i t sufficiently sele cted to ge t them out from your N o, I'm drawing a di stinction between w hat the w ebsite designer chooses to put on the we bsite and who the website designer s ells the website to. The websit e designer can choose to put on their websites whatever the y want, but t hey just can't refuse to sell if they'r e a p ublic accommo dati on. Uh they can't refus e to sell that we bsite t o someone sol ely because of their custom ers or the couple's religion. An unm ar ried jewish pers on ask s a jewish photographer t o take a photograph for his j date datin g profi le on a dating servic e. I gather for jewish p eople. Alright, maybe Ju stice Kagan will al so be famili ar with the ne xt w ebsite I'm gonna mention. S o next, the jewi sh person as ks a jewish photogr apher to take a photograph for his Ashley Madison dot com dating profile. I'm not su ggesting that. I mean, she kn ows a lot of things I'm not suggest ing. Okay, does he h ave to do it? Well, again, it would it woul d what colo rado look , it depends what colorado l oo ks to is wha t services th e photographer makes avail able to th e public and if if t he phot ographer make s that servi ce available to others taking pictur es, you know, fo r use on we bsites, then probab ly yes, but it depe nds on Oka y, Justice uh I really will stop just Justic e Jackson's example of the the santa in the m all who uh d oesn't want his picture taken with black Children. So if there's a black santa at the other end of the mall and he doesn't want to have his picture taken with a child who's dressed up in a ku Klux Klan outfit. That black santa has to do that. No, because clues Klux Klan outfits are not protected characteristics under public accommodation laws Show Less Text
01:11:05		and presumably that would be the same coup Klux Klan outfit regardless whether the child was black or white or any other characteristic.
01:11:13		You do see a lot of black Children in ku Klux Klan
01:11:15		outfits all the
01:11:16		all the time. Suppose that I mean can I
01:11:22		can I can I Yeah, is that alright?
01:11:55		because she
01:11:57		doesn't do it for anybody. Yeah , ok ay, gay couple walks in a nd says this is th e harder one . Alr ight um gay cou ple walks i n a nd says uh I'd li ke the standard website, you know, e verything standard, the kind of website we were ta lking about befo re, but I want someth ing in addition to that. Um I want I w ant in the on the home pa ge uh the websi te to say God blesses t hi s union, All ri ght. And Miss S mith says uh that's a problem, Miss Smit h says, and the g ay couple s ays, well you wou ld say that if if we were a n opposite couple, right? An d um and sh e says, we would sa y that if you were an opp osite c ouple. And the gay co uple says, well, wha t's the big d eal then? Um I don't know, I think that that kind of is different. So I'm wondering whether you think it's different. Show Less Text
01:12:55		Well, I thin k it's different in pa rt because it implica tes the very comp elling free exercise c on cerns of t he vendor which aren't present in this case. Show Less Text
01:13:05		possible. I ge t the I get the id ea that there's a kind of reli gious elem ent to it. Um I wish I could think of one t hat didn't have tha t component be cause I feel like there's something else going o n there as well that it is a st atement of opini on about the nat ure of this marriag e which, you know, in my earlier hy pothetical s I too k care to remove, but now there's a kind of statement o f opinion about t he nat ure of this marriage and unl ike the kind of our sto ry things, which is l ike obviously it's their story, it's not the designer 's story, you know , unlike that, it feels a litt le bit to me as th ough it cou ld be a kind of third person saying God blesses this union. And who woul d the third person be other t han the person wh o's put the whole webs ites together. So I have difficulty w ith that hypothetical, and I'm wondering what you think about it. Show Less Text
01:14:01		So I agree . Justice Kaga n. And I think ima gine a stat ement that says something along the li nes of, you k now, uh , there's a dat ing website that meets people and then the people tha t they connect through that says, you know, thi s is a wonderful marriage th at we suppor t, Um, no religion, right? A nd then wh ere you have that dire ct speech, uh, it doe s get a little trickier, b ut b ut but what I wo uld say is t his is, you know, the default ru le would still apply even though that is an edge case . I agre e. Because the question is, what s ervices does the company choose to provi de ? And if it chooses t o provide t hat service to somewhere here, it's, you kn ow, it may be that that looking at the services, will I evaluate yo ur marriage and I give it a thumbs up or thumbs down and, you k now, I assume you don't want the thumbs down on the website. So if y ou get a thumbs up on the we bsite , so that's a f at question, I think that w ould be hard. But if it was a state that was made solely based on the sta tus of the person s eeking the website. In other words, it thumbs up for all opposite couples thumbs down for for same couples, then it's an easier Show Less Text
01:15:13		question. Thank you.
01:15:14		Counsel justice thomas.
01:15:16		Anything further?
01:15:17		Justice alito . Well, u m, back to my black s anta exa mple, I suppo se it's a st ate that u h defines uh a publi c accommodate pro hibits a public accommodatio n to discriminate on the basis of po litical ideology. So then th e then the p ictur e has to be take n. I think uh t hat is likely those p olitical ideology distinctions face mu ch more diff icult constitutional scrutiny and I think a re separate an d kind from the kind of charac teristics we're talking ab out here, which ar e categories o f invidious discrim ination. Can rea lly thi nk in most circumstances, political ide ology did not satis fy the constitut ional requi rements. So i t has to satisfy a c onst itution al requirement. Yo ur argument is depend ent on that. Yes. Because even under O 'brien, there's there 's we have to sh ow a basis for wha t we're d oing. In l ight of what J ustice Kennedy wrote in Obe rgefell about uh honora ble people who o bject to same m arriage. Do yo u think i t's fair to eq uate op position to same marriage with o pposition to interracial mar riage? Yes. Beca use in how the law appl ies not in in discussio n uh with folks because of c ourse, honor able people ha ve different vie ws on this issue, but I thi nk when you look at wh at Justice Kenn edy said, uh they're the way to honor that requirement is a s this court is set forth in fulton and m asterpiece of ha ving a rigorous interrogation to make sure that there are uh ne utral and ge nerally appl icable laws a pplied. In fact that wa y they don't single out rel igion. And then the very next s entence of w hat Justice Ken nedy said in Obergefell ta lked about when, when it transfor med that honest a nd decent disagreement, transforme d into enac ted law and policy, the necessary consequences t o put th e imprimatu r of the state on that exclusion. An d I th ink if this co urt were to say say tha t the imprimatur of this court would allow a we b designe r to say no sam e people allowe d or allow a school phot ographer to say n o pictu res. Do you think Jus tice Ke nnedy woul d have sai d that there are t hat it's h onor able to opp ose to d iscriminate on the basis o f race? No , I don't think s o, only just give you 11 more hypoth etical, suppose someone offers the se rvice of writing custom ized wedding vows were uh customized speec hes to be given at a we dding by peopl e who have a n idea what they woul d like to s ay about a fami ly member or a g ood friend, but they just d on't feel they're very good with word s. They can't put it into words and let's say thi s, thi s outfit is just start ing up , They d on't have a lot of clients, t hey 're sitting at the, you know, th ey're sitting by the phone and their computer wai ting for somebody to show up so they w ill take anybod y alr ight. Um can uh can they be forced to write vows or s peeches that esp ouse t hings t hey loat he? No, they cannot be for ced to write vows or speeches tha t espouse thin gs th ey loa the becaus e that's not a protect ed characteristic. But they cannot assume i n your example is is the prohibition or the lim itation against co mpelled speech limited to things that are unc onstitutional? No, I think I think the re are so, why does it matt er? Well, because here things that is not a protected characteristic anyw he re, anywhere that I kn ow of. B ut on th e c ontrary, it doe sn't fall wi thin, you say it doe sn't fall within your statute, but maybe it's going to fall with in the statute. It may fall with in ano ther statute. Under unde r any level of scr utiny. Here you look at the st ate's compelling intere st in in determining that the incidental burden on uh in our example, the vowel writers rights and and I don't know of any state that has sort of a compelled has the same compelling interest as they do for protecting things that other people loathe as they do for gender, religion, discrimination. And so I think it would be a different analysis. Show Less Text
01:19:49		This would be the first tim e in the court's hist ory cor rect that it wou ld say that a b usin ess open to t he publ ic as this pe oner has said it is that it's open a commercial business, open to the public serving the public, t hat it could ref use to s erve a cus tomer ba se d on race, rel igion or sexual orientation, correct? Show Less Text
01:20:25		King Justice Gorsuch.
01:20:29		Good morning.
01:20:29		Mr Olsen , is it still mor ning ? Just bar ely must not feel like it's standing whe re you a re. I'm here all day. Just it's good to see you. Um We've had some discussion abo ut whethe r websites are sp eech or whet her they're som e s ervice off the shelf and I I like a lot of my colleagues don't profess to know much about this, But I do k now that ther e are some st ipulation s that yo u ma de in paragraphs 81 -82-83, which s ay that th is is cust omized, personalized, an e xpre ssive activity in each and every circumst ance. What do we do about that from you r perspective? Don't we h ave to take t hat as give n? Yes, bu t it doesn't change t he analysis. Wh y not? Because I do see a thing very diffe rent. If I p ut a cake on display , it's been made, it is what it is or a website th at you can then go cus tomize yourse lf. And another th ing to commiss ion an expre ssive activity and and to re quire someb od y to create an expression . Those are two differ ent things analytically in our law. S o help me out. I think along with th e stipulations, we need to look at the specific re lief that the company seeks. But tho se are the stipul ations stip ulations and the specific relief that the company seeks is the ability to turn away every single same customer. Show Less Text
01:21:58		Well, they can ask for what
01:21:59		they want, what they get. Might be anothe r thing. Mr Ols on, But how we analyze t he case depe nds upon those stip ulations. Of cours e it does. O kay. And the n separately , I was intrig ued by your answer befor e my friends at t he 10th c ircuit about freel ance write rs and people like that. And the notion t hat Colorado could compel , for ex ample, an i ndividual to wr ite a speech or a press relea se on behal f of, say, a religious e ntit y with whom he or she disagrees. Do es every press release writer, free lance writer have to write a p ress release for the Church of scientology. S ay, even though the beliefs of th at institution may be inimical to the person, not at all. And an d I admit I don't have firmly in mind the exact cont ours of my answ er a couple of years Go to the 10th circuit, b ut I will te ll you what Colorado law says, which is a fre elance writer, may or may not be a public. Let's assume they a re under your definition pretty broad , very different th an the h istorica l understandin g of public accommod ation. But w e've gone over t hat . So assuming away that har d part of the ques tion getting to to what limitations all that Colorado la w requires is th at if you choose t o off for service to s omeone, you need to offer that service, I offer to wri te press releases f or anyon e. It's not who, but it is a w hat and what is I won't write a p ress release that expresses re ligious vi ews or um, that I disagree with. Well, I think certain ly a a freelance writer who is a public a ccommodati on, could say, I don't wr ite press releases that exp ress religio us views full stop. I won't write that for anybo dy, right? You can No, n o, no, I'm happy to do it genera lly speaking, but ju st not ones I disagr ee that there are many I wou ld agree with across a w ide variety of religious faiths. U m but I'm not gonna do i t for some with whom I disa gree. Well, e ven in that circum stance, what colora do looks to is the service y ou a ctually provide and you choose t he servic e, so long as you cou ld say I yes, Colorado would compel that pers on if the answ er is no, because Colorad o could say you as a speechwriter could say I write uh religio us speeches th at I write, touch on a few trad itions that I have kn owledge of, and I don't write speeches th at tou ch on other knowledge is no, no, n o, it's not, not. You're ch ang ing my hypothe tical Mr W ilson, that I dis agree with that, I find of fensive to my religious belie fs. That's the h ypothetical, so long as you w ould sell th at to everyone, not bas ed on thei r religion, but you ca n define the contours of the pro duct, you ca n cho ose the contours of t he product that you sell, but I call it s peech b ut you can call it a p roduct if you wan t, we'll call it speech. You can choose the content of what you say, you j ust can't what you say you sell to. Okay. A nd so you could say, I'm go nna, I'm gonna focus on the se things and but I need to sell that to e veryone. Even if the person who want s to buy it as a membe r of a religious f aith that I di sagree with, that, I will write a pres s release for many faiths and many be lief systems that are but they have to be consistent with mine and I won't do it if it offends my religio us faith. Go od to go so long as you sell that to everybody. Ye s. Ok ay. Alright. What's differe nt about thi s case? Because I'll j ust fi nish the question and I are already re ady to answer it. But we have an indivi dua l who says she will sell and d oes sell to everyo ne all man ner of w ebsites, but sh e won't sell a we bsite that requires her t o express a view a bout marr iage that she finds offensiv e to her reli gious beliefs. What's the d ifference between the two cases? I'm s truggling t o understa nd the differences And again, look ing at the specifi c relief the company seeks. Put aside the spec ific reli ef the com pany seeks because it's up to courts to fashion relief. So th at's that's not going to persua de me to work on something that might b e the difference . I s is that that distinction the c ompany has cho sen to say they want to provide wedding websites generally and they will not provide all manner of websites that this individual w ill provide. All man ner of websites. Just not one that celebrate s r equires her to wr ite something. Words on a page, cust omizable, all the stuff is stipulated to um, that celebrate a pa rticular thing that she finds offends her religious b eliefs. I still, I'm looking for the dis tinction between the tw o cases. One you sa y is okay, The other one no t okay because the com pany, unlike o ur first example of the speech writ er, the c ompany here says in no un certain term s, will they ever sel l a company a product or service to a same couple? What they say is we will not sell to anyone anyone a message that I disagree with as a matter of religious faith, just as a speechwriter says, or the press release writer, the freelance writer says I will not sell to anyone a speech that offends my religious beliefs, but here they are defining their service by excluding someone based on their that's their religious belief Show Less Text
01:31:09		you disagree with that? In light of the stipulation s that Justi ce Gorsuch reviewed w ith you? Becau se if it's speech you know , as the stipulations, Just ice Gorsuch R ed did and she ha s to say it, why isn't it compelled speech? Show Less Text
01:31:24		Because on the stipulations and where we are here, the company would refuse to provide the same identical speech
01:32:17		Okay, I wa nt to give you a hypothet ical that do esn't r ely on disagr eements, phil osophical or othe rwise with speec h, but just a desire to promote a different kin d of speech. So let's say a ne wspaper is running as man y newspapers do runs marriage announcements. And s o, you know, th e new york times says that such announced, which it picks have to satisf y it s normal editoria l standards. Let's just say that the newspaper fo r gay pride mo nth decides t hat it's gon na r un t o promote and recogniz e sam e marriage only s ame marriage ann ouncements turns away heterosexua l announcemen ts not because it d isparages or disagrees with oppo site unio ns, b ut because it's trying to promote somet hing else , can it do that? That's a protected characteristic under the law. Show Less Text
01:33:03		That's a hard hypothetical , becau se norma lly the marriage announcem ents are considered to be a public accommodatio n, but your hypo thetical i ntroduces a layer of editorial discretion. We ll, you can't run Show Less Text
01:33:16		every marriage announcement that comes , there would be too m any. So you're necess arily going to pick and cho ose just like every bu siness is gonna have to pick and choose based on resources Show Less Text
01:33:24		well, and I think , but in that circumstanc es, if the sole basis for p icking and c hoos ing is a protected chara cteristic of t he new york times couldn't ... Show Full Text
01:33:43		So for gay pride month and newspaper can't choose to try to celebrate that and communicate a message by running only gay marriage announcements.
01:33:50		Well, again, I think the answer is no, but that's unusual case because a newspaper obviously typically has great discretion, it might
01:33:59		be an unusual case, but th e problem and what a l ot of the hypotheticals are gett ing at is, however, we de cide this case obvi ously applies to o thers, and what if we say it's not the new yor k Times, but what if we say that it's a gay r ights group that wan ts to publ ish gay rights annou ncements online all year ro und, not just for gay pr ide month, because it wants to c elebrate l ove in that communi ty, and so it pu blishes only same marriage a nnouncements and turns away opp osite Can the gay rights organization do that? Show Less Text
01:34:28		I think they're very unlikely to be a public accommodation. So, the answer is likely
01:34:32		why, I mean, they're pa id, I mean, they craft these for and it's a bu siness, it's a co mmercial en terprise, but they c raft these announ cements for the Show Less Text
01:34:43		I guess who
01:34:46		it's a it's a it's a it's a gay righ ts enterpri se, it's a it's a g roup ru n by, you know , people who are interested in promoting gay rights and it's a forum to celebrate gay marriag e, they charg e you make money and you run marr iage announcements that have our story etcetera, but it's done sp ecif ically to celebrat e love i n that community. Can they turn away opp osite marriage announcements in Show Less Text
01:35:10		this unusual hypothetical, assuming the Repub lic accommodation, they cannot turn away announc ements b ased on protected characte ristics. So they coul dn't turn around turn a way off the announcements or interra cial marriages, I think if they're public accommodation, but I think Show Less Text
01:35:25		so, they can be compelled to, it's no t it's not that they have anythi ng against oppos ite unions, but they can be comp elled t o give their, you know, web sp ac e to those, to those announceme nts, even though it 's not consistent with th e message of their organization. Show Less Text
01:35:40		Again, assuming the ir republic accommodation and opening themse lves, they can do that. But I think what makes the hy pothetica l difficult is that th at assumption likely does does no t apply to most organizations like that. Show Less Text
01:35:53		I t seems like you can 't get out of everyth ing by defi ning public accommod ation na rrowly or broadly de pendin g on it. I mean, you agre e that in Hurley, the parade was a public a ccommodati on as we he ld because her lease y our hardest case. Right? Show Less Text
01:36:08		It's a difficult case , but but we are different than Hu rley and I'm happy to talk about wh y. But the public accomm odations law wa s applied to the parade in her early and the courts, that that was because of the pecu liar circ umstances there. It was inappropriate. But i mportant ly, in Hurley, ev eryone could march i n the parade. The only issue was who could carry t he banner in the parade. And in this case, people can't march in the parade, th at the company i s turning away people for the ir products based solely on who they are. And that's a big differe nce from here. And Hurley. Thank you. Justice Jackson. Show Less Text
01:36:42		Yes. Um, s o I just wanted to say how perplex ed, I was about the ques tions that seemed to disti ngu ish, um, this ki nd of, um, sexual orienta ti on refusal to provide services from the race dis crimination. And there we re some quest ions raised about, you know, rel igion being the basis, bu t I guess, and you might be able to help me with t his and you might no t. But I was fair ly certain that historic ally oppositi on to inter racial marriages an d integratio n in many i nstances was on religious ground s. So I don't know that we can say that just beca use um, we h ave a religious o bjection to uh same mar riage in this situ ation that wouldn't necessarily implic ate religi ous objections to other kinds of situations. Am I right about that? Show Less Text
01:37:32		Absolutely correct about that? I mean, bob jones University is a good example of that case where there was, so, whatever
01:37:37		we decide here is Justice Barret t suggested, could ha ve implications for other k inds of categoriza tions and First Amendm ent, um strongly relig ious held First Ame ndment, um, uh, invocations of rights. Show Less Text
01:37:51		Absolutely. And I think th e reason my friend w as having such difficu lty giving clear answers to some of these hard question s was becaus e there is no way to cab in this to under the free speech clause exempt and they seek j ust to weddings or sexual orientation. All Show Less Text
01:38:05		right, So, can I jus t direct yo ur attention back to just ice Kagan's quest ion, because I thin k she made good points ab out, um, you know, the God bless this union hypot hetical, and I guess I was thin king, um, i sn't pa rt of the problem tr ying to figure out whose statemen t of opinion it i s when you have a publi c accommodatio n, when y ou have an artis t for hire, right ordinari ly would have an artist who e ven though they're mak ing custom, you know , things they're makin g custom things based on their own views and opinio ns and this is my art. But when y ou have an artist for hi re and people c ome t o them and say, he re's what I'd like you to make , there's a que stion about whe ther what they make is the ir statement or the customer statemen t. So i f it was clear t hat it was n ot their s tatement, let's say the gay co upl e comes and they say we wan t God bless this union o n our website . And the web designer says that's fine. But yo u understand under our name at t he bottom, we sa y on every website, we believe that mar riage is only between one man and on e woman. And we're gonn a put that on your websi te. Ju stice Ali to says, mayb e that pe rso n will walk away and maybe they will. Bu t the p oint is, um if they do that in ev ery situat ion and it's cle ar tha t it's not their statement, then do we solve the difficult Justice Kagan problem of like who's who's making an expression here? Show Less Text
01:39:36		I think we make progres s towards solving it. And I think back to the stipulati ons, I think it's notable that the stipul ations here do not addr ess that question that you raise. Justice Ja ckson, what the company says is , well, eve ry website has designed by three or three creati ve at the bottom t hat's paragraph 83 of t he stipulation s. An d then t hey say, and if a V iewer of a wedding w ebsite goes to 303 crea tive, then they wil l understand our philosophy, our own website, then they will understand our philoso phy and understand that there's some i mplicit recogni tion endorsement what ever of the wedding. Bu t on the stipulated fa cts here, the que stion you pose is tota lly wide open. There's no uh, evidence i n the recor d whatsoever and no we bsites in the record, u h, to look at to se e whether anyone wo uld at tribute the speech about the couple on the wedding website to the designer as opposed to Show Less Text
01:40:30		that we have tha t as part of our standa rd in the holdi ng. Like, l et's say we we don't want to go as far as you're sug gesting perh aps with the holding in this c ase, could it could it be that w e w oul d say, um, you know, the First Am endment protects the web design ers abiliti es to u m, you know, um not have thi s kind o f uh, a same weddi ng website. O nly if it w ould be clear fr om a, you know, a ne utral observer from t he audience that having that website is their own expression. Show Less Text
01:41:09		tw o things to s ay on that your honor fi rst is I think both S pence and Hurley itself talked a bout the importance of how an onlooker would look at t he message and who onlooker would attribute the message to. So I think cert ainly co uld could build on t hat. An d again here, there's no evide nce wh atsoever that that anyone would l ook at a wedding website of designed by thr ee or thr ee creative and say, oh that i s uh you know th e speech and beliefs of the designer as op posed to the couple get ting married, thank you. Counsel, thank you. Mr fletcher, Show Less Text
01:41:48		thank you. M r Chief Justice and m ay it please the cou rt. My friend Miss Wagner offere d a two part test this morning for when a c ommercial business is entitled to an exemption from a generally app licable public acco mmodations law. She said number one is their produ ct speech and nu mber two does servin g a particular cu stomer chan ge the message i n the view of the busi ness. As the questions today hav e already explored, t hat leads to extr emely sweeping re sults. It means that a ny provider of expressive services is entitled to put up a sign saying we do not serve people w ith particular ch aracteristics whenev er they bel ieve that serving t hose people would ch ange their message. Wha t I want to begin with today is to explain why that way of approaching the prob lem is also inconsis tent with this cou rt's cases, most notably Rums feld ver sus Fair, which you men tion. MR Chief Justice th at case was not just about access t o the law sc hools rooms. The law schools had a separate claim that said, we pr ovide other services to recruiters in the form of emails, newsletters, other things of that natu re. And this court did not disagree and said those things are cl early speech and the law schools a lso said when we ar e required to provide t hose services to the militar y, it changes our message because it forces us to support a cause we deeply oppose . And this court did not disagree . Instead, it sai d that compulsion of s peech is permissible because as inciden tal to a content neutral regulat ion of conduct and the law schools are required to speak only if and to the extent they would provide the same speech for others. I welcome the court's questions. Show Less Text
01:43:12		U m I do think uh the c ourt in in sfe ld was deali ng with the sort of c om puls ion uh that it's s ignificantly d ifferent from the c ompul sion he re. Um uh in what other case have we uphe ld uh co mpelling speech in oth er words, not simpl y just restricting spee ch , but actual ly compel ling uh an indiv idual to engage in speech contrary to her beliefs. Show Less Text
01:43:44		So, I think MR Chie f Justice Rumsfe ld really is one of t hose cases, and I wa nt to emphasize that t he law schools there r eally did have a ver y credible claim. I think that they deeply opposed th e military's policies. Show Less Text
01:43:54		Well, they opposed the military's policies, but all they really had to do was give them an empty room.
01:44:00		Mr Chief Justice. That's not correct. That pa ges 6 0-62, the court acknow ledges that there were things that the law schools were required to do, lik e sending emails, coordinating meetings , including announceme nts in their ne wsletters that were clearly s peech. The court below had held advising Show Less Text
01:44:14		advising people that the military recruiters were available in a particular room
01:44:19		and including their announcement s distributing the announceme nts on behal f of the military, incl uding the military's annou ncements in the l aw school zone newsletter, the cou rt below held and the Show Less Text
01:44:28		the the fact that they would b e recruiting on camp us pursuant to the Solomon amendm ent. Do you think t hat's the same as the speech that's co mpelled here, which is directly o pposite to the bel iefs tha t the MS smith is seeking to convey? Show Less Text
01:44:45		So I think it depends very much abou t what type of spee ch we're talking about here . I don't know that i t is different in a constitut ional sens e from the sort of speech that was described in what justice cake and I think calle d the basic website where we're talking about a websit e that presents in an attracti ve way the details of th e couple's weddi ng. I think it migh t be a very diff erent case if she were compelled colorad o ever app lied its law to compel her to create messages or express re ligious views about marr iage or to do so me of the opinion based statemen ts that Justice Kagan descri bed. But I think that case might well come out differently. Show Less Text
01:45:14		In other words, you would say tha t her e's where the mili tary recru iters are going to be wit h those recruiters o f course using a disc rimina tory policy that the law schools d eeply obje cted to. Here's where the military r ecruiter s are going to be is very similar to here's where the wedding is going to take place, whic h is what standard websites do Show Less Text
01:45:37		Exactly. And sayin g that I don't wa nt to at all min imize mi ss miss sincere religious objection to saying that fo r a wedding that she opposes. I'm just making the point that the law schools also had sincere mo ral objections to makin g those statements to fac ilitate recruiting. T hat they found deeply object. What Show Less Text
01:45:53		if the law schools al so had to m ake available thei r Cdo to sit do wn with the military and help them um craft, you know, in a statement that would be attributable to the military. You know, this is why a career w ith the military. This is what it would be, this is why it's attrac tive and the n posted that changed Rumsfeld. Show Less Text
01:46:13		So there was actually evidence tha t those sorts of services were offe red that the law schools were pre ssing that are referenced in the Third Circuit's opinion, but not spe cifically referenc ed in this c ourt cases. I think w hat that start s to get into i s how do you dra w the line betwee n are you providing , is it really the same spe ech that you would p rovide for someone els e and are you being requ ired to do something t hat goes be yond that to express t he opinion related statements that justice Kagan, what Show Less Text
01:46:37		if they do it for everyone? The caree r development office wi ll do that for, you k now, law firms. T his is the job of an as sociate and here's why it would appealing, which you'd be getting out of it. If they do that, then they would hav e had to do that for the military or would that make that case more like Hurley? Show Less Text
01:46:51		I gue ss here's the way I an swer. The question is is the wa y that Hurley did we read Hurley to ask? Is the compulsion? Is the burde n on speech ? Is it truly incidental to the content neutral regulat ion of conduct? And wha t Hurley start ed with on pages 5 72 to 5 73 is being emphatic in saying thi s parade is no t excluding people becau se they are gay a nd lesbian is excludi ng them solely because of the message tha t they want to send . And so the court said a pplying the publi c accommodations law to them is not incidental. It's not serving the content neutral regulation of con duct because they're n ot disc riminating on the basis of s tatus. Instead the law and Hurley the court said was equivalen t to a law saying that the pa rade had to include an y me ssage that any prote cted group wanted to o ffer. That is not an incidental burden on speech. That is a direct burde n on speech. And the reason why we view this ca se as being l ike fair and not like Hurle y is because Col orado is not asking mis s smith to say messages or to speak messages that you would not speak for anybody. The only thing that it is say ing i s you can't discrim inate based on st atus an d you can't defin e your services based on protected status so t hat you can't say the thing the message that I object to, that I won't speak for anybody is a message that is tied to the customer status? Show Less Text
01:48:02		I don't know how many o f my colleagues ha ve loo ked at the actual webs ite. I don't even see celeb ration of marr iage in any of the ex amples uh exhibi t a page 51 says s ave the date , Lillian l uke no vember 20th you're invited and it says Lilli an lucqu es and t he date an d place the town. The exhibit 52 is counting down the days. Do esn't ev en say what it's cou nting down for exc ept the our special day wh ic h everyb ody has to as sume is the coupl e's 5 3 is an R. S. V. P. With p ictures. 54 is our b log. Bring your danci ng sho es. 55 is their date. It all began sev en years ago, L ily's versio n and Luk e's ver sion. It's clearly not 303s version . We l ove each other an d coffee. I don't even know what C. O. Colorado, jesus, dogs a nd diving. We l ove each other is the co uple who loves jesu s. I assume your adv er sary won't say jesus doe sn't lo ve them back but it doe sn 't say that The 57 is t he ceremo ny. 58 is the reception lo ca tion, spi rits d inner menu and dancing 59 is l ocation. I do n't see anywher e. I'm celebrating the marriage or God loves anyone or anything to do with anything like that. So have you reviewed this website? Show Less Text
01:49:46		I have just said, do you
01:49:48		believe that there's any page that says celebrate the marriage?
01:49:52		I honestly too, as I stand he re today, I can't remember whet her there is or no t. I don't think it would make a diffe rence if there were. And I think what the examples that you j ust read highlight is that the re is a lot of websit es or content on we bsites that is properly w ith in this case becaus e it is consiste nt with the Jus tice Gorsuch and with the scope of relief that they're aski ng for and with the type of services t hat MS Wagner has described, what Show Less Text
01:50:13		they're asking for is a status based exemption to accommodate.
01:50:17		That's exactly right.
01:50:19		Not a
01:50:19		speech based exception.
01:50:21		Just I though t pa ges 1 88 A a nd 1 89 A The stip ulation below uh said that t he additions to the web page s tated and then it lists the fir m belief in God that they Miss smit h subscribed to. Is that d o you understand that to be part of the stipulations or not? I do Show Less Text
01:50:43		mr Chief Justice, but that's referring to her website , her business's own webs ite, not the website s that she would create for clients and not the websites that would be subject to the public accommodations. Show Less Text
01:50:54		I was just going to sa y, also on p age 18 8. is the popu la tion uh that her religious beliefs will be unmistakable to th e public after viewing the addition Show Less Text
01:51:09		Once again, that's describing her website , not the websi tes that she would create for cli ents or the C olorado law mi ght might require her to provide ... Show Full Text
01:51:18		and council, we also have stipulati ons from colo rado that the plai ntiff is will ing to wo rk with al l people rega rdless of classific ation, such as race, creed, sexual orientation and gender. Right? In some Show Less Text
01:51:31		respects. Yes, but
01:51:32		that is that I just read it. You disagree with that stipulated fact in this case
01:51:37		that is stipulated, but it's also clear that she will not provide any wedding website for a same couple
01:51:42		for a same wedding. And she was provided to a heterosexual couple either. Right? But
01:51:48		that's still discrimination within the meaning,
01:51:51		just as s he wouldn't sel l a website that celebr ates a hetero sexual union that she di sagreed with to anyone, regardless of t heir sexual orientation. Show Less Text
01:52:00		That may be right, Jus tice Gorsuch. But I think master piece couldn't have been c learer in saying that de clining to se ll goods or services, even expressive goods and service s for a sa me wedding is a form of status based discrimi nation properly within the scope of public accommodations Show Less Text
01:52:13		on that. I just want to make sure I understand. Do we agree as well that this is this work that the planet performs is expressive in nature.
01:52:20		We do.
01:52:20		Thank you. And if
01:52:22		it's expressive, What what about my photograph hypothetical.
01:52:27		So I didn't belabor this at the beginning , Justice Jackson. But y our photograph hypothet ical is exactly the sort of implication of the arguments that petitioners are advanc ing that are of concern to t he United States? We really do think it's ver y difficult i f you accept her principle. Is it speech and does the sp eaker believe the m essage has changed to say that someone w ho is doing the tha t would not be enti tled under her theory to an exemption from the p ublic accommodations laws. And we think that's a very sweeping acco mmodation that's inconsiste nt with the court's admon ition and ma sterpiece cake shop that any sort of carve outs in thes e areas have to be ca refully cabin to avoid undermining the gov ernment's compelli ng interest in en suring that all americans have equal access to the public. Show Less Text
01:53:04		And s o just to be clea r, right, I t's the same Photog raph for both cust omers. Th at this ex pression in m y example is classic scenes with Santa. It's a wonderf ul life, 1940s and we want the artist , th e pho togr apher wa nt s Santa with th e kinds of depic tions that a re in that m ovie and he wants to sell that to everybody . But what that means is only some p eo ple can be depicted in that pictur e is that that's I'm ju st trying to make it be cause we've hea rd a lot of que stions about, well, isn't she custo mizing i t? I mean, he 's cust om izing each photo, bu t what he's saying is I won't do the cus tomization f or these folks who want depict ions with san ta because t hat is inconsis tent with my beliefs ab out how that scene shou ld be depicted and I'm a n artist and you'd be forcing m e to p ut out into the world. Pic tures of santa with Children that I think are in ca consistent with my view of how santa should be depicted. Show Less Text
01:54:16		We agree, Justice Jackso n, we think if you accept petitio ners theory the u pshot is that that photog rapher or photo grapher who says I won't take corporate headshots for women becau se I don't want to send the message that women should be leaders in t he workplace. C an deny service to a class of people. Show Less Text
01:54:29		Mr fletcher. What if you hav e a g ay couple who r uns a web de sign business in a colleg e town and you know, a big part of the ir business is deve loping websites for student organizations, the environm ental organization, li ke different rec club league s, wha tever. And then you ha ve a christian organiza tion o r catholi c org ani zation that um basically stands for and ad vocates traditiona l views of marriage . This is the reas on metro for th e club. They host d ebates, invite speakers, um and they want the standard we bsite tha t this co uple provid es in the ir business, whic h is, you know, uh graphics that make it look app eal ing kind of an about us pag e that describes what they do and What the ir bel iefs are. And let's say t hat this couple like 30 3 creative has on the bottom of every page, like , you kno w, designed designed by y ou know, Jack a nd Mic hael, everyt hing this club wants t o say is an anathema to this couple. Do they have to, can you compel that speech? Do they have to publish it? Show Less Text
01:55:30		I don't think they do. Why? Because I don't think that's a refusal based on status. Okay,
01:55:34		this is my question. That's why I aske d it because I thi nk here there's a differ ence of opinion about w hether turni ng down the same coup le simply fo r purposes of the marriage announcement is a t urn down based on sta tus or message. And it seems to me in my hypothetica l that the sta tus of the c lub is inextrica bly intertwined with th e message they want to speak. So why is it different? Show Less Text
01:55:57		For a couple of reasons? I think, first of all , just to sta rt with the s ame marriage cont ext, this court has reco gnized that that's a circu mstance wher e status and conduct are inextricably i ntertwined in Lawrence m asterpiece. T he court has s aid, refusing to serve for sa me marriages is discrimin atio n against same gays and lesbians becau se status and conduct is ine xtricably intertwined. The pu blic accommodations laws a nd the anti di scrimination laws g enerally don't work that way in general. We don't think tha t the ex pression of particular v iews is ine xtricably intertwined with having a particu lar religion or being a democrat or republican in gene ral. In public accommodat ions laws, we say when you discr iminate against someon e because they want you to print a website or serve an event or cater an event for something that you dis agree with. We woul dn't say that that's a status based refusal. And I think that's correct. I don't think Show Less Text
01:56:46		this is a carve out that's applicable just to the same context.
01:56:49		I think it's a context. it's like the court's recogniti on in bray that att acks on Jamar cus is attacks on jews. There are ce rtain rare context where status and conduct are inextricab ly intertwined. And I think the court is r ightly recognized that sa me marriage is one of them Show Less Text
01:57:02		justice thomas.
01:57:04		This is
01:57:04		a leade r . I want to make sure I unde rstand some of the con tours of your argu me nts. So, my fi rst questi on is whether y ou believe th at speech can be compelled so lon g as the per son who i s compell ed to s pe ech to speak, um is uh is not as sociated with the compelled speech. Show Less Text
01:57:28		That's not the line that we draw . Justice leader. I think w e've focused on. Is it being compelled pur suant, inc idental to a content neutral regulation of conduct as unfair, or is it not Show Less Text
01:57:38		outside of that contex t in genera l? Uh does the prohib ition or restr iction of co mpelle d spe ech apply only where there is no danger of attribution? I don't
01:57:50		think so. No. I would imagine applying another context to. Okay,
01:57:53		do you agre e with Mr O lson that a web site for marriages can tailor the website in a wa y that makes the websit e unacc eptable to same couples by saying,
01:58:09		for instance, on every website, we believe that marriage is only between one man and one woman or something like that. Yes, you believe
01:58:16		that's that's permissible. We
01:58:17		understand that to be permissible as a matte r of colorado law a nd also we think tha t's consistent with the way the public accommodations laws usually, Show Less Text
01:58:24		Olson's answ er to that was if a web site or part of the answer at least w as that if a website included something l ike that, that would cause the web site ... Show Full Text
01:58:59		don't think my answer changes Justic e Alito, because I thi nk that impos ing a requirement or prohibi ting that incl usion on the website is directly targeting the expressive content. Isn't Show Less Text
01:59:08		that kind of a silly distinction?
01:59:09		Just leader respectfully? No, I don't think it is. I t hink it's one that's fam iliar both to public accommod ations laws and to the First Amendment. So, in the public accommoda tions context as Mr Olson said, you could have a st ore that can say w e sell pro ducts that are solely for related to Jud aism and it's not likely to be appeali ng to christians or H indus, but no one thinks the store is viola ting the public acc ommodations l aws unless it says no ch ristians or Hindus m ay injure, and then it is violating the public, Show Less Text
01:59:35		is there any limit t o how broad ly a state can defi ne a public accommoda tio n. So, uh suppose t he state d efines it as an y business, and provide a business that provid es services t o a signif icant porti on of the public. W ould that mean it's no, it can't be regarded as a public accommodations anymore. Show Less Text
01:59:59		I don't know abou t that line. Specifical ly, Justice Alit o, I will a ccept the premise of the question . I do think there are limits as to how far the state can go, at least when we're talking ab out what's a sufficientl y substa ntial inte rest to justify or to pass scrutiny under the O'brien. Show Less Text
02:00:13		I ask this, becaus e a lot of the argumen ts on your side uh, seemed t o view, uh , public accomm odat ions, that if it 's a public ac commodati ons law, it's generally okay, uh, t here's no problem with it, and that's why I want t o know how far t hat can be expanded. So, uh, some selectivi ty wou ld not necessarily take a business ou tside of the the definiti on of pu blic accommodations. The same arguments would apply. Show Less Text
02:00:42		Some selectivity wouldn't tak e them out, but I think the farth er the State wa nders from the sort of tradi tional core of co mmercial establishm ents that hold themselves out as serving the public , the weaker the state interest. What Show Less Text
02:00:53		about the characteristics, uh, that formed the basis for an impermissible denial of service. And the limit to those,
02:01:01		I think they're the sam e answer. So, not in the sense that a state can define its public accommod ations laws, however it w ants. But, yes, when it sta rts to bump up against the First Amendment and you're applyi ng the o'brien standard pr otection for som e characteristics. Th ings that go beyond the tradition al things like race,, sexual orient ation, religi on, those at issue here a nd get out i nto political affiliation? Or you can Show Less Text
02:01:22		define it as political affiliation can decline to include political affiliation.
02:01:26		I'm not saying
02:01:28		I'm not
02:01:28		saying you can't define it that way. I'm ju st saying that the inte rest supported by such prohibition would be weaker than the really core ones l ike Show Less Text
02:01:37		along. Um Uh huh. Okay, so how much selectivity do you think is required?
02:01:50		So that's gonna be I think in the first instance , as a state law m atter or as a constitution al sort of backstop matte r? I think it's hard to giv e a precise answer. I think the court 's opinion in Fulton give s some g uidance and says more selectivity. M ore in dividua lized review is less likely to be a public accommod ation. And in contrast a nd entity th at generally holds its elf as open to the public, can't escape th e public accommo dations laws. Ju st by imposing a d iscriminatory limitatio n o r some pretense of selectivity and I know I can't give y ou a bright line, but I th ink this is a familiar problem in public accommodations, supposed. Show Less Text
02:02:22		I think my last question, suppos e three or thr ee creat ive says th at uh, there's so muc h demand for our serv ices that we have to b e selected and w ho we choose. Would this be, would that make this case? Would this case come out differently, then? I don't Show Less Text
02:02:40		think so. Justice Alito . I think that a busine ss that is o pen to the public and s erves the public b ut has more b usiness than it can handle . And so has to be selective is still a public accommodation. Show Less Text
02:02:51		Thank you.
02:02:52		Justice. Sotomayor
02:02:53		Justice Kagan
02:02:56		um Mr fletcher. When I rea d your brie f, I had the sense t hat you and General Olson co lorado parted w ays on on some matters and I 'll just on my hypothetical God blesses this union. I thou ght that you might find that more difficu lt than General Olson and I'm wondering if I'm right about that an d and if I am right, why and what that says about your argument generally. Show Less Text
02:03:26		So let me give you the answe r I give today. I'd start with just the same observatio n that General Olson g ave you, which is that I think th ey're free exercise clause issues might come int o play. I'll put those to the side because this is a spee ch case, right? And I think what tha t pushes o n is can the person who 's providing services credi bly say I'm not deny ing service just becau se of status, I'm denying s ervice because the re's some message t hat's not just tied to statu s that I'm not willing to speak for anybody and to me, Show Less Text
02:03:51		gay marriages are wonderful to take the religion out of it,
02:03:55		right? So obviousl y Miss smith can say I will not make any wedding website for a nyone that says gay ma rriages are wonderful . She can refuse on that ground Colorado. We agree Show Less Text
02:04:04		that God bles s this union w as supposed to be so that it w ould be , she would b e like perfectly fine wit h saying it for so me couples and not fine with Show Less Text
02:04:14		correct? Yes. And I guess it's a harder cas e, you know, I th ink it's one of the rea sons why this case is frustr ating is because w e don't have any concre te facts. I think my inclination o n that case is that I think she has a str ong argument to say really, that is making me send a differe nt message beca use of the context. It's not a literal test, it's not just th e words exactly the same, right? We acknowle dge that context matters. And so in a case like that, I think she has a much stronger claim to say if Colorado appli ed its law to make me say tha t, and I think it's far from clear that colorado would then it wouldn 't be imposing the so rt of incidental b urden the court sa w in fair, then it's imposing this s ort of direct burden you saw in Hurley and the analysis looks very different. Show Less Text
02:04:51		Yeah, So what do you sai d is part of what frustrat es me about t his case beca use, you know, I guess my view w hen I'm trying to think of hypot heticals for myself i s a little bit, it depends on the first set of hypotheticals I gave, I would c ome out one way and o n the second set of hypotheticals, I gave, I h ope I'm not gi ving too much away. I th ink it's much toughe r and I might com e out the other way and and it re ally depend s on th e facts an d on wha t exa ctly Miss s mith is being asked or compelled to do and that mat ters. And we h ave a ca se without any of that in it. And what should I do with that? So I Show Less Text
02:05:28		think you should take the case as i t comes to you and as it comes to you, i t's Miss smith say ing I want to post a sign saying I will not provide any websites for any same marriag es that sped up seven A Show Less Text
02:05:38		Categorical rule.
02:05:39		Categorical rule based on status an d pages 303 to 3 or four in the joint appendi x, which General Olson re ferred to. That's the relief that she's seeking. How she's free claim. What she wants is an injunction that says Show Less Text
02:05:50		Justice Gorsuch says we don't want to do things bas ed on relief beca use courts are in con trol of relief. So take out tha t part of your I mean wh ether he might be right, he might not be right . But would it matter if we took that out? Show Less Text
02:06:01		I don't I don't think it would because what I heard Mi ss Wagner to say this mor ning when she was asked about what the client wants t o do is that the services should provide ar e not limited to the ones that are described in th e stipulations, she would p rovide something that was n't so custo mized as long as i t was to an opposite co uple, but she wouldn 't provide it to a same couple. That is wha t she is asking the court s to validate. And I think the court ca n take tha t claim as she presents it and say o n that level of generality. She is not entit led to pre enforcement rel ief, but I think it can also do too because I r ecognize there are harder questions out there. It cou ld and should do what it did and hold her versus humanitarian law project and doug h versus rea d and say in rejecting this facial chal lenge in part or I'm sorry , pre enforcement chal lenge in part because we need more facts a nd we don't have the m. We are not foreclosing the possibility that there's narrow relief in future cases with concrete facts. Show Less Text
02:06:45		Last question you sai d to Just ice Jackson that you didn't want to belabo r the point, but her hypoth etical is exactly the kind of hypothetical th at you're concerned ab out. Uh you m ust have done many moods of this case and thought of man y hy potheticals, what are your two ones that you're like Show Less Text
02:07:13		That's a lot of pressure on my motor s. My favo rite one is this court's dec ision in Roe versus Macquarie, which was about a school that wante d to exclude Children in partic ular races. And it said t he reason we want to do this is b ecause segregation is import ant to our beliefs, and that's what we wa nt to teach. And this c ourt said you are fr ee to teach segrega tion in your school, but you can't act o n that belief by exclu ding Child ren of particular races. And I t hink there's a private school obvio usly, and I think if petitioners are right, that case comes out different ly as long as t he school can come in an d say wh en we teach, we ar e expressing messages and those messages change wh en we express them t o students of d ifferent races. I think th at's very troubli ng. And I guess I take Justice Alito's point t hat I do not mean to equate tho se who have different vie ws about marriage to Racists. B ut the reason why I rely on those hypothetica ls is because this court's F irst Amendment jurisprudence does not distinguish between view s we find odio us and those we respect t o the same prin ciples apply i n both cases. And if the princi ples lead t o unacceptable places whe n we consider them in lig ht of odious views, then I think we have to reject those principles, even in a case where we sympathize with and respect the views. Show Less Text
02:08:14		Thank you. Justice Gorsuch.
02:08:15		I think at the end of two hours we are now in the afternoon, by the way,
02:08:19		Good afternoon,
02:08:20		uh that there's actually radical agreement on on how we should analyze this case legally. Tell me if I'm wrong,
02:08:28		I disagree, But go ahead.
02:08:31		Didn't even give me a chance
02:08:47		I guess I what I the reason I disagreed at first is to say I think there is general agreement that that's about the right,
02:08:53		that's about the right way to think about this case.
02:08:55		But great difference of opinion about how legally you get there and that leads to a difference of opinion about how you answer it.
02:09:01		I was about you just steal my thunder council. You think this is a status case? The other side thinks it's a viewpoint case. Is that fair to?
02:09:12		I wouldn't say that I acknowledge that this is a status and a message case.
02:09:16		Okay . It's both in yo ur view. I'm sor ry. Whereas they woul d say it's a message case. But t o think about it, th e status vers us message is I just want to make sure we all agree that that 's the right way to think about this case, Show Less Text
02:09:28		correct. And can I explai n why we thi nk that's the right way to think about the case? Becau se we think the first questi on is, is the burden that's being imposed on Miss smith inc idental to a content neutral regulation of conduct that says you can't turn people away beca use of sta tus. So us. The fi rst question is is what she's doing status based discrimination . And if the answer is yes, then the bu rden i s incidental. Even if she thinks that Show Less Text
02:09:48		I got that about an hour ago. But
02:09:51		I apologize.
02:09:53		Now the other questio n I had is in your view this is status ba sed. But Ju stice Barrett's hypoth etical of the inverse s ituation i s messag e based. I wouldn't
02:10:04		describe it as the inverse situatio n becau se I didn't underst and the hypothetical to say that the c ampus w ebsite design company was turnin g people away because of their status. I und erstood it to be turnin g them away because they wanted to sa y things that the com pany would not say. That's Show Less Text
02:10:19		one way of describing it. Or one migh t describe it as two tur ning away those with traditionalist views of marriag e based on their r eligious beliefs. Conservative chri stians for example. Show Less Text
02:10:29		So I guess I just disagre e with that. Justice Gorsuc h. I think the way we answer any status b ased discrimination que stion is we change the protected status. We hold everything else constant. A nd we ask, does the outc ome change? And in MS smith's case, you change the protected status. It's you know, Jack a nd taylor and you ask, will she make the website Show Less Text
02:10:45		except for. That runs into all thos e stipulated fac ts in which the plain tiff ha s said repeatedly t hat she wi ll serve everyone. And she would de ny e veryone this kind of website she but Show Less Text
02:10:59		denying everyone everyone
02:11:02		regardless of status,
02:11:03		right? Bu t i t's race discriminatio n to say I won't serve interracial, I won't create websites for in terracial ma rriage and I won't se ll them even to a white wedding planne r, that's still racist. Can Show Less Text
02:11:14		be it can be status, or it can be message, and we have to figure that out in this case, right?
02:11:20		But the way you would figure it out i s does has colorado va lidly defined it as status based discriminat ion. And I think t he answer that the court gav e it pages 17 27 to 17 29 of ma sterpiece is yes, okay, Show Less Text
02:11:32		go t it, thank y ou. Justice Kavana ugh, just wanna follow up there and ask a bout one thing in yo ur brief, on page 32 of your bri ef, you deal with a few hypotheticals. Hypothet icals you de alt with were uh requiring muslim filmmakers t o promote sciento logy, compelling lesbian artists to design church website s criticizing same marriage, or in the third one I r eally want to fo cus on or forcing wri ters to write spe eches that violat e their m ost deeply held convicti ons. So, those are three hypotheticals, you pos it respo nded to the ot her side, and the n you s ay those hypot heticals, unlike this case, involve direc t burdens o n speech because the y contempla te speakers b eing forced to creat e and c onvey ideol ogical messages, they wo uld no t create for anyo ne. And I think the other side would say that's exactly t his case to to take that third category. These are writer s in essence bein g asked to write speeches tha t violate thei r most deeply held convicti ons. So, I'm trying to fi gure out, give n what you say t here, how you would say this case does not involve the same thing as a writer being forced to write speeches that violate their most deeply held convictions. Because in Show Less Text
02:12:45		each of those hypotheticals, you can 't po sit a content neu tral law, like a public accommodations l aw that would validl y require the writer or th e speaker, the filmmaker t o do what the hypothe ticals posited. It's because in those cas es, as we say, it's a direct burden on s peech. The regulatio n is compelling you to wri te something you deep ly disagree wit h because of the me ssage. It's not incidental to a content n eutral regulation of cond uct, like th e court confronted and fa ir, and we believe it's confronted with here. Show Less Text
02:13:13		You don't think applyin g a um pub lic accommodation, sla ughter a spee chwritin g bu siness that offers to do s peeches or p r relea ses for anyo ne, but they say we're not gon na do this message. Uh I don't think that's this, Show Less Text
02:13:31		I
02:13:32		would say that's this case, and you say it's not because I
02:13:35		think they'd be wrong . So, first of al l, a couple of leve ls, speechwr iters aren't likely to be public accommodations. Set th at aside, suppose y ou had one that was one right until Show Less Text
02:13:43		they are after this case. If you prevail. I mean, that's that's the that's what states could do, but but
02:13:50		I've tried t o give you in response to justi ce alito there is, I th ink a constitutional back stop about core public accommo dations laws, we thin k satisfy o'brien scrutiny if a state wanders from th at. Not so, not so much, but again, just to get to the nub of your hypothetical, we think if the spee ch writer says, here's a speech that e xpresses vi ews that I abhor and I won't write th e speech, they wouldn't do that for anybo dy, regardless of stat us. Now, it may be that th e status of the person who's asking them to write t he speech is somehow correlated with the message in some way, but tha t's still not status based d iscrimination in the way that the law regards discrimina tion against peopl e who are entering into a same marriage as status based discrimination. Show Less Text
02:14:26		Okay, thank you. Justice Barrett,
02:14:30		just say that I'm sort of, trying to think about what you've just said in your exchange with justice, um,
02:14:36		uh uh,
02:14:39		cavanaug h slate, u m, by wond ering whether or not it has som ething to do with the messa ge being i mpl icitly u h, provided in a situation in which what's actually bein g sta ted is the same. So, you know, what would you thin k of a holding that says tha t the Fi rst Amendment p rotects this designer's right to prov ide products that e xplicitly expre ss her beliefs a bout marriage. So sh e absolu tely has the right to say one man, on e woman in every w ebsite , a nd she has the ri ght to refuse t o s ay gay marriage i s great in any website. But what she's really asking for in this case, I think Show Less Text
02:15:25		is the
02:15:26		right t o say the sa me thi ng. Here's the wed ding, it's at this place, etcetera, etc etera, but s he's afraid that if she sa ys it forgave p eople that that will be sort of like an im plicit endorsemen t of their wedding. And so she wants to be able to pr otect aga inst i mplicitly end orsing rig ht, in a way that we've nev er really recogn ized before, in the s ame way when it isn't re ally clear th at that's her mes sage, when we don't when an ob jective observer would kn ow that sh e was really trying to do that. Am I right in t rying to think about explicit versus implicit in this way? I think Show Less Text
02:16:07		that basically maps onto the t est that we're trying to give you, which is to say if she's discri minating based on status and that i ncludes if she's defining the message or the product based on the status defining t he but by the who that's not okay. But other than t hat she has the f reedom to define her own product. And I think I agree with you entir ely that the court has never reco gnized tha t sort of implicit uh p roblem as being sufficient . And in fact, I w ould say in fair, the court squarely reje cted it with the law school s had a claim that was ve ry, very similar in struct ure to say, we don't wan t to implicitl y support thes e policies. We deeply deeply opposed. No one doubted th ere was implicit s upport. No one doubted it was speech, but because it was incidental, the court upheld it. Show Less Text
02:16:46		Thank you. Council rebuttal MS Wagner
02:21:41		This right
02:21:42		to be free from government . Coercion of spee ch is a lso foundati onal to our self governme nt and to t he free and fearless pursuit of truth. Thank you. This Show Less Text
02:21:54		Thank you. Counsel. The cases submitted okay, about a breakup.

Law at the End of the Day

Monday, December 05, 2022

Selling Creativity in the Higher Law of Markets in Religious Scruples: 303 Creative LLC v. Elenis (Docket 21-476; U.S. Supreme Court 2022) Oral Argument transcript 5 December 2022

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