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

 

Pix credit here

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 and may it please. The court Laurie smith blends art with technology to create custom messages using words and graphics. She serves all people deciding what to create based on the message, not who requests it, But Colorado declares her speech a public accommodation and insists that she create and speak messages that violate her conscience. This court rejects such government compelled speech in Hurley. The court considered a very similar issue, asking two questions is their speech and is the message affected? That test is easily met here. Colorado agrees. Miss Smith creates speech and the law undeniably affects her message. She's not asking this court to create new law, but to apply its precedent. Colorado first says this case is about a sale, it's not just about a sale. The state forces Miss smith to create speech not simply sell it. Next Colorado says it can compel speech on the same topic, but Miss Smith believes opposite marriage, honor scripture and same marriage contradicts it. If the government can label this speech equivalent, it can do so for any speech whether religious or political under Colorado's theory, jurisdictions could force a democrat publicist to write a republicans press release, Colorado's last resort is to argue that it can at least compel the same expression, But even the same expression can mean different things like a black sculptor. Carves a custom cross to celebrate a catholic baptism but not an Church rally if the government may not force motorists to display a motto schoolchildren to say a pledge or parades 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. This court has considered pre enforcement challenges before and in this context. It has looked at the facts. This is one of the strongest pre enforcement cases I think that this court has considered and that the parties have stipulated every message that MS smith would create has a unique customized message then that it celebrates a wedding and celebrates a marriage. It's also difficult to imagine a scenario where there isn't a more aggressive enforcement history by colorado Miss smith speech has been chilled for six years. She has been unable to speak in the marketplace. She's ready to do so today and she's ready to post her website statement today, which makes this case ripe

Show Less Text
00:03:03

unless you're not through with that. Sorry. Um, can I give you a hypothetical? It's not really a hypothetical because I happen to have two clerks in my chambers this year who are engaged. So and looking at this case and preparing this case, I looked at their websites. And so the hypothetical is about like I'm going to call it the standard website, they both have their names on it, the date of the wedding, a picture of the couple. Then there are a bunch of places that you can click to and one is um, the schedule of events and the other is travel and hotel arrangements. And another is favorite things to do in town while you're here. And another is registry. So that's what most websites look like. Yeah. And they're not particularly ideological and they're not particularly religious, they're not particularly anything alright. And uh, and then there's a tag line just like the tag line in this case about sort of who created the website or whose graphics and design and typefaces and so forth, were used in the website. And so one of them says, I'm going to substitute a woman's name just to not advertise. But one of them says Made by Love with Amber by Made with Love by Amber. Right? It's actually bigger than the 303 tagline. Um, so I guess what I wanna know is suppose Amber 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 providing these templates and she has all these designs and, and, and uh, typefaces. And, and that's what people use when they create their own website because they give her the date and they give her the, you know, the, the list of hotels and so forth. So can Amber 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 speaker does have the ability to decide not to speak under the law. But I think the hypothetical that you're mentioning is assuming that it's a plug and play website, essentially that the website is already made and that the speech creator isn't making any additions to 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 does something similar. You have lots of graphics, you have, you know, typefaces and, you know, maybe, you know, some are a little more, uh, you talk to the client and some are a little bit less, you talk to the client. But basically, you know, clients are coming in and they're saying, uh, we just want a standard website, you know, that tells people where to stay and what how to travel there and uh, and you know what our favorite things to do are. And and 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 this court has already recognized that there is ideology and different views on marriage. And the courts promising Obergefell is to protect those who would believe marriage is between a man and a woman from having to express a view that violates our conscience. But

Show Less Text
00:06:30

okay, so I think that if I understand you you're saying yes, she can refuse. Because there's ideology just 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 announcing a wedding. And if you believe the wedding to be false, then the government would be compelling you to say something that you otherwise wouldn't say which makes the content. So it's

Show Less Text
00:06:52

really nothing about the content of this speech. I mean, it could be mike and Pat and you don't actually even know whether Pat is a woman or a man. There's really nothing about the content of this speech. Am I right? In your case, you have like, scripture examples and so that might, you know, be different maybe, but you are being forthright and saying it's really not about that. It's nothing about the content of the speech. It's just that the content is being uh whatever the graphics and typefaces and you know, uh you know, which hotels are uh you know, have been reserved for the wedding. It's being used in a same marriage?

Show Less Text
00:07:38

No, it's not about the use it. What is it's about when a person is creating speech? It is What is the message that they are expressing the Hurley framework...

Show Full Text
00:08:08

So their message is not actually the content of the website. I mean this is Justice Kagan's point. We could have a situation in which the identical website is being offered. One to harry and an and one to harry and steve. But everything on the website is exactly the same. I think I hear you saying

Show Less Text
00:08:32

that the message

00:08:33

that the designer would be sending when she offered the website to harry and steve would be different and contrary to her beliefs and that. So, so it's it's the implicit message that she's endorsing that wedding. That's the problem.

Show Less Text
00:08:51

No, she's not, it's not about whether she's endorsing it, she's not speaking through anything but creating the speech. And when you switch out those names, you're switching out the concept and the message that is actually in the website. Think 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 particular message. But I looked and to your uh proposed website and I turned to page 51, it says save the date Lily and Luke November 17, 2017. So what's the message if it says save the date lily and um Lillian Lillian 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 website. It's something that I send meaning you your clients. I send it to my family and friends or lily and luke. Send it to their family and friends. You don't send it. They go to this website. You're not inviting them to the wedding 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 ghost writer who writes an anonymous press release or a book? It is still that writer's speech. The whole point of the compelled speech doctrine is to ensure that what's the limiting

Show Less Text
00:10:20

line of yours of yours. Um Justice Kagan asked you about another website designer. But how about people who don't believe in interracial marriage or about people who don't believe that disabled people should get married? What's where's the line I choose to serve whom I want? If I disagree with their personal characteristics like race or disability, I can choose not to sell to those people this website because it's my speech

Show Less Text
00:11:01

Not at all your honor. The Hurley framework provides that in a public accommodation context. The first thing the court looks at is is the speech creator otherwise serving those in the protected class and expressing other messages in the context of race. It's highly unlikely that anyone would be serving black americans and other capacities, but only refusing to do so in an interracial marriage contact,

Show Less Text
00:11:24

suppose we agreed that the website designer uh could not refuse to uh provide that service to a same couple if the website is of the kind that justice Kagan described, What does that say about the particular case that is before us on stipulated facts? Well,

Show Less Text
00:11:53

it would say that the court isn't considering those facts because that's not this case that's presented to them, but at the same time 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 hypothetical where there is a website and basically all the website operator does is to put in the names of the two people who are getting married

Show Less Text
00:12:27

a service that or speech creation that MS smith provides. But if she did provide that, if it's a plug and play website where the couple for example, is putting in their names and and using their website, then you don't have compelled speech because you don't have a speech creator. But even in the context of putting in name. Sorry,

Show Less Text
00:12:45

show me on your website. Show me in on the pages of your petition for a writ of cer CRE show me a page on that website that is an endorsement of a marriage 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 that your story, your photo gallery, It's the couple's photo gallery. Page 54 is funny dating story, it's their story, not your story. I'm looking at every page and basically it's the story of the couple. It's a date on page 51 52 is our special day 53 is R. S. V. P. Our photo gallery 54 is a funny dating story. I keep looking at all of the moth apps and all of them relate to what lily and luke are saying or doing who they are. Who are their grooms who aren't there? Who's their bridesmaids? 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, book authors, newspaper editors, those who write all kinds of publications, maybe writing about 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 ask you a question about a heterosexual couple. So in response to justice. Sotomayor's questions I took it that your website where you say why a wedding website? Um you go through and it seems like careful Miss smith was careful to say things like I fully customize the look feel theme message, color palettes, et cetera. And then there's the engagement story page and inspired by a page inspired by you and written by Lori that captures and conveys the cherished storybook of your love. So, I want to ask you a hypothetical about a heterosexual couple that comes to your client and their wedding story. You know, that they want to write under the engagement story page goes like this, we are both cis gender and heterosexual, but that is irrelevant to our relationship, which transcends such categories. We knew we were 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 publish the site because her objection assuming that the marriage is between a man and a woman, She would publish it and that there's

Show Less Text
00:15:43

though that narrative I assume is inconsistent with her biblical views about marriage, I'll give you another related one. Heterosexual couple comes to her and in the engagement story part writes a story that goes like this. We met at work. We were both married to other people, but what began as late nights at the office quickly turned into love after six months, we realized we could be happy only with each other. So we just started to begin our story today got divorced or marrying each 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 would embrace or express a message that would essentially say it doesn't matter whether there is a marriage between a man and a woman, she wouldn'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 the court decided the case and Hurley. But it's also in other cases as well, the pacific gas in Miami herald cases. This court has routinely looked at compelled speech cases to determine if the

Show Less Text
00:16:42

can I just ask you to clarify before we move on. When I first asked you the question about the cis gender heterosexual couple, you said you thought she was publish it. But then it seemed like you wavered and said 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 of gender or sexual orientation were irrelevant to their relationship, because they believe that those categories don't matter what matters, is their Union of souls

Show Less Text
00:17:11

know that she would not create a website that would say that because that would violate her beliefs about what scripture holds on marriage. In the same way though, this law and the compelled speech doctrine protects the LGBT website designer, who won't be forced to have to create a website, essentially advocating for a view of marriage 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, one can view these websites or last time around we had cakes, um, as either expressing the maker's point of view or the couple's point of view. And, and that's really at the heart of a lot of this. And I guess I'm I'm a little confused because sometimes, as as I understand it, you're saying inherently here, um, it is my client's point of view and not just the couple's point of view. I'm being compelled to speak. I get it. And sometimes Karlo agrees with you. For example, when it comes to, uh, the example you just gave, which is why I popped up. I believe it was William Jack. And the masterpiece cake, uh, example where Carlos said he didn't have to create cakes that uh, that spoke against same marriage. That that would be his compelled speech, not just the couple's speech. So what do we do about this level of generality problem? If you will, where people slide back and forth 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 rule that says if the speech is being created and there's an objection and that objection is contained in the message. It is protected speech and the government can't slide up and down me

Show Less Text
00:19:05

why it's not protected speech the identical message that, um, that, uh, Justice Barrett put forth, but by a disabled couple, and you say I don't want disabled people to get married. I think propagating a disability is against my personal belief, it doesn't have to be religious because we're not dealing with the religious part of this. I don't want to speak that message. I too believe that to disabled people getting married and telling their story of how they got in love. I'm not going to serve those people because I don't believe that they should be married. What's the difference 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 accommodation cases, this court has routinely looked at whether their speech and whether the message is affected and 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 to the customer or to the subject, it goes to the photographer. And there's a reason for that. That reason is because you were requiring that artist to speak a message. It is their work. It might also be the customers and the customer can use that. But the First Amendment is broad enough to cover the lesbian website designer and the catholic calligrapher. The line is that no one on any side of any debate has to be compelled to express a message that violates their core convictions. 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 just sort of helps me to flesh that out? Because I also sig offered you suggest earlier that there's something different about race. Maybe the person wouldn't sell to someone um of a different race. So, so suppose, um, you say that photography is expressive. Can you give me your thoughts on a photography business in a shopping mall during this holiday season that offers a product called scenes with santa. And this business wants to express its own view of nostalgia about christmases past by reproducing classic 19 forties and 19 fifties, santa scenes, they do it in sepia tone and they are customizing each one. This is not off Iraq. They're really bringing the people in and having them interact with santa Children because they're trying to capture the feelings of a certain era. Um, but precisely because they're trying to capture capture the feelings of a certain era. Their policy is that only white Children can be photographed with santa in this way, because that's how they view the scenes with santa that they're trying to depict. Now. The business will gladly refer families of color to the santa at the other end of the mall who'll take any, but but and they will photograph families of color in other scenes, other scenes. So they're not discriminating against the families. What they're saying is scenes with santa is preserved for white families and they want to have a sign next 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 mean, the objection just like your clients objection is to expressions that violate their own views of what is being depicted. And so their view of what is being depicted is that a scene with santa and a child on the lap and all of that in sepia tone trying to harken back to the good old days, should only have white Children in it. That's their firm belief they are not willing to take photographs of black hispanic asian Children on santa's lap? Why is that any different than a situation like this?

Show Less Text
00:24:08

Because the specific objection that you're including is not necessarily in that photograph, but even if it were this court has protected vile, awful reprehensible, violent speech in the past and it is never coming.

Show Less Text
00:24:20

I'm just asking you why is the objection of the web designer as justice? Both Kagan and Sotomayor's pointed out when we look at your examples, they just say things like please come to the wedding 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 of the messages in that photo, but there are difficult lines to draw and that may be an edge case, but this is not we have a creative a creator of speech 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 am sure. And that the message isn't in the product, it's not in the photograph. But even if this court were to find that it was, the court would still have to protect the speech and the court could draw a line in a different place as it has juxtaposed loving 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 decent and honorable people hold beliefs about marriage, believing that there's a gender differentiated marriage and that that's based on reasonable religious and philosophical premises. When we review loving, there's a very different how to

Show Less Text
00:25:56

write this decision for you. That draws the line just on gay marriage, because that's what you seem to be saying right now, but draws a line that doesn't affect my example of a disabled person or an interracial couple. You're saying it's just because it's compelled speech.

Show Less Text
00:26:20

I'm saying that the interracial couple, the disabled person, the lesbian graphic designer, the democrat, the republican. No one should be compelled to speak a message in this court has never found a compelling interest.

Show Less Text
00:26:33

You're you're saying a print shop, a web designer, a cake maker, a jewelry photographer, a jewelry maker. They can refuse to serve anyone. They want to refuse because they have a deeply felt belief that serving taking pictures of black couples, black and white couples, taking pictures of disabled people. People are gonna believe 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 every free speech case the court looks first is their speech in many of the situations you raised there

Show Less Text
00:27:16

But why not? I'm saying your identical website And I don't see a page in here where it says, I am speaking 303. That's on your personal website. It's not on the wedding website. I've asked you to show 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 compelled speech doctrine doesn't apply once you've entered that speech into the stream of commerce when the speech is completed, the compelled speech doctrine no longer applies. But in addition, there are 20 states that have filed an amicus brief in this case and said they're right now using their public accommodation laws to allow message based protections as Hurley would require. And they're not experiencing these issues. And you're not

Show Less Text
00:28:21

asking for that. You're saying, I don't want to serve a particular person, a disabled person, black or white couple, a disabled couple, a uh, a gay couple. You're basing it not on the nature 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 characterization the stipulated facts in this case or that Miss smith has LGBT clients, she serves them regularly. She has

Show Less Text
00:28:51

that's different by the way, what you're basically saying is in our uh, olek barbecue case. Um, the company there said I'll serve blacks but only on a take out window, not inside my restaurant because that sends 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 court found in her early, she's being asked to shape her speech by a third 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 sit down to eat a meal by a full chef who creates this beautiful picture on a plate. Why can't he say I make specialized meals for my clients? I will not serve a black person. I want to serve a disabled person because they can't appreciate fully 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 and the public accommodation law is broad enough to ensure that we're not crushing consciences, not 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 website, uh, was same as it is. But the only, uh, indication of any limitation was a tagline at the end saying these services are for heterosexual couples only. Uh, could that constitutionally be applied under 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 particular case, all of her websites are created their original, customized to the story. And so, in that instance, she believes same marriage to be false and couldn't create the speech.

Show Less Text
00:31:27

Okay, what if it said, I won't provide websites for anything other than heterosexual marriages because of religious reasons. Could that be covered? Or is it simply the invocation of religious basis for the objection that protects it from coverage under the statute,

Show Less Text
00:31:48

The religious basis is not determinative here. This court has provided broad protection for religious speech, but it wouldn't matter. This compelled speech doctrine applies in a host of situations and cases that are not religious,

Show Less Text
00:32:00

I guess. I don't understand. Uh, that answer. In other words, is it simply adding for religious reasons 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 that the objection is to the message she's being asked to create. And so if she believes she's being asked to create a message that violates her convictions, whether those convictions are based on a moral reason or religious 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 you back to my opening questions and then Justice Alito's question about how your case is different from my hypothetical and maybe the way to sort of cut through some of this is to not make it a hypothetical and just ask about your client. So mike and mary go into your client, we love your graphics, we saw them someplace else. We love how this looks. Um here's what we want, we want the standard site. Our names are the picture, the hotels, the registry, you know, 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, okay, So now it's not Mike and mary now it's Mike and Mark, and they want the identical site, we saw Mike and mary's site, we loved it, we're getting married, you know, you know, all they want to change the date maybe, or, you know, their names, whatever, we loved it, and and they don't get it. And the question, and you say no, right, you wouldn't be up there if you weren't going to 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 difference is one couple is opposite One couple is same How is this? You know, what, what are the different meanings? What is the speech that your client is expected is required 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 wedding. I mean, this is a standard site. You know, there's not a whole lot of Gosh, isn't this great? It's just like, here's the registry, you know, it's announcing the wedding. It's announcing where to get the hotel reservations 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 what invitations do, right? So, you know, next, we'll have the station are up there saying, you know, we print the state the stationery, right? I mean, that would be the same. It is announcing the wedding. What's the speech that's been required of your client that we I mean, I'm going to have lots of questions for these guys too. But in in that 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 same weddings contradict scripture, and she's announcing a concept of marriage that she believes to be false. And in addition to that,

Show Less Text
00:35:26

but that just sounds to me like I would be participating at a wedding. I would be, you know, lending my services to a wedding, you know, as Justice Sotomayor suggested the florist, the baker and the guy who provides the chairs are also providing the services in a wedding that they don't like. Um, uh, so why are they any different? The person

Show Less Text
00:35:49

providing the chairs isn't providing speech. But when you are engaging in symbolic speech, whether that be through the creation of a custom wedding cake or a custom wedding website, you are creating speech even though

Show Less Text
00:36:01

the site doesn't say anything about that, It doesn't say, wow, gay marriage is a wonderful thing. It doesn't say it doesn't even say, you know, we're here to celebrate this wonderful marriage. In my hypothetical, it doesn't even say that

Show Less Text
00:36:19

again. The announcement of the wedding itself as a concept that she believes to be false. And the entire purpose behind the compelled speech doctrine is to avoid these ends by avoiding these beginnings. It's to ensure that individuals don't speak messages that betray their conscience and that applies just as much to the 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 council, um, we've spoken a little bit about how Colorado has handled this compelled speech question differently with respect to different messages, Um, some that it prefers, others that are dislikes. I'm curious how other states have dealt with this conundrum. Um, besides Colorado, And how you, which ones of those you think we should take account of 20 states

Show Less Text
00:37:07

filed an amicus brief in support of Miss smith and expressed to this court that they're applying their public accommodation law to provide message based object to protections, just like the court did in her early, following the same test that's being articulated today and they've been doing it successfully. Yes, there are difficult line drawing questions, but those are in every speech case, whether it's sleeping in the park or putting on an armband. The court doesn't have to resolve every single one of them, but we do have the rules, and we need the court to provide guidance. Again. Reaffirming public accommodation laws cannot compel speech creators whether that's artistic expression with symbols or pure speech.

Show Less Text
00:37:46

And just so I make sure I understood your colloquy with Justice Barrett. Um, The objections to compelled speech here on religious grounds could include in fact, do include some objections with respect to certain heterosexual marriage. Is that there are certain heterosexual unions that your client would not speak. Is that correct?

Show Less Text
00:38:09

Certainly. And that's in the stipulated facts in terms of she declines messages based on the message and she has declined other projects based on the message that have nothing to do 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 Kavanaugh From the briefs, I saw a lot of agreement actually between the parties in this case on basic legal principles. Uh in your reply brief, page 15, you say that hairstylist, landscapers, plumbers, caterers, tailors, jewelers, and restaurants ordinarily wouldn't have first amendment free speech right to decline to serve uh same wedding. At least. That's how I read that reference in your brief. But you say artists are different um like publishing houses and I think the other side will hear from them, but agree that artists are different uh because of the First Amendment rights that artists uh possess. But then as least as I read the briefs, the case comes down to a fairly narrow or narrow question of how do you characterize website designers? Are they more like the restaurants and the jewelers and the tailors? Or are they more like uh you know, the publishing houses and the other uh free speechogs that are raised on the other side. That's what I took away from the briefs? A lot of agreement on broad legal principles and um some disagreement about how to characterize the website designers. So why are you write about how you characterize website designers? Or put another way, why are they different? 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 other examples speech is not an issue that is creating speech announcing a wedding or announcing anything. Um and art is different. And so while there may be agreement on that, there also is a problem with Colorado's advancing theories that keep narrowing and providing alternatives. But in the end, one thing is certain those who object to same marriage and creating messages about them. Those are the ones that can't speak, but everyone else seems to be able to do so under Colorado's theory. In addition, this court has already articulated how we determine whether speech is involved for an artist. And I think the court could follow those tests here with words, graphics, videos and against symbolic speech.

Show Less Text
00:40:41

So, for you, um, as as uh there's an effort to protect both the equal rights of gay and lesbian people and same couples at the same time protect free speech rights. Your line is look at whether the action of the business involves speech.

Show Less Text
00:41:03

And the second line would be to look at what is the objection that the creator is asserting and would that actually be in the final product because that's how this court has ferreted out protection all objections. So if if a speech creator articulates an objection and it's not in that final photograph, the objection or the message isn't in there, that's one way we can know another is if they're refusing to serve an entire class of people and design other messages, 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 things that you have on page 15 of the reply brief at least. Ordinarily you had a caveat in there, but ordinarily wouldn't I wouldn't have the same right that your client here does. He's a website designer. They Wouldn't

Show Less Text
00:42:02

have a free speech right? And as in terms of your initial statement about the parties agreeing, I do think it's important on pages 17 and 32 of the United States brief there even conceding that it's a burden on a speaker to have to express a message that violates their convictions. 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 Justice Kagan asked you are hard because they seem like they're not creating, I mean, you're on your strongest ground when you're talking about her sitting down and designing and coming up with the graphics to customize them for the couple. So let me just clarify exactly what your position is on things that are already created in the past. What if it is plug and play. Um I don't know that much about website design, so I don't know how it could be plug and play, I'm sure it can be, she, she does the programming, the coding, she has stock pictures and she sells that as a product and the customers, you know, mike and Henry or 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 way that if you sold a bible commentary, you wouldn't be able to decide whether the bible commentary will be burned or it will be used in a church service, the stream of commerce, that's been put in the stream of commerce,

Show Less Text
00:43:22

okay, so why is it different just as king and said, so maybe you do create customized websites and you've created one for you know, Lillian luke and then you know mike and Henry see it and say you've created that already, we love it, we want to buy it, don't create anything new for us, just give us exactly what you did for them. 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, if I take your hypothetical on its face, we would be selling essentially a web, she would be creating a website that's exactly the same with the same pictures and text and graphics and videos of an opposite couple and selling it to a same couple, which seems highly unlikely, they wouldn't use that to celebrate their wedding, so in terms of if you're asking her to change the text, to change the logistics, to change the names, You're changing bride and groom, you're changing the couple's name, you're changing, we know context changes meaning. Justice Ginsburg said that in Yates versus United States, even the same words have different meaning God bless this marriage means something different. My body. My choice means something different to an anti-vaxxer or a pro abortion opponent, a proponent. So in that sense, that's why she would object if she were changing the words in the text, but of course she would sell the same website celebrating an opposite wedding to a same couple.

Show Less Text
00:44:39

Okay, so context changes meaning. What if instead of a graphic designer, she's a songwriter and she writes a song, you know, let's say at last or Wind Beneath My Wings or something that people want to dance to at their wedding. And the lyrics are out there. You know, it could be played at a heterosexual wedding or could be played at a gay wedding once the artist has created that song. Can the artists 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 licensing rules and how all that would apply in terms of the contractual relationship, but in terms of just having a song used at a wedding, assuming that would otherwise be okay, there's no other legal rights. She couldn't, that was in the stream of commerce. But I think it's important to point out that if that artists were being asked to perform that's Song in a live way, for example, saying at a democratic inauguration and they were asked to perform at the Republican one. Under Colorado's theory, they could be compelled to do so in a number of jurisdictions, 19 jurisdictions have political ideology. And 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 typically sort of a freelancer and they are selling their own messages, they're not um purporting to be a business for hire in in in any meaningful sense. And so I want to kind of go back to um Justice Kavanaugh's thought of like, where do we place your client as between restaurants and artists? I thought um that there really isn't that clear a distinction in a situation like this, because your client is an artist for hire, essentially. Yes, she does customize things. They're not off the shelf, but she purports to be a public accommodation, providing uh customized things to anyone who pays her except for people whose messages are those that she disagrees with. And I just don't know that I've ever seen that kind of scenario, even in the cases that you're talking about, because sort of what Justice Gorsuch was saying. It's it's relying on the implicit uh message that she does not want to convey by supporting this person. There's an explicit message in the actual work, but to the extent that actual work is identical to the to the work that she would otherwise sell to the gay couple except for their names. Then she is implicitly saying, you know, by selling this, I'm going to be violating my own beliefs. Um so let me just ask you another quick hypo. So I'm trying to understand the extent to which this matters, that she's a speaker um as opposed to a restaurant. So I sell food and one line of products that I make is from scratch for particular customers that are based on my grandmother's cherished family recipes. My dearly departed grandmother was clear that she only wanted to provide this kind of nourishment for people who share our same religious heritage. So I call these products grandma Helen's protestant provisions. And I sit with each customer who comes in and I hear about their faith and their family and I customize the recipe for them after having this discussion. So the food 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 and in this situation, as you said, that in terms of a caterer, the caterer is not engaging in speech in terms of your initial statements or questions, speeches, speech whether it's paid or pro bono, but don't we have cases

Show Less Text
00:48:31

that suggest that people's conduct can be expressive. I thought there was a whole line of cases that said, you didn't have to actually have an express message. You could be acting in such a way as to express a message. And in my restaurant hypo I'm saying if I sell to non Protestants, I'd be expressing a message contrary to grandma Helen's core beliefs. You're speaking

Show Less Text
00:48:55

through conduct at that point. And that is a different analysis in terms of the expressive conduct tests. The court has already articulated what those tests are and what a reasonable person would observe. But in that case, you're talking essentially about status discrimination. There's no message um that she is creating That would be compelled in that way. That would simply be service. In addition, though, I think it's important to recognize the breadth of the public accommodation law. You started with a statement about freelance writers at oral argument at the 10th circuit. My friend in Colorado admitted that freelance writers are considered 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

my photographer could is speaking by by being forced to create uh santa photo with um minority Children in it. That they don't want to they don't think

Show Less Text
00:49:56

The issue in that hypothetical isn't whether there is speech the issue is in that context, are they otherwise serving those and expressing other messages? And does the objection that they're asserting line up with the message? The court in Hurley did the exact same analysis to say is the parade organizers otherwise, but it was a

Show Less Text
00:50:14

private association, it wasn't a public business. What I'm asking you is I have a public I'm a photographer. My belief is that, you know, uh, I'm doing it's a wonderful life scenes. That's what I'm offering. Okay, I want to do video depictions of it's a wonderful life. And um, I'm knowing that movie very well, I want to be authentic. And so only white Children and families can be uh, customers for the that particular product. Everybody else can, I'll give to everybody else. I'll sell them anything they want. Just not the it's a wonderful life depictions. Um, I'm expressing something right for your purposes at that speech. What about what's the other step? It's speech And I can say anti discrimination laws 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 would say, first of all, in the same way that this court when there is a message in a status and it's overlapping the court would say that message wins in that 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 the example of the musical of Hambleton. 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 hiring in terms of race, that you're

Show Less Text
00:51:37

sort of slipping into it like 1000 different analogies. I just want I just want you to focus on whether or not I am I have speech when I am a photography bill business and I hang out my shingle, everybody can come. But I have certain products that I will only sell to non to white individuals because the speech that I'm trying to depict is the authentic depiction of that scene as I understand it and that I want to put out there in the world, and it has my signature on the bottom of it. So, people are seeing my photos and I want my photos of. 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 iteration of the hypothetical, the objection is changing. What I can articulate is the test. And I can also say that when there is an overlap between message and status message does win and Hambleton provides 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 problem here. In terms of trying to answer Justice Alito's various hypotheticals that were presented with a record of stipulated facts and that the opposed your friend on the other side actually stipulated to the application of the statute. So it's really hard for us to know and figure out and determine in this context how the statute would actually apply because we don't really have a real record on that on that score.

Show Less Text
01:06:36

That's correct. And I would say that uh we've heard some discussion from my friend about sort of colorado's history, but what we haven't heard is any specific example since this court announced masterpiece of colorado enforcing this law, the state enforcing this law against anyone. My question really was not whether this website is a public accommodation. I understand that's been stipulated. That wasn't my question. What I'm trying to understand is the breadth of your argument and what I get is that you're making a tiny sliver of an argument. So the website can put anything on its website, uh, even something that will blatantly or subtly tell a same couple. Well this is not a service that I want, they can do that. And the website can also potentially get itself out from being a public accommodation simply by reserving a degree of selectivity. That's what you've told me. So. No, I don't think it's just by reserving a degree degree of selectivity, but I think the more selective and sort of curated the processes, it makes it less likely to be a public accommodation as the court recognized in Fulton. All right, let me ask you. Uh, and then I'll finish this line. Um, some hypotheticals in a brief submitted by josh Blackman. Okay, a uh a jewish man and a jewish woman who were engaged to be married to ask a jewish website designer to build a website to celebrate their upcoming their nuptials. No problem. Okay, another jewish man and a christian woman who were engaged to be married. Ask a jewish website designer to build a website to celebrate their their nuptials? Big problem, quote many jews consider intermarriage an existential threat to the future of Judaism. Does that website have to accept the second uh, couple again, as we talked about before, if the jewish website designer has very explicitly jewish themes on the wedding, they don't need to be on the website. They don't need to take that down for the inter religious couple that comes, but they if they offer a general service to the public, they need to offer that regardless of the customer's religion. So the fact that they offer this to that this is a jewish that is offered mostly to jews. That's enough to make it more exclusively to jews. That's enough to make it sufficiently selected to get them out from your No, I'm drawing a distinction between what the website designer chooses to put on the website and who the website designer sells the website to. The website designer can choose to put on their websites whatever they want, but they just can't refuse to sell if they're a public accommodation. Uh they can't refuse to sell that website to someone solely because of their customers or the couple's religion. An unmarried jewish person asks a jewish photographer to take a photograph for his j date dating profile on a dating service. I gather for jewish people. Alright, maybe Justice Kagan will also be familiar with the next website I'm gonna mention. So next, the jewish person asks a jewish photographer to take a photograph for his Ashley Madison dot com dating profile. I'm not suggesting that. I mean, she knows a lot of things I'm not suggesting. Okay, does he have to do it? Well, again, it would it would what colorado look, it depends what colorado looks to is what services the photographer makes available to the public and if if the photographer makes that service available to others taking pictures, you know, for use on websites, then probably yes, but it depends on Okay, Justice uh I really will stop just Justice Jackson's example of the the santa in the mall who uh doesn'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, okay, gay couple walks in and says this is the harder one. Alright um gay couple walks in and says uh I'd like the standard website, you know, everything standard, the kind of website we were talking about before, but I want something in addition to that. Um I want I want in the on the home page uh the website to say God blesses this union, All right. And Miss Smith says uh that's a problem, Miss Smith says, and the gay couple says, well you would say that if if we were an opposite couple, right? And um and she says, we would say that if you were an opposite couple. And the gay couple says, well, what's the big deal 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 think it's different in part because it implicates the very compelling free exercise concerns of the vendor which aren't present in this case.

Show Less Text
01:13:05

possible. I get the I get the idea that there's a kind of religious element to it. Um I wish I could think of one that didn't have that component because I feel like there's something else going on there as well that it is a statement of opinion about the nature of this marriage which, you know, in my earlier hypotheticals I took care to remove, but now there's a kind of statement of opinion about the nature of this marriage and unlike the kind of our story things, which is like obviously it's their story, it's not the designer's story, you know, unlike that, it feels a little bit to me as though it could be a kind of third person saying God blesses this union. And who would the third person be other than the person who's put the whole websites together. So I have difficulty with that hypothetical, and I'm wondering what you think about it.

Show Less Text
01:14:01

So I agree. Justice Kagan. And I think imagine a statement that says something along the lines of, you know, uh, there's a dating website that meets people and then the people that they connect through that says, you know, this is a wonderful marriage that we support, Um, no religion, right? And then where you have that direct speech, uh, it does get a little trickier, but but but what I would say is this is, you know, the default rule would still apply even though that is an edge case. I agree. Because the question is, what services does the company choose to provide? And if it chooses to provide that service to somewhere here, it's, you know, it may be that that looking at the services, will I evaluate your marriage and I give it a thumbs up or thumbs down and, you know, I assume you don't want the thumbs down on the website. So if you get a thumbs up on the website, so that's a fat question, I think that would be hard. But if it was a state that was made solely based on the status of the person seeking 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, um, back to my black santa example, I suppose it's a state that uh defines uh a public accommodate prohibits a public accommodation to discriminate on the basis of political ideology. So then the then the picture has to be taken. I think uh that is likely those political ideology distinctions face much more difficult constitutional scrutiny and I think are separate and kind from the kind of characteristics we're talking about here, which are categories of invidious discrimination. Can really think in most circumstances, political ideology did not satisfy the constitutional requirements. So it has to satisfy a constitutional requirement. Your argument is dependent on that. Yes. Because even under O'brien, there's there's we have to show a basis for what we're doing. In light of what Justice Kennedy wrote in Obergefell about uh honorable people who object to same marriage. Do you think it's fair to equate opposition to same marriage with opposition to interracial marriage? Yes. Because in how the law applies not in in discussion uh with folks because of course, honorable people have different views on this issue, but I think when you look at what Justice Kennedy said, uh they're the way to honor that requirement is as this court is set forth in fulton and masterpiece of having a rigorous interrogation to make sure that there are uh neutral and generally applicable laws applied. In fact that way they don't single out religion. And then the very next sentence of what Justice Kennedy said in Obergefell talked about when, when it transformed that honest and decent disagreement, transformed into enacted law and policy, the necessary consequences to put the imprimatur of the state on that exclusion. And I think if this court were to say say that the imprimatur of this court would allow a web designer to say no same people allowed or allow a school photographer to say no pictures. Do you think Justice Kennedy would have said that there are that it's honorable to oppose to discriminate on the basis of race? No, I don't think so, only just give you 11 more hypothetical, suppose someone offers the service of writing customized wedding vows were uh customized speeches to be given at a wedding by people who have an idea what they would like to say about a family member or a good friend, but they just don't feel they're very good with words. They can't put it into words and let's say this, this outfit is just starting up, They don't have a lot of clients, they're sitting at the, you know, they're sitting by the phone and their computer waiting for somebody to show up so they will take anybody alright. Um can uh can they be forced to write vows or speeches that espouse things they loathe? No, they cannot be forced to write vows or speeches that espouse things they loathe because that's not a protected characteristic. But they cannot assume in your example is is the prohibition or the limitation against compelled speech limited to things that are unconstitutional? No, I think I think there are so, why does it matter? Well, because here things that is not a protected characteristic anywhere, anywhere that I know of. But on the contrary, it doesn't fall within, you say it doesn't fall within your statute, but maybe it's going to fall within the statute. It may fall within another statute. Under under any level of scrutiny. Here you look at the state's compelling interest 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 time in the court's history correct that it would say that a business open to the public as this peoner has said it is that it's open a commercial business, open to the public serving the public, that it could refuse to serve a customer based on race, religion 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 morning? Just barely must not feel like it's standing where you are. I'm here all day. Just it's good to see you. Um We've had some discussion about whether websites are speech or whether they're some service off the shelf and I I like a lot of my colleagues don't profess to know much about this, But I do know that there are some stipulations that you made in paragraphs 81-82-83, which say that this is customized, personalized, an expressive activity in each and every circumstance. What do we do about that from your perspective? Don't we have to take that as given? Yes, but it doesn't change the analysis. Why not? Because I do see a thing very different. If I put a cake on display, it's been made, it is what it is or a website that you can then go customize yourself. And another thing to commission an expressive activity and and to require somebody to create an expression. Those are two different things analytically in our law. So help me out. I think along with the stipulations, we need to look at the specific relief that the company seeks. But those are the stipulations stipulations 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 another thing. Mr Olson, But how we analyze the case depends upon those stipulations. Of course it does. Okay. And then separately, I was intrigued by your answer before my friends at the 10th circuit about freelance writers and people like that. And the notion that Colorado could compel, for example, an individual to write a speech or a press release on behalf of, say, a religious entity with whom he or she disagrees. Does every press release writer, freelance writer have to write a press release for the Church of scientology. Say, even though the beliefs of that institution may be inimical to the person, not at all. And and I admit I don't have firmly in mind the exact contours of my answer a couple of years Go to the 10th circuit, but I will tell you what Colorado law says, which is a freelance writer, may or may not be a public. Let's assume they are under your definition pretty broad, very different than the historical understanding of public accommodation. But we've gone over that. So assuming away that hard part of the question getting to to what limitations all that Colorado law requires is that if you choose to off for service to someone, you need to offer that service, I offer to write press releases for anyone. It's not who, but it is a what and what is I won't write a press release that expresses religious views or um, that I disagree with. Well, I think certainly a a freelance writer who is a public accommodation, could say, I don't write press releases that express religious views full stop. I won't write that for anybody, right? You can No, no, no, I'm happy to do it generally speaking, but just not ones I disagree that there are many I would agree with across a wide variety of religious faiths. Um but I'm not gonna do it for some with whom I disagree. Well, even in that circumstance, what colorado looks to is the service you actually provide and you choose the service, so long as you could say I yes, Colorado would compel that person if the answer is no, because Colorado could say you as a speechwriter could say I write uh religious speeches that I write, touch on a few traditions that I have knowledge of, and I don't write speeches that touch on other knowledge is no, no, no, it's not, not. You're changing my hypothetical Mr Wilson, that I disagree with that, I find offensive to my religious beliefs. That's the hypothetical, so long as you would sell that to everyone, not based on their religion, but you can define the contours of the product, you can choose the contours of the product that you sell, but I call it speech but you can call it a product if you want, we'll call it speech. You can choose the content of what you say, you just can't what you say you sell to. Okay. And so you could say, I'm gonna, I'm gonna focus on these things and but I need to sell that to everyone. Even if the person who wants to buy it as a member of a religious faith that I disagree with, that, I will write a press release for many faiths and many belief systems that are but they have to be consistent with mine and I won't do it if it offends my religious faith. Good to go so long as you sell that to everybody. Yes. Okay. Alright. What's different about this case? Because I'll just finish the question and I are already ready to answer it. But we have an individual who says she will sell and does sell to everyone all manner of websites, but she won't sell a website that requires her to express a view about marriage that she finds offensive to her religious beliefs. What's the difference between the two cases? I'm struggling to understand the differences And again, looking at the specific relief the company seeks. Put aside the specific relief the company seeks because it's up to courts to fashion relief. So that's that's not going to persuade me to work on something that might be the difference. Is is that that distinction the company has chosen to say they want to provide wedding websites generally and they will not provide all manner of websites that this individual will provide. All manner of websites. Just not one that celebrates requires her to write something. Words on a page, customizable, all the stuff is stipulated to um, that celebrate a particular thing that she finds offends her religious beliefs. I still, I'm looking for the distinction between the two cases. One you say is okay, The other one not okay because the company, unlike our first example of the speech writer, the company here says in no uncertain terms, will they ever sell 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 stipulations that Justice Gorsuch reviewed with you? Because if it's speech you know, as the stipulations, Justice Gorsuch Red did and she has 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 want to give you a hypothetical that doesn't rely on disagreements, philosophical or otherwise with speech, but just a desire to promote a different kind of speech. So let's say a newspaper is running as many newspapers do runs marriage announcements. And so, you know, the new york times says that such announced, which it picks have to satisfy its normal editorial standards. Let's just say that the newspaper for gay pride month decides that it's gonna run to promote and recognize same marriage only same marriage announcements turns away heterosexual announcements not because it disparages or disagrees with opposite unions, but because it's trying to promote something else, can it do that? That's a protected characteristic under the law.

Show Less Text
01:33:03

That's a hard hypothetical, because normally the marriage announcements are considered to be a public accommodation, but your hypothetical introduces a layer of editorial discretion. Well, you can't run

Show Less Text
01:33:16

every marriage announcement that comes, there would be too many. So you're necessarily going to pick and choose just like every business is gonna have to pick and choose based on resources

Show Less Text
01:33:24

well, and I think, but in that circumstances, if the sole basis for picking and choosing is a protected characteristic of the 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 the problem and what a lot of the hypotheticals are getting at is, however, we decide this case obviously applies to others, and what if we say it's not the new york Times, but what if we say that it's a gay rights group that wants to publish gay rights announcements online all year round, not just for gay pride month, because it wants to celebrate love in that community, and so it publishes only same marriage announcements and turns away opposite 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 paid, I mean, they craft these for and it's a business, it's a commercial enterprise, but they craft these announcements 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 rights enterprise, it's a it's a group run by, you know, people who are interested in promoting gay rights and it's a forum to celebrate gay marriage, they charge you make money and you run marriage announcements that have our story etcetera, but it's done specifically to celebrate love in that community. Can they turn away opposite marriage announcements in

Show Less Text
01:35:10

this unusual hypothetical, assuming the Republic accommodation, they cannot turn away announcements based on protected characteristics. So they couldn't turn around turn away off the announcements or interracial 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 not it's not that they have anything against opposite unions, but they can be compelled to give their, you know, web space to those, to those announcements, even though it's not consistent with the message of their organization.

Show Less Text
01:35:40

Again, assuming their republic accommodation and opening themselves, they can do that. But I think what makes the hypothetical difficult is that that assumption likely does does not apply to most organizations like that.

Show Less Text
01:35:53

It seems like you can't get out of everything by defining public accommodation narrowly or broadly depending on it. I mean, you agree that in Hurley, the parade was a public accommodation as we held because her lease your hardest case. Right?

Show Less Text
01:36:08

It's a difficult case, but but we are different than Hurley and I'm happy to talk about why. But the public accommodations law was applied to the parade in her early and the courts, that that was because of the peculiar circumstances there. It was inappropriate. But importantly, in Hurley, everyone could march in the parade. The only issue was who could carry the banner in the parade. And in this case, people can't march in the parade, that the company is turning away people for their products based solely on who they are. And that's a big difference from here. And Hurley. Thank you. Justice Jackson.

Show Less Text
01:36:42

Yes. Um, so I just wanted to say how perplexed, I was about the questions that seemed to distinguish, um, this kind of, um, sexual orientation refusal to provide services from the race discrimination. And there were some questions raised about, you know, religion being the basis, but I guess, and you might be able to help me with this and you might not. But I was fairly certain that historically opposition to interracial marriages and integration in many instances was on religious grounds. So I don't know that we can say that just because um, we have a religious objection to uh same marriage in this situation that wouldn't necessarily implicate religious 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 Barrett suggested, could have implications for other kinds of categorizations and First Amendment, um strongly religious held First Amendment, um, uh, invocations of rights.

Show Less Text
01:37:51

Absolutely. And I think the reason my friend was having such difficulty giving clear answers to some of these hard questions was because there is no way to cabin this to under the free speech clause exempt and they seek just to weddings or sexual orientation. All

Show Less Text
01:38:05

right, So, can I just direct your attention back to justice Kagan's question, because I think she made good points about, um, you know, the God bless this union hypothetical, and I guess I was thinking, um, isn't part of the problem trying to figure out whose statement of opinion it is when you have a public accommodation, when you have an artist for hire, right ordinarily would have an artist who even though they're making custom, you know, things they're making custom things based on their own views and opinions and this is my art. But when you have an artist for hire and people come to them and say, here's what I'd like you to make, there's a question about whether what they make is their statement or the customer statement. So if it was clear that it was not their statement, let's say the gay couple comes and they say we want God bless this union on our website. And the web designer says that's fine. But you understand under our name at the bottom, we say on every website, we believe that marriage is only between one man and one woman. And we're gonna put that on your website. Justice Alito says, maybe that person will walk away and maybe they will. But the point is, um if they do that in every situation and it's clear that 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 progress towards solving it. And I think back to the stipulations, I think it's notable that the stipulations here do not address that question that you raise. Justice Jackson, what the company says is, well, every website has designed by three or three creative at the bottom that's paragraph 83 of the stipulations. And then they say, and if a Viewer of a wedding website goes to 303 creative, then they will understand our philosophy, our own website, then they will understand our philosophy and understand that there's some implicit recognition endorsement whatever of the wedding. But on the stipulated facts here, the question you pose is totally wide open. There's no uh, evidence in the record whatsoever and no websites in the record, uh, to look at to see whether anyone would attribute the speech about the couple on the wedding website to the designer as opposed to

Show Less Text
01:40:30

that we have that as part of our standard in the holding. Like, let's say we we don't want to go as far as you're suggesting perhaps with the holding in this case, could it could it be that we would say, um, you know, the First Amendment protects the web designers abilities to um, you know, um not have this kind of uh, a same wedding website. Only if it would be clear from a, you know, a neutral observer from the audience that having that website is their own expression.

Show Less Text
01:41:09

two things to say on that your honor first is I think both Spence and Hurley itself talked about the importance of how an onlooker would look at the message and who onlooker would attribute the message to. So I think certainly could could build on that. And again here, there's no evidence whatsoever that that anyone would look at a wedding website of designed by three or three creative and say, oh that is uh you know the speech and beliefs of the designer as opposed to the couple getting married, thank you. Counsel, thank you. Mr fletcher,

Show Less Text
01:41:48

thank you. Mr Chief Justice and may it please the court. My friend Miss Wagner offered a two part test this morning for when a commercial business is entitled to an exemption from a generally applicable public accommodations law. She said number one is their product speech and number two does serving a particular customer change the message in the view of the business. As the questions today have already explored, that leads to extremely sweeping results. It means that any provider of expressive services is entitled to put up a sign saying we do not serve people with particular characteristics whenever they believe that serving those people would change their message. What I want to begin with today is to explain why that way of approaching the problem is also inconsistent with this court's cases, most notably Rumsfeld versus Fair, which you mention. MR Chief Justice that case was not just about access to the law schools rooms. The law schools had a separate claim that said, we provide other services to recruiters in the form of emails, newsletters, other things of that nature. And this court did not disagree and said those things are clearly speech and the law schools also said when we are required to provide those services to the military, it changes our message because it forces us to support a cause we deeply oppose. And this court did not disagree. Instead, it said that compulsion of speech is permissible because as incidental to a content neutral regulation 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

Um I do think uh the court in insfeld was dealing with the sort of compulsion uh that it's significantly different from the compulsion here. Um uh in what other case have we upheld uh compelling speech in other words, not simply just restricting speech, but actually compelling uh an individual to engage in speech contrary to her beliefs.

Show Less Text
01:43:44

So, I think MR Chief Justice Rumsfeld really is one of those cases, and I want to emphasize that the law schools there really did have a very credible claim. I think that they deeply opposed the 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 pages 60-62, the court acknowledges that there were things that the law schools were required to do, like sending emails, coordinating meetings, including announcements in their newsletters that were clearly speech. 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 announcements distributing the announcements on behalf of the military, including the military's announcements in the law school zone newsletter, the court below held and the

Show Less Text
01:44:28

the the fact that they would be recruiting on campus pursuant to the Solomon amendment. Do you think that's the same as the speech that's compelled here, which is directly opposite to the beliefs that the MS smith is seeking to convey?

Show Less Text
01:44:45

So I think it depends very much about what type of speech we're talking about here. I don't know that it is different in a constitutional sense from the sort of speech that was described in what justice cake and I think called the basic website where we're talking about a website that presents in an attractive way the details of the couple's wedding. I think it might be a very different case if she were compelled colorado ever applied its law to compel her to create messages or express religious views about marriage or to do some of the opinion based statements that Justice Kagan described. But I think that case might well come out differently.

Show Less Text
01:45:14

In other words, you would say that here's where the military recruiters are going to be with those recruiters of course using a discriminatory policy that the law schools deeply objected to. Here's where the military recruiters are going to be is very similar to here's where the wedding is going to take place, which is what standard websites do

Show Less Text
01:45:37

Exactly. And saying that I don't want to at all minimize miss miss sincere religious objection to saying that for a wedding that she opposes. I'm just making the point that the law schools also had sincere moral objections to making those statements to facilitate recruiting. That they found deeply object. What

Show Less Text
01:45:53

if the law schools also had to make available their Cdo to sit down 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 with the military. This is what it would be, this is why it's attractive and then posted that changed Rumsfeld.

Show Less Text
01:46:13

So there was actually evidence that those sorts of services were offered that the law schools were pressing that are referenced in the Third Circuit's opinion, but not specifically referenced in this court cases. I think what that starts to get into is how do you draw the line between are you providing, is it really the same speech that you would provide for someone else and are you being required to do something that goes beyond that to express the opinion related statements that justice Kagan, what

Show Less Text
01:46:37

if they do it for everyone? The career development office will do that for, you know, law firms. This is the job of an associate and here's why it would appealing, which you'd be getting out of it. If they do that, then they would have had to do that for the military or would that make that case more like Hurley?

Show Less Text
01:46:51

I guess here's the way I answer. The question is is the way that Hurley did we read Hurley to ask? Is the compulsion? Is the burden on speech? Is it truly incidental to the content neutral regulation of conduct? And what Hurley started with on pages 5 72 to 5 73 is being emphatic in saying this parade is not excluding people because they are gay and lesbian is excluding them solely because of the message that they want to send. And so the court said applying the public accommodations law to them is not incidental. It's not serving the content neutral regulation of conduct because they're not discriminating on the basis of status. Instead the law and Hurley the court said was equivalent to a law saying that the parade had to include any message that any protected group wanted to offer. That is not an incidental burden on speech. That is a direct burden on speech. And the reason why we view this case as being like fair and not like Hurley is because Colorado is not asking miss smith to say messages or to speak messages that you would not speak for anybody. The only thing that it is saying is you can't discriminate based on status and you can't define your services based on protected status so that 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 of my colleagues have looked at the actual website. I don't even see celebration of marriage in any of the examples uh exhibit a page 51 says save the date, Lillian luke november 20th you're invited and it says Lillian lucques and the date and place the town. The exhibit 52 is counting down the days. Doesn't even say what it's counting down for except the our special day which everybody has to assume is the couple's 53 is an R. S. V. P. With pictures. 54 is our blog. Bring your dancing shoes. 55 is their date. It all began seven years ago, Lily's version and Luke's version. It's clearly not 303s version. We love each other and coffee. I don't even know what C. O. Colorado, jesus, dogs and diving. We love each other is the couple who loves jesus. I assume your adversary won't say jesus doesn't love them back but it doesn't say that The 57 is the ceremony. 58 is the reception location, spirits dinner menu and dancing 59 is location. I don't see anywhere. 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 here today, I can't remember whether there is or not. I don't think it would make a difference if there were. And I think what the examples that you just read highlight is that there is a lot of websites or content on websites that is properly with in this case because it is consistent with the Justice Gorsuch and with the scope of relief that they're asking for and with the type of services that 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 thought pages 1 88 A and 1 89 A The stipulation below uh said that the additions to the web page stated and then it lists the firm belief in God that they Miss smith subscribed to. Is that do 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 website, not the websites 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 say, also on page 188. is the population uh that her religious beliefs will be unmistakable to the public after viewing the addition

Show Less Text
01:51:09

Once again, that's describing her website, not the websites that she would create for clients or the Colorado law might might require her to provide...

Show Full Text
01:51:18

and council, we also have stipulations from colorado that the plaintiff is willing to work with all people regardless of classification, 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 she wouldn't sell a website that celebrates a heterosexual union that she disagreed with to anyone, regardless of their sexual orientation.

Show Less Text
01:52:00

That may be right, Justice Gorsuch. But I think masterpiece couldn't have been clearer in saying that declining to sell goods or services, even expressive goods and services for a same wedding is a form of status based discrimination 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 your photograph hypothetical is exactly the sort of implication of the arguments that petitioners are advancing that are of concern to the United States? We really do think it's very difficult if you accept her principle. Is it speech and does the speaker believe the message has changed to say that someone who is doing the that would not be entitled under her theory to an exemption from the public accommodations laws. And we think that's a very sweeping accommodation that's inconsistent with the court's admonition and masterpiece cake shop that any sort of carve outs in these areas have to be carefully cabin to avoid undermining the government's compelling interest in ensuring that all americans have equal access to the public.

Show Less Text
01:53:04

And so just to be clear, right, It's the same Photograph for both customers. That this expression in my example is classic scenes with Santa. It's a wonderful life, 1940s and we want the artist, the photographer wants Santa with the kinds of depictions that are in that movie and he wants to sell that to everybody. But what that means is only some people can be depicted in that picture is that that's I'm just trying to make it because we've heard a lot of questions about, well, isn't she customizing it? I mean, he's customizing each photo, but what he's saying is I won't do the customization for these folks who want depictions with santa because that is inconsistent with my beliefs about how that scene should be depicted and I'm an artist and you'd be forcing me to put out into the world. Pictures 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 Jackson, we think if you accept petitioners theory the upshot is that that photographer or photographer who says I won't take corporate headshots for women because I don't want to send the message that women should be leaders in the workplace. Can deny service to a class of people.

Show Less Text
01:54:29

Mr fletcher. What if you have a gay couple who runs a web design business in a college town and you know, a big part of their business is developing websites for student organizations, the environmental organization, like different rec club leagues, whatever. And then you have a christian organization or catholic organization that um basically stands for and advocates traditional views of marriage. This is the reason metro for the club. They host debates, invite speakers, um and they want the standard website that this couple provides in their business, which is, you know, uh graphics that make it look appealing kind of an about us page that describes what they do and What their beliefs are. And let's say that this couple like 303 creative has on the bottom of every page, like, you know, designed designed by you know, Jack and Michael, everything this club wants to 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 asked it because I think here there's a difference of opinion about whether turning down the same couple simply for purposes of the marriage announcement is a turn down based on status or message. And it seems to me in my hypothetical that the status of the club is inextricably intertwined with the 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 start with the same marriage context, this court has recognized that that's a circumstance where status and conduct are inextricably intertwined in Lawrence masterpiece. The court has said, refusing to serve for same marriages is discrimination against same gays and lesbians because status and conduct is inextricably intertwined. The public accommodations laws and the anti discrimination laws generally don't work that way in general. We don't think that the expression of particular views is inextricably intertwined with having a particular religion or being a democrat or republican in general. In public accommodations laws, we say when you discriminate against someone because they want you to print a website or serve an event or cater an event for something that you disagree with. We wouldn'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 recognition in bray that attacks on Jamarcus is attacks on jews. There are certain rare context where status and conduct are inextricably intertwined. And I think the court is rightly recognized that same marriage is one of them

Show Less Text
01:57:02

justice thomas.

01:57:04

This is

01:57:04

a leader. I want to make sure I understand some of the contours of your arguments. So, my first question is whether you believe that speech can be compelled so long as the person who is compelled to speech to speak, um is uh is not associated with the compelled speech.

Show Less Text
01:57:28

That's not the line that we draw. Justice leader. I think we've focused on. Is it being compelled pursuant, incidental to a content neutral regulation of conduct as unfair, or is it not

Show Less Text
01:57:38

outside of that context in general? Uh does the prohibition or restriction of compelled speech 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 agree with Mr Olson that a website for marriages can tailor the website in a way that makes the website unacceptable 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 matter of colorado law and also we think that's consistent with the way the public accommodations laws usually,

Show Less Text
01:58:24

Olson's answer to that was if a website or part of the answer at least was that if a website included something like that, that would cause the website...

Show Full Text
01:58:59

don't think my answer changes Justice Alito, because I think that imposing a requirement or prohibiting that inclusion 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 think it's one that's familiar both to public accommodations laws and to the First Amendment. So, in the public accommodations context as Mr Olson said, you could have a store that can say we sell products that are solely for related to Judaism and it's not likely to be appealing to christians or Hindus, but no one thinks the store is violating the public accommodations laws unless it says no christians or Hindus may injure, and then it is violating the public,

Show Less Text
01:59:35

is there any limit to how broadly a state can define a public accommodation. So, uh suppose the state defines it as any business, and provide a business that provides services to a significant portion of the public. Would 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 about that line. Specifically, Justice Alito, I will accept 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 about what's a sufficiently substantial interest to justify or to pass scrutiny under the O'brien.

Show Less Text
02:00:13

I ask this, because a lot of the arguments on your side uh, seemed to view, uh, public accommodations, that if it's a public accommodations law, it's generally okay, uh, there's no problem with it, and that's why I want to know how far that can be expanded. So, uh, some selectivity would not necessarily take a business outside of the the definition of public accommodations. The same arguments would apply.

Show Less Text
02:00:42

Some selectivity wouldn't take them out, but I think the farther the State wanders from the sort of traditional core of commercial establishments 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 same answer. So, not in the sense that a state can define its public accommodations laws, however it wants. But, yes, when it starts to bump up against the First Amendment and you're applying the o'brien standard protection for some characteristics. Things that go beyond the traditional things like race,, sexual orientation, religion, those at issue here and get out into 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 just saying that the interest supported by such prohibition would be weaker than the really core ones like

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 matter or as a constitutional sort of backstop matter? I think it's hard to give a precise answer. I think the court's opinion in Fulton gives some guidance and says more selectivity. More individualized review is less likely to be a public accommodation. And in contrast and entity that generally holds itself as open to the public, can't escape the public accommodations laws. Just by imposing a discriminatory limitation or some pretense of selectivity and I know I can't give you a bright line, but I think this is a familiar problem in public accommodations, supposed.

Show Less Text
02:02:22

I think my last question, suppose three or three creative says that uh, there's so much demand for our services that we have to be selected and who 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 business that is open to the public and serves the public but has more business 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 read your brief, I had the sense that you and General Olson colorado parted ways on on some matters and I'll just on my hypothetical God blesses this union. I thought that you might find that more difficult than General Olson and I'm wondering if I'm right about that and 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 answer I give today. I'd start with just the same observation that General Olson gave you, which is that I think they're free exercise clause issues might come into play. I'll put those to the side because this is a speech case, right? And I think what that pushes on is can the person who's providing services credibly say I'm not denying service just because of status, I'm denying service because there's some message that's not just tied to status 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 obviously Miss smith can say I will not make any wedding website for anyone that says gay marriages are wonderful. She can refuse on that ground Colorado. We agree

Show Less Text
02:04:04

that God bless this union was supposed to be so that it would be, she would be like perfectly fine with saying it for some couples and not fine with

Show Less Text
02:04:14

correct? Yes. And I guess it's a harder case, you know, I think it's one of the reasons why this case is frustrating is because we don't have any concrete facts. I think my inclination on that case is that I think she has a strong argument to say really, that is making me send a different message because of the context. It's not a literal test, it's not just the words exactly the same, right? We acknowledge that context matters. And so in a case like that, I think she has a much stronger claim to say if Colorado applied its law to make me say that, and I think it's far from clear that colorado would then it wouldn't be imposing the sort of incidental burden the court saw in fair, then it's imposing this sort of direct burden you saw in Hurley and the analysis looks very different.

Show Less Text
02:04:51

Yeah, So what do you said is part of what frustrates me about this case because, you know, I guess my view when I'm trying to think of hypotheticals for myself is a little bit, it depends on the first set of hypotheticals I gave, I would come out one way and on the second set of hypotheticals, I gave, I hope I'm not giving too much away. I think it's much tougher and I might come out the other way and and it really depends on the facts and on what exactly Miss smith is being asked or compelled to do and that matters. And we have a case 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 it comes to you and as it comes to you, it's Miss smith saying I want to post a sign saying I will not provide any websites for any same marriages that sped up seven A

Show Less Text
02:05:38

Categorical rule.

02:05:39

Categorical rule based on status and pages 303 to 3 or four in the joint appendix, which General Olson referred 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 based on relief because courts are in control of relief. So take out that part of your I mean whether 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 Miss Wagner to say this morning when she was asked about what the client wants to do is that the services should provide are not limited to the ones that are described in the stipulations, she would provide something that wasn't so customized as long as it was to an opposite couple, but she wouldn't provide it to a same couple. That is what she is asking the courts to validate. And I think the court can take that claim as she presents it and say on that level of generality. She is not entitled to pre enforcement relief, but I think it can also do too because I recognize there are harder questions out there. It could and should do what it did and hold her versus humanitarian law project and dough versus read and say in rejecting this facial challenge in part or I'm sorry, pre enforcement challenge in part because we need more facts and we don't have them. 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 said to Justice Jackson that you didn't want to belabor the point, but her hypothetical is exactly the kind of hypothetical that you're concerned about. Uh you must have done many moods of this case and thought of many hypotheticals, what are your two ones that you're like

Show Less Text
02:07:13

That's a lot of pressure on my motors. My favorite one is this court's decision in Roe versus Macquarie, which was about a school that wanted to exclude Children in particular races. And it said the reason we want to do this is because segregation is important to our beliefs, and that's what we want to teach. And this court said you are free to teach segregation in your school, but you can't act on that belief by excluding Children of particular races. And I think there's a private school obviously, and I think if petitioners are right, that case comes out differently as long as the school can come in and say when we teach, we are expressing messages and those messages change when we express them to students of different races. I think that's very troubling. And I guess I take Justice Alito's point that I do not mean to equate those who have different views about marriage to Racists. But the reason why I rely on those hypotheticals is because this court's First Amendment jurisprudence does not distinguish between views we find odious and those we respect to the same principles apply in both cases. And if the principles lead to unacceptable places when we consider them in light 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 your view. I'm sorry. Whereas they would say it's a message case. But to think about it, the status versus 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 explain why we think that's the right way to think about the case? Because we think the first question is, is the burden that's being imposed on Miss smith incidental to a content neutral regulation of conduct that says you can't turn people away because of status. So us. The first question is is what she's doing status based discrimination. And if the answer is yes, then the burden is 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 question I had is in your view this is status based. But Justice Barrett's hypothetical of the inverse situation is message based. I wouldn't

02:10:04

describe it as the inverse situation because I didn't understand the hypothetical to say that the campus website design company was turning people away because of their status. I understood it to be turning them away because they wanted to say things that the company would not say. That's

Show Less Text
02:10:19

one way of describing it. Or one might describe it as two turning away those with traditionalist views of marriage based on their religious beliefs. Conservative christians for example.

Show Less Text
02:10:29

So I guess I just disagree with that. Justice Gorsuch. I think the way we answer any status based discrimination question is we change the protected status. We hold everything else constant. And we ask, does the outcome change? And in MS smith's case, you change the protected status. It's you know, Jack and taylor and you ask, will she make the website

Show Less Text
02:10:45

except for. That runs into all those stipulated facts in which the plaintiff has said repeatedly that she will serve everyone. And she would deny everyone 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? But it's race discrimination to say I won't serve interracial, I won't create websites for interracial marriage and I won't sell them even to a white wedding planner, 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 is does has colorado validly defined it as status based discrimination. And I think the answer that the court gave it pages 17 27 to 17 29 of masterpiece is yes, okay,

Show Less Text
02:11:32

got it, thank you. Justice Kavanaugh, just wanna follow up there and ask about one thing in your brief, on page 32 of your brief, you deal with a few hypotheticals. Hypotheticals you dealt with were uh requiring muslim filmmakers to promote scientology, compelling lesbian artists to design church websites criticizing same marriage, or in the third one I really want to focus on or forcing writers to write speeches that violate their most deeply held convictions. So, those are three hypotheticals, you posit responded to the other side, and then you say those hypotheticals, unlike this case, involve direct burdens on speech because they contemplate speakers being forced to create and convey ideological messages, they would not create for anyone. And I think the other side would say that's exactly this case to to take that third category. These are writers in essence being asked to write speeches that violate their most deeply held convictions. So, I'm trying to figure out, given what you say there, 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 posit a content neutral law, like a public accommodations law that would validly require the writer or the speaker, the filmmaker to do what the hypotheticals posited. It's because in those cases, as we say, it's a direct burden on speech. The regulation is compelling you to write something you deeply disagree with because of the message. It's not incidental to a content neutral regulation of conduct, like the court confronted and fair, and we believe it's confronted with here.

Show Less Text
02:13:13

You don't think applying a um public accommodation, slaughter a speechwriting business that offers to do speeches or pr releases for anyone, but they say we're not gonna 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 all, a couple of levels, speechwriters aren't likely to be public accommodations. Set that aside, suppose you 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 to give you in response to justice alito there is, I think a constitutional backstop about core public accommodations laws, we think satisfy o'brien scrutiny if a state wanders from that. Not so, not so much, but again, just to get to the nub of your hypothetical, we think if the speech writer says, here's a speech that expresses views that I abhor and I won't write the speech, they wouldn't do that for anybody, regardless of status. Now, it may be that the status of the person who's asking them to write the speech is somehow correlated with the message in some way, but that's still not status based discrimination in the way that the law regards discrimination against people 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

cavanaugh slate, um, by wondering whether or not it has something to do with the message being implicitly uh, provided in a situation in which what's actually being stated is the same. So, you know, what would you think of a holding that says that the First Amendment protects this designer's right to provide products that explicitly express her beliefs about marriage. So she absolutely has the right to say one man, one woman in every website, and she has the right to refuse to say gay marriage is 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 to say the same thing. Here's the wedding, it's at this place, etcetera, etcetera, but she's afraid that if she says it forgave people that that will be sort of like an implicit endorsement of their wedding. And so she wants to be able to protect against implicitly endorsing right, in a way that we've never really recognized before, in the same way when it isn't really clear that that's her message, when we don't when an objective observer would know that she was really trying to do that. Am I right in trying to think about explicit versus implicit in this way? I think

Show Less Text
02:16:07

that basically maps onto the test that we're trying to give you, which is to say if she's discriminating based on status and that includes if she's defining the message or the product based on the status defining the but by the who that's not okay. But other than that she has the freedom to define her own product. And I think I agree with you entirely that the court has never recognized that sort of implicit uh problem as being sufficient. And in fact, I would say in fair, the court squarely rejected it with the law schools had a claim that was very, very similar in structure to say, we don't want to implicitly support these policies. We deeply deeply opposed. No one doubted there was implicit support. 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 speech is also foundational to our self government and to the 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.

No comments:

Post a Comment