303 Creative LLC v. Elenis
Oral argument transcript · No. 21-476 · October Term 2022 · argued December 5, 2022 · the petitioner won
Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court
Advocates
- Kristen K. Waggoner, Washington, D.C., for the petitioner
- Eric R. Olson, State Solicitor General, for the respondent
- Brian H. Fletcher, Deputy Solicitor General, amicus curiae supporting the respondent
Transcript
From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.
Chief Justice Roberts: We'll hear argument first this morning in Case 21-476, 303 Creative LLC versus Elenis. Ms. Waggoner. ORAL ARGUMENT OF KRISTEN K. WAGGONER ON BEHALF OF THE PETITIONERS
Kristen K. Waggoner: Mr. Chief Justice, and may it please the Court: Lorie 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 there speech, and is the message affected? That test is easily met here. Colorado agrees Ms. Smith creates speech, and the law undeniably affects her message. She's not asking this Court to create new law but to Official 1 apply its precedent. Colorado first says this case is about a sale. It's not just about a sale. The state forces Ms. Smith to create speech, not simply sell it. Next, Colorado says it can compel speech on the same topic. But Ms. Smith believes opposite-sex marriage honors scripture and same-sex 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 Republican's 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 who carves a custom cross to celebrate a Catholic baptism but not an Aryan church rally. If the government may not force motorists to display a motto, school children 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, Official 1 and re-education. I welcome this Court's questions.
Justice Thomas: Counsel, would you spend just a few minutes on whether or not this -- your case is ripe?
Kristen K. Waggoner: Sure. This Court has considered pre-enforcement challenges before, and, in those contexts, it has looked at the facts. This is one of the strongest pre-enforcement cases, I think, that this Court has considered in that the parties have stipulated every message that Ms. Smith would create has a unique, customized message and that it celebrates a wedding and celebrates a marriage. It's also difficult to imagine a scenario where there is an -- a more aggressive enforcement history by Colorado. Ms. Smith's 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.
Justice Kagan: Ms. Waggoner, unless you're not through with that -- sorry. Your -- Official
Kristen K. Waggoner: I'm through.
Justice Kagan: Okay.
Kristen K. Waggoner: Thank you.
Justice Kagan: 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, in 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 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, all right? And -- and then there's a -- a tag line just like the tag line in this case about Official 1 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 tag line. So I guess what I want to know is suppose Amber wakes up tomorrow morning and says, you know what, I don't want to do those websites anymore for same-sex couples. Could she do that?
Kristen K. Waggoner: In terms of creating new websites?
Justice Kagan: No, you know, like she's providing these templates and she has all these designs and -- and -- and 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 -- the -- you know, the -- the -- the list of hotels and so forth. So can Amber wake up and just say no more gay couples?
Kristen K. Waggoner: She can't say no more Official 1 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.
Justice Kagan: No, no, no.
Kristen K. Waggoner: But compelled --
Justice Kagan: I mean, you know, just like -- I -- I mean, I -- I have to think 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 bit more 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, we just want a standard website, you know, that tells people where to stay and what -- how to travel there and -- 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? Official
Kristen K. Waggoner: The website designer --
Justice Kagan: There's no scripture, there's no ideology, there's no nothing.
Kristen K. Waggoner: There is ideology. And this Court has already recognized that there is ideology and different views on marriage. And the Court's promise in Obergefell is to protect those who would believe marriage is between a man and a woman from having to express a view that violates their conscience. But I think --
Justice Kagan: 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.
Kristen K. Waggoner: That is speech. You are announcing a wedding. And if you believe the wedding to be false, then the -- the government would be compelling you to say something that you otherwise wouldn't say, which makes it --
Justice Kagan: So --
Kristen K. Waggoner: -- content-based.
Justice Kagan: -- so it's really nothing about the content of this speech. I Official 1 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 -- am I right? In your case, you have, like, scripture examples, and so that might, you know, be different maybe, but you're 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 -- what -- what -- whatever the graphics and typefaces and, you know -- you know, which hotels are -- you know, have been reserved for the wedding, it's being used in a same-sex marriage.
Kristen K. Waggoner: 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 asked this Court to first look at is there speech, and there clearly is words, graphics, text, videos, pictures. That's speech, and it's generally protected. The second is to ask is the speaker's message affected. And when you're requiring a speaker to create a message to celebrate Official 1 something that they believe to be false, you're compelling their speech and it's affecting their message.
Justice Jackson: 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 Ann and one to Harry and Steve, but everything on the website is exactly the same. I think I hear you saying that the message 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 --
Kristen K. Waggoner: No.
Justice Jackson: -- that's the problem.
Kristen K. Waggoner: No, she's not -- it's not about whether she's endorsing it. She's not speaking through anything but creating a 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 Official 1 --
Justice Sotomayor: Where?
Kristen K. Waggoner: -- of "God bless this marriage."
Justice Alito: Suppose that we --
Justice Sotomayor: Well, that's -- that's a particular message. But I looked and -- and to your proposed website, and turn to page 51. It says Save The Date, Lilly and Luke, November 17, 2017. So what's the message if it says, Save The Date, Lilly and -- Lilly and Lillian or Lilly and Mary? What's the message there?
Kristen K. Waggoner: That's an invitation to celebrate a marriage, and --
Justice Sotomayor: But why is it your invitation? I go to a wedding website. It's something that I send, meaning you, your client, I send it to my family and friends or Lilly and Luke send it to their family and friends. You don't send it. They go to this website. You're not inviting them to the wedding. Lilly and Mary are. So how is it become your message?
Kristen K. Waggoner: In the same way that it is the message of a ghostwriter who writes an Official 1 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 in --
Justice Sotomayor: So what's the limiting line of yours -- of yours? 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 --
Kristen K. Waggoner: Not at --
Justice Sotomayor: -- this website --
Kristen K. Waggoner: -- not --
Justice Sotomayor: -- because it's my speech?
Kristen K. Waggoner: -- 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 Official 1 and expressing other messages. In the context of race, it's highly unlikely that anyone would be serving black Americans in other capacities but only refusing to do so in an interracial marriage context --
Justice Kagan: Well, it's not impossible.
Kristen K. Waggoner: -- but --
Justice Alito: Suppose -- suppose we agreed that the website designer could not refuse to provide that service to a same-sex 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?
Kristen K. Waggoner: Well, 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 --
Justice Alito: Well, so what are the differences between -- what differences do you see between her hypothetical and the actual case that is before us?
Kristen K. Waggoner: She provided a number Official 1 of hypotheticals, so in terms of assuming it's a --
Justice Kagan: Just one, Ms. Waggoner.
Justice Alito: The hypothetical --
Kristen K. Waggoner: -- website --
Justice Alito: -- where there is a website and, basically, all the -- the website operator does is to put in the names of the two people who are getting married.
Kristen K. Waggoner: That's not a service that -- or a 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 names --
Justice Sotomayor: I'm sorry. Show me on your website -- show me in -- on the pages of your petition for a writ of certiorari, show me a page on that website that is an endorsement of a marriage as opposed to the story of a Official 1 couple.
Kristen K. Waggoner: Well, either one violates the Compelled Speech Doctrine.
Justice Sotomayor: No, no, no.
Kristen K. Waggoner: You can't --
Justice Sotomayor: Please show me a page on your website that's attached to your petition. I'll start you on page 51.
Kristen K. Waggoner: Pages 53, 52, 54 --
Justice Sotomayor: Okay. But leave this --
Kristen K. Waggoner: -- 55, and 56 all represent an invitation and a celebration --
Justice Sotomayor: Fifty-three says "Our Photo Gallery." Fifty-four says "Funny Dating Story." How is that your story, your photo gallery?
Kristen K. Waggoner: Fifty --
Justice Sotomayor: 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. Fifty-two is "Our Special Day." Fifty-three is RSVP. "Our Photo Official 1 Gallery." Fifty-four is a funny dating story. I keep looking at all of the mockups, and all of them relate to what Lilly and Luke are saying or doing, who they are, who are their grooms, who aren't their -- who's their bridesmaids. I don't understand. How is this your story? It's their story.
Kristen K. Waggoner: If you're asking whether -- first of all, book authors, newspaper editors, those who write all kinds of publications may be writing about someone else's story, but it's still their speech, and it's still protected --
Justice Jackson: But they're not public accommodations in the same way.
Justice Barrett: Ms. Waggoner, can I ask you --
Kristen K. Waggoner: They --
Justice Barrett: -- 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, you go through and it seems like careful, Ms. Smith was careful to say things like I fully customize the look, feel, theme, Official 1 message, color palettes, et cetera. And then there's the engagement story page and inspired by -- "a page inspired by you and written by Lorie 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 cisgender and heterosexual, but that is irrelevant to our relationship which transcends such categories. We knew we were soulmates from the moment that we met and on and on. Would your client publish that site?
Kristen K. Waggoner: Yes, she would publish the site because her objection -- assuming that the marriage is between a -- a man and a woman, she would publish it and that there's no message that she objected --
Justice Barrett: Even though that narrative, I assume, is inconsistent with her biblical views about marriage? Or I'll give you another related one. A heterosexual couple comes to her and in the engagement story part Official 1 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 decided to begin our story today, got divorced, and are marrying each other. Does she publish it?
Kristen K. Waggoner: I don't 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 either.
Justice Barrett: So it's about the message and not about the sexuality of the couple that asked her to express it that matters?
Kristen K. Waggoner: Yes, which is exactly how the Court decided the case in Hurley, but it's also in other cases as well, the Pacific Gas and Miami Herald cases. This Court has routinely looked at compelled speech cases to determine if the message --
Justice Barrett: And, Ms. Waggoner, Official 1 can I just ask you to clarify before we move on? When I first asked you the question about the cisgender heterosexual couple, you said you thought she would publish it, but then it seemed like you wavered and said something different a minute ago.
Kristen K. Waggoner: If I could just clarify the hypothetical. The second part of the statement was that it didn't matter? Is -- is that --
Justice Barrett: That concepts of gender or, you know, sexual orientation were irrelevant to their relationship because they believe that those categories don't matter. What matters is their union of souls.
Kristen K. Waggoner: No, she would not create a -- 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.
Justice Jackson: Can I ask -- Official
Justice Gorsuch: Well, what do we -- what do we do --
Justice Kagan: But then -- just -- just -- a -- and this is --
Justice Gorsuch: -- what do we -- I'm sorry. No.
Justice Kagan: No, go ahead.
Justice Gorsuch: No, no, please.
Justice Kagan: No, no, no.
Chief Justice Roberts: Justice -- Justice Gorsuch? (Laughter.)
Justice Gorsuch: I -- I -- I -- I'm sorry.
Justice Kagan: No, no, no.
Justice Gorsuch: One can view these websites, or last time around we had cakes, as either expressing the maker's point of view or the couple's point of view, and -- and that's really at -- at the heart of a lot of this. And I guess I'm -- I'm a little confused because sometimes, as I -- as I understand it, you're saying inherently here 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. Official 1 And sometimes Colorado agrees with you, for example, when it comes to the example you just gave, which is why it popped up. I believe it was William Jack in -- in the Masterpiece Cake example where Colorado said he didn't have to create cakes that -- that spoke against same-sex 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 their priors? How do we avoid that as a Court? What rule would you have us draw?
Kristen K. Waggoner: The Court 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 --
Justice Sotomayor: So please --
Kristen K. Waggoner: -- slide up and down --
Justice Sotomayor: -- tell me why it's not protected speech, the identical message that -- that Justice Barrett put forth but by a disabled couple. And you say, I don't want Official 1 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 two 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 --
Kristen K. Waggoner: It's not --
Justice Sotomayor: -- that they should be married. What's the difference between that and I don't believe black people and white people should get married?
Kristen K. Waggoner: What matters is what the objection is that the speaker is being asked to create and whether the objection --
Justice Sotomayor: But -- but, if I just -- that's my objection. I don't believe they should be telling their story.
Kristen K. Waggoner: If you 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, in the same way -- Official
Justice Sotomayor: So it doesn't really -- there is no line on race, there is no line on disability, ethnicity, none of the protected categories --
Kristen K. Waggoner: That's --
Justice Sotomayor: -- in a public accommodation law?
Kristen K. Waggoner: There is a line. There's a very clear line, and it's worked --
Justice Sotomayor: Well, but tell me --
Kristen K. Waggoner: -- very well.
Justice Sotomayor: -- what the clear line is. It's compelled --
Kristen K. Waggoner: The clear --
Justice Sotomayor: You're saying it's compelled speech, correct, not compelled service?
Kristen K. Waggoner: I'm saying that in the public accommodation cases, this Court has routinely looked at whether there's speech and whether the message is affected and whether the objection lines up with the final speech.
Justice Sotomayor: But the one -- one line -- Official
Kristen K. Waggoner: That --
Justice Sotomayor: -- that you're missing is Justice Gorsuch's line. Whose speech --
Kristen K. Waggoner: The --
Justice Sotomayor: -- is the person viewing it going to think is talking? You --
Kristen K. Waggoner: The Pulitzer 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 are requiring that artist to speak a message. It is their work. It might also be the customer's 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 them.
Justice Sotomayor: But the line you want us --
Justice Jackson: So can I --
Justice Sotomayor: I'm sorry. Official
Justice Jackson: -- can I ask you a hypothetical that just sort of helps me to flesh that out? Because I also heard you suggest earlier that there's something different about race, maybe the person wouldn't sell to someone of a different race. So -- so suppose -- you -- 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 1940s and 1950s Santa scenes. They do it in sepia tone and they are customizing each one. This is not off a rack. 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. 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. Official 1 Now the business will gladly refer families of color to the Santa at the other end of the mall who will take anybody, but -- and -- 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 may -- maybe it is.
Kristen K. Waggoner: 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 that --
Justice Jackson: No, no, no, don't leave. Sorry. What do you mean? I mean, the objection, just like your client's 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 Official 1 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?
Kristen K. Waggoner: 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 has never compelled speech.
Justice Jackson: No, I'm just asking you why is the objection of the web designer, as Justice both Kagan and Sotomayor has pointed out, when we look at your examples, they just say things like "Please come to the wedding on this day."
Kristen K. Waggoner: Precisely. It's an invitation to a wedding --
Justice Jackson: Okay. So I --
Kristen K. Waggoner: -- which --
Justice Jackson: -- so -- so, if -- if my hypothetical is an invitation to join me Official 1 in the 1950s through looking at this photo, you say one is different?
Kristen K. Waggoner: I say that that same clarity of the message isn't 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 message --
Justice Kagan: It may be an edge case meaning it could fall on either side, you're not sure?
Kristen K. Waggoner: I am -- I am sure in 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-sex marriage. But it --
Justice Kagan: So just --
Justice Alito: In --
Justice Kagan: Sorry.
Justice Alito: -- in Obergefell, did the Court say that religious objections to same-sex marriage are the same thing as Official 1 religious or other objections to people of color?
Kristen K. Waggoner: No. In fact, it 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 --
Justice Sotomayor: But tell me how to 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.
Kristen K. Waggoner: 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. And this Court has never found a compelling interest that was narrowly tailored -- Official
Justice Sotomayor: So you -- you're -- you're saying a print shop, a web designer, a -- a cake maker, a --
Justice Jackson: A photographer.
Justice Sotomayor: -- a jewelry -- a 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 going to believe that they're speaking that message?
Kristen K. Waggoner: I'm not saying that at all. What I'm saying is that in every free speech case the Court looks first is there speech. In many of the situations you've raised, there would not be speech.
Justice Sotomayor: 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 message.
Kristen K. Waggoner: Every page is my Official 1 client's message --
Justice Sotomayor: But that --
Kristen K. Waggoner: -- just as in a newspaper that hosts an op-ed written by someone else --
Justice Sotomayor: So why doesn't the --
Kristen K. Waggoner: -- or Hurley, the parade.
Justice Sotomayor: 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.
Kristen K. Waggoner: 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 are right now using their public accommodation laws to allow message-based protections, as Hurley would require, and they're not experiencing these issues. And in -- Official
Justice Sotomayor: But you're not asking for that. You're saying, I don't want to serve a particular person, a disabled person, a black and white couple, a disabled couple, a -- a -- a gay couple. You're basing it not on the nature of the message, you're basing it on who you're serving.
Kristen K. Waggoner: That's -- I don't think that's a fair characterization. The stipulated facts in this case are that Ms. Smith has LGBT clients. She serves them regularly. She has all kinds of clients.
Justice Sotomayor: Tell me how that's different, by the way. What you're basically saying is, in our Ollie's Barbecue case, the company there said, I'll serve blacks but only on a takeout window, not inside my restaurant because that sends a message that I endorse integration.
Kristen K. Waggoner: Ms. Smith isn't looking to send a message through her conduct. She's look --
Justice Sotomayor: No, she -- what you're saying is, I want to give gay couples a limited menu, not a full menu, just the way that Official 1 luncheonette said.
Kristen K. Waggoner: No. Just as this Court found in Hurley, she's being asked to shape her speech by a third party, and it's -- again, it's about what messages she is creating. In Ollie's Barbecue, they weren't engaging --
Justice Sotomayor: Well, 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 won't serve a disabled person because they can't appreciate fully what I'm creating. That's basically what you're saying.
Kristen K. Waggoner: No, I don't think it is what I'm saying. We're conflating service and speech in that instance. A chef isn't --
Justice Sotomayor: But why is yours not a service?
Kristen K. Waggoner: May I answer the question?
Chief Justice Roberts: Yes.
Kristen K. Waggoner: Because it is creating speech. And the public accommodation law is broad enough to ensure that we're not crushing Official 1 consciences not just of Ms. Smith but of her LGBT friends.
Chief Justice Roberts: Thank you, counsel. If -- if your client's website --
Kristen K. Waggoner: Sorry.
Chief Justice Roberts: Yeah, you don't go. Not so fast. (Laughter.)
Kristen K. Waggoner: New way of doing it.
Chief Justice Roberts: If your -- if your client's website was the same as it is, but the only indication of any limitation was a tag line at the end saying these services are for heterosexual couples only, could that constitutionally be applied under the Colorado statute?
Kristen K. Waggoner: The speech could be compelled if you're suggesting that she essentially has a "no customers only" sign. And that's exactly --
Chief Justice Roberts: No, no. Well, no -- as in your case, no websites. No websites are available for -- except for heterosexual couples.
Kristen K. Waggoner: For marriage? Official
Chief Justice Roberts: Yeah, same thing.
Kristen K. Waggoner: Generally speaking, no. In Ms. Smith's particular case, all of her websites are created, they're original, customized to the story, and so, in that instance, she believes same-sex marriage to be false and couldn't create the speech.
Chief Justice Roberts: Okay. What if it said, I -- 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?
Kristen K. Waggoner: The religious basis is not determinative here. This Court has provided broad protection for religious speech, but it -- it wouldn't matter. This -- this Compelled Speech Doctrine applies in a host of situations and cases that are not religious.
Chief Justice Roberts: I -- I guess I don't understand that answer. In other words, is it simply adding for religious reasons to the label that would change whether it's -- could be Official 1 regulated or not?
Kristen K. Waggoner: 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 a religious reason, it would be protected.
Chief Justice Roberts: Okay. Thank you. Justice Thomas? Justice Alito? Justice Sotomayor? Justice Kagan?
Justice Kagan: Yeah. I -- 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. Here's what we want. We want a standard site, our names, our Official 1 -- the picture, the hotels, the registry, you know, just -- just that. And you say okay, don't you?
Kristen K. Waggoner: Yes, assuming all the details line up with the message that she's willing to create.
Justice Kagan: Yeah. I mean, and they say we don't want your scripture. That's all right with you? They don't have to have scripture?
Kristen K. Waggoner: No, they do not have to.
Justice Kagan: Yeah. They can 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 is the date maybe or, you know, their names, whatever. We loved it. And -- and they don't get it. And the -- and -- and you say no, right? You -- you -- you wouldn't be up there if you weren't going to say no, right? They can't get that site? Official
Kristen K. Waggoner: Yes, because the same words can even convey different meanings.
Justice Kagan: Yeah. So then -- I mean, the difference is one couple is opposite sex, one couple is same sex. How is this -- you know, what -- what are the different meanings? What is the speech that your client is expected -- is -- is required to provide in the way I expressed it to you?
Kristen K. Waggoner: The purpose of the websites is to celebrate an upcoming wedding. It's to announce a wedding. And --
Justice Kagan: It is to announce a wedding. I mean, let's -- 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 stationer up there saying, you know, we print the station -- the stationery, right? I mean, it would be the Official 1 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?
Kristen K. Waggoner: She believes that same-sex weddings contradict scripture and she's announcing a concept of marriage that she believes to be false. And, in addition to that, even --
Justice Kagan: I mean, but that just sounds to me like I would be participating in 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. So why are they any different?
Kristen K. Waggoner: The person 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 Official 1 speech. I can't --
Justice Kagan: Even though 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.
Kristen K. Waggoner: Again, the announcement of the wedding itself is 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.
Justice Kagan: Thank you.
Chief Justice Roberts: Justice Gorsuch?
Justice Gorsuch: So, counsel, we've -- we've spoken a little bit about how Colorado has handled this compelled speech question differently with respect to different messages, some that it prefers, others that it dislikes. I'm curious how other states have Official 1 dealt with this conundrum besides Colorado and how you -- which ones of those you think we should take account of.
Kristen K. Waggoner: Twenty states filed an amicus brief in support of Ms. Smith and expressed to this Court that they're applying their public accommodation law to provide message-based object -- protections, just like the Court did in Hurley, 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 arm band. 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.
Justice Gorsuch: And just so I make sure I understood your colloquy with Justice Barrett, the objections to compelled speech on religious grounds could include, in fact, do Official 1 include, some objections with respect to certain heterosexual marriages, that there are certain heterosexual unions that your client would not speak in -- toward either, is that correct?
Kristen K. Waggoner: 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-sex marriage.
Justice Gorsuch: So the question isn't who, it's what?
Kristen K. Waggoner: Always.
Justice Gorsuch: Thank you.
Chief Justice Roberts: Justice Kavanaugh?
Justice Kavanaugh: From the briefs, I saw a lot of agreement actually between the parties in this case on basic legal principles. In your reply brief at page 15, you say that hairstylists, landscapers, plumbers, caterers, tailors, jewelers, and restaurants ordinarily wouldn't have First Amendment free speech right to decline to serve a same-sex wedding. At least that's how I read that reference in your brief. But you say artists are different, like Official 1 publishing houses. And I think the other side -- I'll hear from them -- but agree that artists are different because of the First Amendment rights that artists possess. But then, as least as I read the briefs, the case comes down to a fairly narrower -- 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, you know, the publishing houses and the other free speech analogues 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 some disagreement about how to characterize the website designers. So why are you right about how you characterize website designers or, put another way, why are they different -- and you've gotten this question -- but why are they different from, say, restaurants or caterers, for example?
Kristen K. Waggoner: Because they're creating speech. In those other examples, speech is not at issue, that is creating speech, announcing a wedding, or announcing anything. Official 1 And art is different. And so, while there may be agreement on that, well 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-sex 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, again, symbolic speech.
Justice Kavanaugh: So, for you, as -- as there's a effort to protect both the equal rights of gay and lesbian people and same-sex couples at the same time protect free speech rights, your line is look at whether the action of the business involves speech?
Kristen K. Waggoner: 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 pretextual objections. Official 1 So, if a -- if a -- a speech creator articulates an objection and it's not in that final photograph, the objection or the -- 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. But I do --
Justice Kavanaugh: So, if you win this case, if you prevail here, you know, and the next case involves a caterer, at least your position here is that's different.
Kristen K. Waggoner: I won't be coming back with the caterer, but I will be coming back with perhaps a custom wedding cake or a cake --
Justice Kavanaugh: I understand that, but the --
Kristen K. Waggoner: -- that has a symbolic meaning to it.
Justice Kavanaugh: Okay. But the -- the caterer, the -- the list of things that you had on page 15 of the reply brief, at least ordinarily -- you had a caveat in there -- but ordinarily wouldn't -- wouldn't have the same right that your client here does, who's a Official 1 website designer?
Kristen K. Waggoner: They wouldn't 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, they're even conceding that it's a burden on a speaker to have to express a message that violates their convictions. They're just simply relabeling this or repackaging speech as a sale or conduct.
Justice Kavanaugh: Thank you.
Chief Justice Roberts: Justice Barrett?
Justice Barrett: So I 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? I don't know that much about website design, so I don't know how it could be plug-and-play. I'm -- I'm Official 1 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, Lilly and Luke, fill it in themselves. Is that protected?
Kristen K. Waggoner: 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, it's been put in the stream of commerce at that point.
Justice Barrett: Okay. So why is it different? Justice Kagan said, so maybe you do create customized websites and you've created one for, you know, Lilly and 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?
Kristen K. Waggoner: It is different. I mean, first of all, if I take your hypothetical Official 1 on its face, we would be selling essentially a -- she would be creating a website that's exactly the same with the same pictures and text and graphics and videos of an opposite-sex couple and selling it to a same-sex 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 -- or proponent. So, in -- 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-sex wedding to a same-sex couple.
Justice Barrett: Okay. So context Official 1 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 it could be played at a gay wedding. Once the artist has created that song, can the artist say, but I'm not licensing it to be played at certain kinds of weddings?
Kristen K. Waggoner: 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 a 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 artist were being asked to perform that song in a live way, for example, sang 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. Nineteen Official 1 jurisdictions have political ideology. And when we think about that, there's no limit to what the government could compel.
Justice Barrett: Thank you.
Chief Justice Roberts: Justice Jackson?
Justice Jackson: But isn't an artist typically sort of a -- a freelancer and they are selling their own messages? They're not purporting to be a business for hire in -- in -- in any meaningful sense. And so I -- I want to kind of go back to Justice Kavanaugh's thought of, like, where do we place your client as between, you know, restaurants and artists. I thought 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 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 Official 1 that you're talking about, because sort of what Justice Gorsuch was saying, it's -- it's relying on the implicit 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. So let me just ask you another quick hypo. So I -- I'm trying to understand the extent to which this matters that she's a speaker 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 Official 1 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 get to partake in this product. Can I do that consistent with the First Amendment or not?
Kristen K. Waggoner: No, and in -- and in a situation as you said, in terms of a caterer, the caterer is not engaging in speech. In terms of your initial statements or questions, speech is speech whether it's paid or pro bono.
Justice Jackson: But -- but aren't -- don't we have cases 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.
Kristen K. Waggoner: You're speaking through conduct at that point, and that is a different Official 1 analysis. In terms of the expressive conduct test, 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 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've started with a statement about freelance writers. At oral argument at the Tenth Circuit, my friend in Colorado admitted that freelance writers are considered to be public accommodations under this law as --
Justice Jackson: All right. Well, I'll ask them about that. But what about my photographer? My photographer is speaking through photography, yes?
Kristen K. Waggoner: In -- in your photography, yes, photography is speech --
Justice Jackson: Is speech.
Kristen K. Waggoner: -- just as websites are Official 1 under the Court's decision in Reno.
Justice Jackson: All right. So my photographer could -- is speaking by -- by being forced to create a Santa photo with minority children in it that they don't want to, they don't think that should be there?
Kristen K. Waggoner: 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 in -- otherwise --
Justice Jackson: But Hurley was a private association. It wasn't a public business. What I'm asking you is I have a public business. I'm a photographer. My belief is that -- you know, 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 I -- knowing that movie very well, I want to be authentic, and so only white Official 1 children and families can be customers for that particular product. Everybody else can -- I'll -- I'll give to everybody else, I'll sell them anything they want, just not the "It's a Wonderful Life" depictions. I'm expressing something, right? For your purposes, that's 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 nonwhite individuals.
Kristen K. Waggoner: In the same way -- I -- I would say, first of all, in the same way that this Court, when there is a message and a status and it's overlapping, the Court would say that message wins in that instance.
Justice Jackson: So -- so -- so --
Kristen K. Waggoner: I don't think that the message --
Justice Jackson: -- I don't have to sell it to --
Kristen K. Waggoner: -- I don't think that that message is in that hypothetical. But take the example of the musical of "Hamilton." There's a direct overlap in the musical of Official 1 "Hamilton." And, in that case, we know that they're expressing a preference for who they're hiring in terms of race. Yet we would say that --
Justice Jackson: No, I'm not talking about -- you're -- you're sort of slipping into, like, a thousand 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 business and I hang out my shingle. Everybody can come. But I have certain products that I'll only sell to non -- to -- 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.
Kristen K. Waggoner: 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's an overlap between message and status, message does win. Official 1 And "Hamilton" provides an example of that.
Justice Jackson: All right. Thank you.
Kristen K. Waggoner: But I -- I would --
Chief Justice Roberts: Thank you, counsel. Mr. Olson. ORAL ARGUMENT OF ERIC R. OLSON ON BEHALF OF THE RESPONDENTS
Eric R. Olson: Mr. Chief Justice, and may it please the Court: The central dispute here is what public accommodations law target when they require a business to provide equal access to its services. The company claims that because it wants to sell websites, the law somehow targets expression and therefore violates the First Amendment. But, because Colorado law targets the commercial conduct of discriminatory sales and its effect on expression is at most incidental, it easily satisfies the framework set out in O'Brien. The company can choose to sell websites that only feature biblical quotes Official 1 describing a marriage as between a man and a woman, just like a Christmas store can choose to sell only Christmas-related items. The company just cannot refuse to serve gay couples, as it seeks to do here, just as a Christmas store cannot announce no Jews allowed. Here, the company seeks a pre-enforcement order allowing it to turn away all gay couples, even if, as we've discussed, the wedding website they request is identical to one the company would sell to a heterosexual couple. Granting such a license to discriminate would empower all businesses that offer what they believe to be expressive services, from architects to photographers to consultants, to refuse service to customers because of their disability, sexual orientation, religion, or race. The Free Speech Clause exemption the company seeks here is sweeping because it would apply not just to sincerely held religious beliefs, like those of the company and its owner, but also to all sorts of racist, sexist, and bigoted views. This rule would allow another web design company to say no interracial Official 1 couples served, an ad agency could refuse women-led businesses, and a tech consulting company could refuse to serve 303 Creative itself because it disagreed with the owner's religion. This Court should not upend long-settled law that protects the full and equal access of all Americans to our public marketplace. I welcome the Court's questions.
Justice Thomas: Counsel, you have spent quite a bit of your brief talking about the -- the tradition of public accommodations laws. Would you just spend a few minutes or whatever amount of time you can explaining whether there is a similarly long tradition of public accommodations laws applying to speech --
Eric R. Olson: Well --
Justice Thomas: -- or expressive conduct?
Eric R. Olson: -- well, certainly, Justice Thomas. The history of public accommodation law shows that when those held themselves open to the public, they were required to serve everybody. Official
Justice Thomas: I understand that. I understand -- the complicating factor here -- fact here is this is not a hotel, this is not a restaurant, this is not a riverboat or a train. I'm interested in the intersection of public accommodations law and speech.
Eric R. Olson: I -- I think we see some public accommodation law being applied to examples that are speech today, tailors, barbers, et cetera. But what we don't see over the long history of public accommodation laws in this country is people raising First Amendment speech objections to those laws applying to it.
Justice Thomas: Well, I think that in part depends upon whether or not you're engaging in speech. If you're running a train business or a riverboat business, that's not exactly -- doesn't implicate speech. So those are straightforward. I understand that. What I'm interested in is, when you are talking about public accommodations laws directly or indirectly regulating speech, is there a tradition of that? Can you point to cases? Can you point to common law treatises, et cetera? Official
Eric R. Olson: So I think that the historical record is sparse on both sides, but the two things I would say, Justice Thomas, is what we don't see is a history of public accommodation laws carving out speech. They all are laws of general applicability that apply to all those operating a trade to the public. They don't say except those engaged in expressive conduct. And, with that framework, we do not see a history of cases where people raise their hand and say it shouldn't apply to me because I'm speaking. And so I think the public accommodations brief on our side in this case sets that out quite nicely. But -- but there is no case from 150 years ago that comes out either way with this exact issue.
Justice Gorsuch: Mr. Olson, I --
Chief Justice Roberts: Well, just --
Justice Gorsuch: I'm -- I'm sorry, Chief.
Chief Justice Roberts: Not -- not 150 years ago, but I think it's 10 or -- or -- or 12 years ago, in City of Fulton, which you cite in your brief, it sort of follows up on Justice Official 1 Thomas's question, although you don't even get to speech. I think the Court in that case said, when you're looking at some of the concerns that you're talking about, that a individualized, subjective, multifactor, whatever, determination, in that case foster care and -- and adoption, is -- is not the same as a seat on the bus or a room in the hotel. How -- how does your argument fit with that position that was articulated in the Court with respect to the nature of individual speakers' message?
Eric R. Olson: Well, I think those questions are not presented in this case because most artists are not public accommodations. But my friend stipulated that the company was a public accommodation. And often a lot of the hypotheticals that we've been talking about, about artists, and -- and, certainly, Lin-Manuel Miranda, who is writing the play "Hamilton," is not a --
Chief Justice Roberts: But, in terms of -- in terms of the concern expressed in a lot of our cases about compelled speech and the distinction of others where you can have a Official 1 requirement of serving people without regard to certain characteristics, the case did make the point that to the extent there's subjective, individualized determinations that go into the decision about placing children, that it did not -- that those cases were not, at least not directly, applicable?
Eric R. Olson: That's correct, Chief Justice Roberts. And I think, here, again, the record is entirely devoid of those factors because the company chose to litigate this case as a public accommodation. I think a lot of the description that we heard today would be powerful arguments that they may not be a public accommodation in what they do. But we simply don't have those facts here. But, certainly, the level of selectivity, the -- the -- the way in which the -- the potential customer engages with the -- the client -- I'm sorry, with the service provider, and how the service provider makes their product available or -- or known to the public all factor in that analysis.
Chief Justice Roberts: Yeah, and I'd like to ask you a question about one other case. It's the one you rely on most heavily in your Official 1 brief, Rumsfeld against FAIR. And it seems to me that a distinction you have to deal with in that case is that the speech there was not compelled, or what was compelled was not considered speech. It -- it involved the schools providing rooms for the military recruiter, and when it came to the question of compelled speech, what the Court said is empty rooms don't speak. But, here, of course, the whole argument is that the speech is being compelled. So -- so how does the either holding or analysis in FAIR help you?
Eric R. Olson: Two responses, Chief Justice. First is, in FAIR, it recognized that there was some speech by the schools. There were e-mails, posters on bulletin boards, et cetera. So there was some speech, but it said it was incidental, like in O'Brien, to the purpose of the regulation, which was ensuring equal access, similar to Colorado's law here. And -- and the second point I would make, and it comes from the -- the example of the identical website being turned away for the same-sex couple but provided to the opposite-sex Official 1 couple, here, sometimes the speech itself does not change. And what this company seeks, if you look at the -- the specific prayer for relief in the complaint, is a total permission to turn away every same-sex couple, even if they seek exactly the same website that an opposite-sex couple that they will provide.
Chief Justice Roberts: Well, just to -- just to stop you, their point is they do not turn away same-sex couples who want the service that they're providing. They just won't provide that service with respect to a particular type of wedding.
Eric R. Olson: I respectfully disagree, Your -- Your Honor. What the company said is under no circumstances will they provide a wedding website for a same-sex wedding, period.
Chief Justice Roberts: Correct.
Eric R. Olson: Right. And --
Chief Justice Roberts: But that -- I'm sorry.
Eric R. Olson: -- and that is status-based discrimination when -- and it doesn't matter whose credit card is used for that transaction. What -- what -- the -- the Official 1 sole basis that the company seeks relief from this Court is they would like an injunction that says so long as -- if -- if this is going to be used for a same-sex wedding, then we need not provide it. And -- and so it's a status-based discrimination that they seek from this Court.
Justice Alito: Let me see if I understand your argument. I understand you to be arguing that a website designer can put anything it wants on a standardized website, even if that includes a denunciation of same-sex marriage. Is that correct?
Eric R. Olson: Yes.
Justice Alito: So, if the -- to pick up on Justice Kagan's hypothetical from earlier this morning, if the standard announcement is "Made With Love by Amber, who believes that a valid marriage is a union between one man and one woman," that's okay?
Eric R. Olson: If that's on every website, yes.
Justice Alito: Then this is -- your argument is -- you're making kind of a sliver of an argument, right? What is the difference between that and what you think is a violation Official 1 of your law?
Eric R. Olson: Two things, Justice Alito. The first --
Justice Alito: I mean, you're not -- that website designer is not going to be serving a same-sex couple if the website designer puts that on the website. They're turning away same-sex couples by doing that, are they not?
Eric R. Olson: No, they're -- they're not turning away same-sex couples. They are defining their -- they are able to choose what services they offer, and that is the service they are choosing to offer. The state does not regulate that at all. All that the state says is whatever you choose to sell --
Justice Alito: No, I understand that. Does it make any difference in the real world as a practical matter?
Eric R. Olson: Well, it -- it does in the real world because a -- a -- my second point is that a website designer like that will lose a lot of opposite-sex couples as potential clients as well because they don't want to be seen with that message. Official 1 And what the company wants to do here is take advantage of the public marketplace, go out and sell their wares to everyone and have control over -- and change what they sell to different people based on the status of -- of what they have.
Justice Alito: Okay. To --
Eric R. Olson: And -- and --
Justice Alito: Yeah, I understand that. So to sell to everyone. So this goes to your -- to the interpretation of your statute, and I'm not quite clear what your position is on it. If a business provides a service that is "open to the public," it's a public accommodation, right?
Eric R. Olson: Yeah. You have to engage in sales or offering services to the public, yes.
Justice Alito: Okay. So what does "open to the public" mean? Does that mean no selectivity whatsoever? Anybody who wants this service can get it and it may be, if there's a -- a greater demand, then the demand exceeds the supply, you've got to wait in line. But, if there's any selectivity at all, they're out? Official
Eric R. Olson: Well, again, it's not presented in this case. The way that Colorado has historically addressed that question is -- are, say, golf clubs who had limited their membership to one gender, you know, did they make money from public coming to their courses, did they -- did you have to be a member to dine in the restaurant, et cetera. So selectivity as the Court discussed in Fulton certainly is a factor, but it -- but it is a -- a fact-specific determination that -- that awaits more facts than we have here because it can --
Justice Alito: Well, you should understand what your statute means. So suppose a website designer says, I'm -- I'm offering my services, but I'm really in -- I -- I'm in a lot of demand for my services and I -- I reserve the right to decide who I will provide a website for and who I will not. Is it a public accommodation then?
Eric R. Olson: If that's the only factor, then yes, but it can make decisions about who to supply that -- that aren't based on protected characteristics and choose its clientele just Official 1 fine. What it can't do is say I reserve the right to refuse service which means in practice I will not serve black people.
Justice Jackson: And isn't the -- part of the problem here in terms of trying to answer Justice Alito's various hypotheticals that we're presented with a record of stipulated facts and that the opposing -- 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.
Eric R. Olson: That's correct. And -- and I would say that we've -- 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 to --
Justice Alito: Well, my question really was not whether this website is a public Official 1 accommodation. I understand that's been stipulated. That wasn't my question. What -- what I'm trying to understand is the breadth of your argument, and what I get is that you're making a -- a -- a tiny sliver of an argument. So the website can put anything on its website, even something that will blatantly or subtly tell a same-sex couple, well, this is not a service that I want. They can do that. And a 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 far.
Eric R. Olson: No, I -- I don't think it's just by reserving a degree -- degree of selectivity, but I think it -- the more selective and sort of curated the process is, it makes it less likely to be a -- a public accommodation, as the Court recognized in -- in Fulton.
Justice Alito: All right.
Justice Kagan: General --
Justice Alito: Let me ask you a -- a -- and then I'll finish this line -- some hypotheticals in a brief submitted by Josh Official 1 Blackman, okay? A -- a Jewish man and a Jewish woman who are engaged to be married ask a Jewish website designer to build a website to celebrate their upcoming -- their -- their nuptials. No problem. Okay. Another Jewish man and a Christian woman who are engaged to be married ask a Jewish website designer to build a website to celebrate their -- their nuptials. Big problem. "Many Jews consider intermarriage an existential threat to the future of Judaism." Does that website have to accept the second couple?
Eric R. Olson: Again, as we talked about before, if the Jewish website designer has, you know, very explicitly Jewish themes on the -- the wedding, they don't need to -- on the website, they don't need to take that down for the -- the -- the interreligious 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.
Justice Alito: So the fact that they offer this to -- that this is a Jewish -- that Official 1 -- that it's offered mostly to Jews, that's enough to make it -- or exclusively to Jews, that's enough to make it sufficiently selective to get them out from your --
Eric R. Olson: No. I'm -- 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, they can't refuse to sell that website to someone solely because of their -- customer's or the couple's religion.
Justice Alito: Okay. An unmarried Jewish person asks a Jewish photographer to take a photograph for his Jdate dating profile. It's a -- a dating service, I gather, for Jewish people.
Justice Kagan: It is. (Laughter.)
Justice Alito: All right. Maybe Justice Kagan will also be familiar with the next website I'm going to mention. So, next, a Jewish person asks a Official 1 Jewish photographer to take a photograph for his ashleymadison.com dating profile. (Laughter.)
Justice Alito: I'm not suggesting that. I mean, she knows a lot of things. I'm not suggesting -- okay. Does he have to do it?
Eric R. Olson: 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 -- to others, taking pictures, you know, for use on websites, then probably yes, but it -- it depends on --
Justice Alito: Okay, Justice -- then I really will stop. Justice -- Justice Jackson's example of the -- the Santa in the mall who doesn't want his picture taken with black children. So, if there's a -- a black Santa at the other end of the mall and he doesn't want to have his picture taken with a -- a child who's dressed up in a Klu Klux Klan outfit, that -- that black Santa has to do that?
Eric R. Olson: No, because Ku Klux Klan Official 1 outfits are not protected characteristics under public accommodation laws.
Justice Kagan: And, presumably, that would be the same Ku Klux Clan outfit regardless whether the child was black or white or any other characteristic.
Justice Alito: You do see -- you do see a lot of black children in Ku Klux Klan outfits, right? All the -- all the time. Suppose that -- I -- I -- I mean --
Justice Kagan: Can I -- can I -- can I --
Justice Alito: Yeah.
Justice Kagan: Yeah? Is that all right?
Justice Alito: Sure.
Justice Kagan: I have one, I -- I hope, easy question for you and then a more difficult question. So, as I understand your argument, the kind of you can say anything you want as long as you say it to everybody or not say anything you want as long as you don't say it to anybody. So, gay couple walks in to Ms. Smith's office and says, we want a quote from Official 1 Obergefell, and she says, I don't do that. That's okay with you, yes?
Eric R. Olson: Yes.
Justice Kagan: Because she doesn't do it for anybody, yeah?
Eric R. Olson: Correct.
Justice Kagan: Okay. Gay couple walks in and says -- this is the harder one, all right? Gay couple walks in and says, 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. I want -- I want in the -- on the home page the website to say "God blesses this union." All right? And Ms. Smith says -- well, that's a problem, Ms. Smith says. And the gay couple says, well, you would say that if -- if we were an opposite-sex couple, right? And -- and she says, we -- I would say that if you were an opposite-sex couple. And the gay couple says, well, what's the big deal then? I don't know, I think that that kind of is different, so I'm wondering whether you think it's different. Official
Eric R. Olson: Well, I -- 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, right? This is just a procedure --
Justice Kagan: Yeah, possible. I get the -- I get the idea that there's a kind of religious element to it. And 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 Official 1 about it.
Eric R. Olson: So I agree, Justice Kagan, and -- and I think -- imagine a statement that says something along the lines of -- you know, there's a dating website that meets people and then the people that they connect through it says, you know, this is a wonderful marriage that we support. No religion, right? And -- and then where you have that direct speech, it does get a little trickier, but -- but I -- 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 some -- here, it's -- you know, it may be that -- that looking at the service is, well, I evaluate your marriage and I give it a thumbs-up or a thumbs-down, and, you know, I assume you don't want the thumbs-down on the website, so if you get a thumbs-up, you get on the website. So that's a fact question I think that would be hard. But, if it was a statement that was made solely based on the status of the person Official 1 seeking the website, in other words, thumbs-up for all opposite-sex couples, thumbs-down for -- for same-sex couples, then it's an easier -- easier question.
Justice Jackson: Isn't Justice --
Justice Kagan: Yeah, I --
Chief Justice Roberts: Thank -- thank you, counsel. Justice Thomas, anything further? Justice Alito?
Justice Alito: Well, back to my black Santa example, suppose it's a state that defines a -- a public accommodate -- prohibits a public accommodation to discriminate on the basis of political ideology. So then -- then the -- the picture has to be taken?
Eric R. Olson: I -- I think that is likely -- those political ideology distinctions face much more difficult constitutional scrutiny and I -- I think are separate in kind from the kind of characteristics that we're talking about here, which are categories of invidious discrimination. I can only think, in most circumstances, political ideology did not satisfy the constitutional requirements. Official
Justice Alito: So it has to satisfy a constitutional requirement? Your argument is dependent on that?
Eric R. Olson: Yes, because even under O'Brien, there's -- there's -- we have to show a basis for what we're doing.
Justice Alito: In light of what Justice Kennedy wrote in Obergefell about honorable people who object to same-sex marriage, do you think it's fair to equate opposition to same-sex marriage with opposition to interracial marriage?
Eric R. Olson: Yes, because -- in how the law applies, not in -- in the -- the discussion with folks because, of course, honorable people have different views on this issue. But I think, when you look at what Justice Kennedy said there, the way to honor that requirement is, as this Court has set forth in Fulton, in Masterpiece, of having a rigorous interrogation to make sure that there are neutral and generally applicable laws applied in fact that way that don't single out religion. And then the very next sentence of what Justice Kennedy said in Obergefell talked Official 1 about, when -- when it transformed, that honest and decent disagreement transformed into enacted law and policy, the necessary consequence is to put the imprimatur of the state on that exclusion. And I think, if this Court were to say that the imprimatur of this Court would allow a web designer to say no same-sex people allowed or allow a school photographer to say, you know, no pictures of --
Justice Alito: Well, do you think Justice Kennedy would have said that there are -- that it's honorable to oppose -- to discriminate on the basis of race?
Eric R. Olson: No, I don't think so.
Justice Alito: Let me just give you one -- one more hypothetical. Suppose someone offers the service of writing customized wedding vows or 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 that this -- this outfit is just starting up. They don't have a lot of Official 1 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. All right? Can -- can they be forced to write vows or speeches that espouse things they loathe?
Eric R. Olson: No, they cannot be forced to -- to write vows or speeches that espouse things they loathe because that's not a protected characteristic. But they cannot -- I assume in your example --
Justice Alito: Well, is -- is -- is the prohibition or the limitation against compelled speech limited to things that are unconstitutional?
Eric R. Olson: No. I think -- I think there are --
Justice Alito: So why does it matter?
Eric R. Olson: Well, because, here, things they loathe is not a protected characteristic anywhere I know -- anywhere that I know of, but on the constitutional limit, it -- it doesn't have --
Justice Alito: Okay. It doesn't fall within -- you say -- you say it doesn't fall Official 1 within your statute. But maybe it's going to fall within the statute -- it may fall within another statute.
Eric R. Olson: Under -- under any level of scrutiny here, you look at the state's compelling interest in -- in -- in determining the -- the -- the -- the incidental burden on the -- in our example, the vow writer's rights, and -- and I don't know of any state that has sort of a compelled -- it has the same compelling interest as they -- as they do for, you know, protecting things that other people loathe as they do for sex, gender, religion discrimination. So I -- I think it would be a different analysis.
Chief Justice Roberts: Justice Sotomayor?
Justice Sotomayor: 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 Petitioner 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, sex, religion, or sexual orientation, correct? Official
Eric R. Olson: Yes.
Chief Justice Roberts: Kagan? Justice Gorsuch?
Justice Gorsuch: Good morning, Mr. Olson.
Eric R. Olson: Is it still morning?
Justice Gorsuch: Just barely. (Laughter.)
Justice Gorsuch: It must not feel like it standing where you are. (Laughter.)
Eric R. Olson: I'm here all day, Justice Gorsuch. (Laughter.)
Justice Gorsuch: It's good to see you. We -- we've had some discussion about whether websites are speech or whether they are some -- a service off the shelf. And I -- I -- 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, and expressive activity in each and every circumstance. What do we do about that from your Official 1 perspective? Don't we have to take that as given?
Eric R. Olson: Yes, but it doesn't change the analysis, I think.
Justice Gorsuch: Why not? Because I do see a -- 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 -- and to require somebody to create an expression. Those are two different things analytically in our law. So help me out.
Eric R. Olson: Well, I -- I think, along with the stipulations, we need to look at the specific relief that the company seeks.
Justice Gorsuch: But those are the stipulations.
Eric R. Olson: They are the stipulations. And -- and the specific relief that the company seeks is the ability to turn away every single same-sex customer.
Justice Gorsuch: Well, they can ask for what they want. What they get might be another thing, Mr. Olson. But how we analyze Official 1 the case depends upon those stipulations.
Eric R. Olson: Of course, it does. And -- and --
Justice Gorsuch: Okay. Okay. And then, separately, I -- I -- I was intrigued by your answer before my friends at the Tenth 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 -- 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 that person?
Eric R. Olson: Not at all. And -- and I admit I don't have firmly in mind the exact contours of my answer a couple years ago to the Tenth Circuit, but I -- I will tell you what Colorado law says, which is you -- a freelance writer may or may not be a public accommodation --
Justice Gorsuch: Well, let's -- let's assume they -- they are -- Official
Eric R. Olson: Okay.
Justice Gorsuch: -- under your definition, pretty broad, very different than the historical understanding of public accommodation, but we've gone over that.
Eric R. Olson: So -- 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 offer a service to someone, you need to offer that service to --
Justice Gorsuch: I offer to write press releases for anyone. It's not who, but it is a what. And the what is, I won't write a press release that expresses religious views or that I disagree with.
Eric R. Olson: Well -- 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 -- you can --
Justice Gorsuch: No, no, no, I'm -- I'm happy to do it generally speaking but just not ones I disagree with. There are many I would agree with across a wide variety of Official 1 religious faiths, but I'm not going to do it for some with whom I disagree.
Eric R. Olson: Well -- well, even in that circumstance, what Colorado looks to is the service you actually provide, and you choose the service so long as -- you -- you could say I -- I --
Justice Gorsuch: So the answer is yes, Colorado would compel that person?
Eric R. Olson: No, no, the answer is no.
Justice Gorsuch: Okay, why?
Eric R. Olson: Because Colorado could say you as a -- as a speech writer could say, I write -- you know, the 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 knowledges. But you --
Justice Gorsuch: Well, no, no, no. It's not on -- you're changing my hypothetical, Mr. Olson --
Eric R. Olson: Well --
Justice Gorsuch: -- that I disagree with, that --
Eric R. Olson: Okay.
Justice Gorsuch: -- that I find Official 1 offensive to my religious beliefs. That's the hypothetical.
Eric R. Olson: So long as you would sell that to everyone, not based on their religion, but you -- you can define the contours of the product, you can choose the contours of the product that you sell, but you --
Justice Gorsuch: I call it -- I call it speech, but you can call it a product if you want.
Eric R. Olson: Well, we'll -- we'll call it speech. You -- you can choose the content of -- of what you sell. You just can't --
Justice Gorsuch: What you say.
Eric R. Olson: -- choose who you sell to.
Justice Gorsuch: Okay.
Eric R. Olson: Right? And so you could say, I'm going to -- I'm going to focus on these things and -- but I need to sell that to everyone, even if the person who wants to buy it is a member of a religious faith that I disagree with. That gets by --
Justice Gorsuch: So I will -- I will write a press release for many faiths and many belief systems that are -- but they have to be Official 1 consistent with mine and I won't do it if it -- if it offends my religious faith. Good to go?
Eric R. Olson: So long as you sell that to everybody.
Justice Gorsuch: Yes. Okay. All right. What's different about this case? Because -- I'll just finish the question. I -- I know you're 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.
Eric R. Olson: The difference is, and, again, looking at the specific relief the company seeks, is --
Justice Gorsuch: Put -- put aside the specific relief the company seeks because it's up to courts to fashion relief.
Eric R. Olson: Yeah.
Justice Gorsuch: So that's -- that's not going to persuade me. Work on something that might. Official
Eric R. Olson: The difference is, is that that distinction the -- well, the -- the company has chosen to say they want to provide wedding websites generally and they will not provide --
Justice Gorsuch: Well, all manner of websites.
Eric R. Olson: Well --
Justice Gorsuch: The -- the -- 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 you stipulated to, that celebrate a particular thing that she finds offends her religious beliefs. I -- I still -- I'm -- I'm looking for the distinction between the two cases. One you say is okay and the other one not okay.
Eric R. Olson: Because the company, unlike our first example of the -- the speech writer --
Justice Gorsuch: Yeah.
Eric R. Olson: -- the company here says in no uncertain terms will they ever sell a company -- a -- a -- a -- a product or a service to a same-sex couple permitting that -- Official
Justice Gorsuch: No, what they say is we will not sell to anyone -- anyone a -- a message that I disagree with as a matter of religious faith, just as a speech writer says or the press release writer, the freelance writer, says I will not sell to anyone a speech that offends my religious beliefs.
Eric R. Olson: But, here, they are defining their service by excluding someone based on their --
Justice Gorsuch: That's their religious belief.
Eric R. Olson: Well, in Colorado --
Justice Gorsuch: You can't change their religious belief, right?
Eric R. Olson: No, but -- but -- well, two --
Justice Gorsuch: And you protect religious beliefs under the statute, right? That is one of the protected characteristics in theory.
Eric R. Olson: Yes, and in practice. If it wasn't in practice, we'd have heard about it over -- over the past several years, and -- and my friend has pointed to no example where this Official 1 has been applied in a --
Justice Gorsuch: Mr. Phillips did go through a re-education training program pursuant to Colorado law, did he not, Mr. Olson?
Eric R. Olson: He -- he went through a -- a process that ensured he was familiar with --
Justice Gorsuch: It was a re-education program, right?
Eric R. Olson: It was not a re-education program.
Justice Gorsuch: What do you call it?
Eric R. Olson: It was a process to make sure he was familiar with Colorado law.
Justice Gorsuch: Someone might be excused for calling that a re-education program.
Eric R. Olson: I strongly disagree, Justice Gorsuch.
Justice Gorsuch: Thank you, Mr. Olson.
Chief Justice Roberts: Justice Kavanaugh?
Justice Kavanaugh: I'm interested in picking up on those questions and -- and what Colorado's position on the First Amendment could lead to, not what you would do based on your Official 1 representation, but what your theory of the First Amendment could lead to in thinking about the proper analogy to a website designer. So I've been thinking about a publishing house that says, we're not going to publish -- we support pro-choice positions. We're not going to publish books that support a pro-life position or that we support same-sex marriage and we're not going to publish books that take a different position on same-sex marriage. Does the publishing house have a First Amendment ability to select the kinds of books that it will publish along the lines of my hypotheticals there?
Eric R. Olson: Of -- of course, it does, and I think a publishing house is not a public accommodation for precisely the level of selectivity and choice that -- that it goes into, just like the Court recognized in Fulton.
Justice Kavanaugh: Right. But, if it were a public accommodation, it would still have a First Amendment right, correct?
Eric R. Olson: Yes.
Justice Kavanaugh: You sure about Official 1 that?
Eric R. Olson: Yes, because what -- all the public accommodation law says is you can't turn someone away because of who they are. And -- and it would be different if your hypothetical was they will not publish gay authors. If -- if they were -- if they were a -- a publishing house who said they will -- will not --
Justice Kavanaugh: Right. That's the distinction right there.
Eric R. Olson: Yes.
Justice Kavanaugh: You put your finger on it, I think. So the website designer is different from the publishing house how?
Eric R. Olson: Because the website designer is refusing to -- to publish gay authors using the publishing house example. They are saying, I will not provide this service to someone because of who they are, period.
Justice Kavanaugh: They say it's because of the message.
Eric R. Olson: I -- I -- I understand, but they define the service in a way that excludes people based on who they are, and that Official 1 violates Colorado law. And to the extent there's some incidental impact on their message, it's the kind of incidental impact that this Court held in O'Brien as to be appropriate, where a law is focused on conduct and not the -- the message itself.
Justice Kavanaugh: And I thought the amicus brief of Professors Carpenter and Volokh was fairly interesting. They supported the same-sex position in Masterpiece but that they say they're on the opposite side in this case and they say that the reason is because this case involves speech. They say a website designer is unlike a baker and that Hurley therefore is the key precedent here, and they say there is no serious question, their words, no serious question that this case involves compelled speech. Do you agree it involves compelled speech?
Eric R. Olson: No.
Justice Kavanaugh: Even though they say there's no serious question that it does, you disagree with that? Official
Eric R. Olson: We disagree with that.
Justice Kavanaugh: Okay. Thank you.
Chief Justice Roberts: Justice Barrett?
Justice Barrett: How can 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 read did, and she has to say it, why isn't it compelled speech?
Eric R. Olson: Because, on the stipulations and -- and where we are here, the company would refuse to provide the same identical speech to a customer solely because of who they are. And if a company is going to -- is going to provide speech, already said they're going to do it, the website I think was the -- the colloquy with Your Honor, Justice Barrett, where someone comes in and says, I want the exact same website as you gave to my friends, and the company says, no, I will not provide that to you and the only reason is because of who -- who you are, that's not compelled speech. Certainly, there are some Official 1 circumstances where there may be more of this, you know, tell the story, et cetera, but the company can choose to determine the services that it wants. Here, it has chosen to say that I will not provide the exact same website for one couple that I would for another solely based on the identity of the couple.
Justice Barrett: Okay. I want to give you a hypothetical that doesn't rely on disagreement, 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 announcements 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 going to run to promote and recognize same-sex marriage only same-sex marriage announcements, turns away heterosexual announcements, not because it disparages or disagrees with opposite-sex unions but because it's trying to promote something Official 100 else. Can it do that? That's a protected characteristic under the law?
Eric R. Olson: Well, 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 in --
Justice Barrett: Well, you can't run every marriage announcement that comes. There would be too many. So you're necessarily going to pick and choose, just like every business is going to have to pick and choose based on resources.
Eric R. Olson: Right -- right -- well, and I think -- but, in that circumstances, if the sole basis for picking and choosing is a protected characteristic, The New York Times couldn't say that we're -- we're going to have -- this month we're just going to run opposite-sex weddings, next month we're just going to run white people weddings, next month we're just going to run --
Justice Barrett: So, for gay pride month, a newspaper can't choose to try to Official 101 celebrate that and communicate a message by running only gay marriage announcements?
Eric R. Olson: Well, again, I think the answer is no, but that's an unusual case because a newspaper obviously typically has great discretion.
Justice Barrett: Well, it might be an unusual case, but the problem and -- 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-sex marriage announcements and turns away opposite sex.
Eric R. Olson: Well --
Justice Barrett: Can the gay rights organization do that?
Eric R. Olson: Right. I think there that's very unlikely to be a public accommodation, so the answer is likely yes, but -- Official
Justice Barrett: Well, they're paid. Why? I mean, they're paid. I mean, they -- they craft these for -- it's a business, it's a commercial enterprise, but they craft these announcements for the gay community.
Eric R. Olson: I guess -- who crafts the announcements? I thought it was --
Justice Barrett: So 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, et cetera, but it's done specifically to celebrate love in that community. Can they turn away opposite-sex marriage announcements?
Eric R. Olson: So, in this unusual hypothetical, assuming they're a public accommodation, they cannot turn away announcements based on a protected characteristic. So they couldn't turn around -- turn away opposite-sex announcements or interracial marriages, I -- I think, if they're a public accommodation. But I think the -- Official
Justice Barrett: So they can be compelled to -- it's not -- it's not that they have anything against opposite-sex 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?
Eric R. Olson: Again, assuming they're a public accommodation and opening themselves to the public --
Justice Barrett: Yes, assuming they're --
Eric R. Olson: Yes, they -- they can --
Justice Barrett: -- a public accommodation.
Eric R. Olson: -- they can be -- do that, but I think what makes the hypothetical difficult is that that assumption likely does -- does not apply to most organizations like that that we talked --
Justice Barrett: But 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 Official 104 we held? Because Hurley is your hardest case, right?
Eric R. Olson: It's a difficult case, but it -- it -- but we are different than Hurley, and I'm happy to talk about why. But the public accommodation law was applied to the parade in -- in Hurley, and the Court said that was -- because of the peculiar circumstances there, it -- 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. The -- the company is turning away people for their products based solely on who they are, and that's the big difference from here and Hurley.
Justice Barrett: Thank you.
Chief Justice Roberts: Justice Jackson?
Justice Jackson: Yes. So I just wanted to say how perplexed I was about the questions that seemed to distinguish this kind of sexual orientation refusal to provide services from the race discrimination. And there were some questions raised about, you Official 105 know, religion being the basis, but I -- I guess -- and -- and you might be able to help me with this and you might not, but I -- I was fairly certain that, historically, opposition to interracial marriages and to integration in many instances was on religious grounds. So I don't know that we can say that just because we have a religious objection to same-sex marriage in this situation, that wouldn't necessarily implicate religious objections to other kinds of situations. Am I right about that?
Eric R. Olson: Absolutely correct about that. I mean, Bob Jones University is a good example of that case --
Justice Jackson: All right. So --
Eric R. Olson: -- where there was a religious basis --
Justice Jackson: -- so whatever we decide here, as Justice Barrett suggested, could have implications for other kinds of categorizations and First Amendment -- strongly religious held First Amendment invocations of rights?
Eric R. Olson: Absolutely, and I think Official 106 the -- 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 exemption they seek, just to weddings or -- sexual orientation is involved.
Justice Jackson: All right. So can I just direct your attention back to Justice Kagan's question? Because I think she -- she made good points about, you know, the "God bless this union" hypothetical. And I guess I was thinking, 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, you 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's statement. So, if it was clear that it was not Official 107 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 going to put that on your website? Justice Alito says maybe that person will walk away, and maybe they will. But the point is, if they do that in every situation and it's clear that it's not their statement, then do we solve the -- the -- the -- the difficult Justice Kagan problem of, like, who's -- who's making an expression here?
Eric R. Olson: I think we -- 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 303 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 Official 108 philosophy -- our -- our own website, then they will understand our philosophy and understand that there's some implicit, you know, recognition or endorsement -- what -- whatever, of the wedding. But, on the stipulated facts here, the question you pose is totally wide open. There's no evidence in the record whatsoever and no websites in the record to look at to see whether this -- anyone would attribute the speech about the couple on the wedding website to the designer as opposed to the couple.
Justice Jackson: Should -- should 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 -- could it be that we would say, you know, the First Amendment protects the web designer's abilities to, you know, not have this kind of a -- a same-sex wedding website only if it would be clear from, you know, a neutral observer or from the audience that having that website is their own expression?
Eric R. Olson: So two things to say on Official 109 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 -- and who the onlooker would attribute the message to. So I think you certainly could -- could -- could build on that. And, again, here, there's no evidence whatsoever that -- that anyone would look at a wedding website designed by 303 Creative and say, oh, that is, you know, the -- the speech and beliefs of the designer as opposed to the couple getting married.
Justice Jackson: Thank you.
Chief Justice Roberts: Thank you, counsel.
Eric R. Olson: Thank you.
Chief Justice Roberts: Mr. Fletcher. ORAL ARGUMENT OF BRIAN H. FLETCHER FOR THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE RESPONDENTS
Brian H. Fletcher: Thank you, Mr. Chief Justice, and may it please the Court: My friend, Ms. Waggoner, offered a two-part test this morning for when a commercial business is entitled to an exemption from a generally applicable public accommodations law. Official 110 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. Now, 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 mentioned, 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 e-mails, newsletters, other things of that nature. And this Court did not disagree. It 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 Official 111 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 is it incidental to a content-neutral regulation of conduct and that 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.
Chief Justice Roberts: I do think the Court in -- in Rumsfeld was dealing with the sort of compulsion that is significantly different from the compulsion here. In what other case have we upheld compelling speech, in other words, not simply just restricting speech but actually compelling an individual to engage in speech contrary to her beliefs?
Brian H. Fletcher: 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 and that --
Chief Justice Roberts: Well, they opposed the military's policies, but all they Official 112 really had to do was give them an empty room.
Brian H. Fletcher: Mr. Chief Justice, that's not correct. At pages 60 to 62, the Court acknowledges that there were things that the law schools were required to do, like sending e-mails, coordinating meetings, including announcements in their newsletters that were clearly speech. The court below had held that that --
Chief Justice Roberts: Advising -- advising people that the military recruiters were available in a particular room, right?
Brian H. Fletcher: And including their announcements, distributing the announcements on behalf of the military, including the military's announcements in the law school's own newsletter. The court below held and the law schools --
Chief Justice Roberts: Of the -- of 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 -- is seeking to convey? Official
Brian H. Fletcher: 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 Kagan, 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, if Colorado ever applied its law to compel her to create messages or express religious reviews 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.
Justice Kagan: In other words, you would say that here is 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 is where the military recruiters are going to be is very similar to here is where the wedding is going to take place, which is what standard websites do. Official
Brian H. Fletcher: Exactly. And in saying that, I don't want to at all minimize Ms. Smith's 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 objectionable.
Justice Barrett: What if the law schools also had to make available their CDO to sit down with the military and help them craft, you know, in a -- 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 post it? Would that change Rumsfeld?
Brian H. Fletcher: 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 its Court's 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 Official 115 you would provide for someone else and are you being required to do something that goes beyond that to express the sort of opinion-related statements that Justice Kagan espoused.
Justice Barrett: What 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 is why it would appealing, what 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?
Brian H. Fletcher: So I guess here is the way I'd 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 572 to 573 is being emphatic in saying this parade is not excluding people because they are gay and lesbian. It 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, Official 116 it's not serving the content-neutral regulation of conduct because they're not discriminating on the basis of status. Instead, the law in 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 Ms. Smith to say messages or to speak messages that she 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's status.
Justice Kagan: But what -- what --
Justice Sotomayor: Well, I -- I -- 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. Official 117 Exhibit A, page 51, says Save The Date, Lilly and Luke, November 20, you're invited. And it says Lilly and Luke 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. Fifty-three is an RSVP with pictures. Fifty-four is "Our Blog, Bring Your Dancing Shoes." Fifty-five is their date, "It all began seven years ago," Lilly's version and Luke's version. It's clearly not 303's version. "We love each other and coffee" -- I don't even know what CO -- "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. Fifty-eight is the reception, location, spirits, dinner menu and dancing. Fifty-nine 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?
Brian H. Fletcher: I have, Justice Official 118 Sotomayor.
Justice Sotomayor: Do you believe that there's any page that says celebrate the marriage?
Brian H. Fletcher: I -- honestly, to -- 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 within this case because it is consistent with the stipulations Justice Gorsuch and with the scope of relief that they're asking for and with the type of services that Ms. Waggoner has described this morning.
Justice Sotomayor: What they're asking for is a status-based exemption to accommodate.
Brian H. Fletcher: That -- that's exactly right.
Justice Gorsuch: Well, on that --
Chief Justice Roberts: I thought --
Justice Sotomayor: Not a speech-based exemption. Official
Chief Justice Roberts: Just I -- I thought at pages 188A and 189A, the stipulation below said that the additions to the web page stated, and then it lists the firm belief in God that they, Ms. Smith, subscribed to. Is that -- do you understand that to be part of the stipulations or not?
Brian H. Fletcher: I do, 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 law.
Justice Gorsuch: We also --
Chief Justice Roberts: And -- I'm sorry, go ahead.
Justice Gorsuch: No, no. Please, Chief.
Chief Justice Roberts: I was just going to say also on page 188A is the determine -- determined -- the stipulation that -- that her religious beliefs will be unmistakable to the public after viewing the addition to the web page.
Brian H. Fletcher: Yes. Once again, Official 120 that's describing her website, not the websites that she would create for clients or the Colorado law might her -- might require her to provide on a nondiscriminatory basis.
Justice Gorsuch: And, counsel, we -- we also have stipulations from Colorado that the plaintiff is willing to work with all people, regardless of classifications such as race, creed, sexual orientation, and gender, right?
Brian H. Fletcher: In some respects, yes, but not --
Justice Gorsuch: No, that -- that is the -- I -- I -- I just read it. Do you disagree with that? It's a stipulated fact in this case.
Brian H. Fletcher: That is stipulated, but it's also clear that she will not provide any wedding website for a same-sex couple.
Justice Gorsuch: Well, for a same-sex wedding --
Brian H. Fletcher: For a same-sex wedding, yes.
Justice Gorsuch: -- and she wouldn't provide it to a heterosexual couple either, right? Official
Brian H. Fletcher: But that's still discrimination within the meaning of --
Justice Gorsuch: Just as she wouldn't sell a -- a website that celebrates a heterosexual union that she disagreed with to anyone regardless of their sexual orientation, right?
Brian H. Fletcher: 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-sex wedding is a form of status-based discrimination properly within the scope of public accommodations laws.
Justice Gorsuch: And, on -- on that, I just want to make sure I understand. Do we agree as well that this is -- this work that the plaintiff performs is expressive in nature?
Brian H. Fletcher: We do.
Justice Gorsuch: Okay. Thank you.
Justice Jackson: And if it's expressive, what -- what about my photograph hypothetical?
Brian H. Fletcher: So I didn't belabor Official 122 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 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 in Masterpiece Cakeshop that any sorts of carveouts in these areas have to be carefully cabined to avoid undermining the government's compelling interest in ensuring that all Americans have equal access to the public marketplace.
Justice Jackson: And so just to be clear, right, it -- 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 -- the artist, the photographer, wants Santa with Official 123 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 inconsistent with my view of how Santa should be depicted.
Brian H. Fletcher: We agree, Justice Jackson. We think, if you accept Petitioners' theory, the upshot is that that photographer or a photographer who says, I won't take corporate head shots 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.
Justice Barrett: Mr. Fletcher, what Official 124 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 a Catholic organization that basically stands for and advocates traditional views of marriage. This is the raison d'etre for the club. They host debates, invite speakers, and they want the standard website that this couple provides in their business, which is, you know, 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?
Brian H. Fletcher: I don't think they do --
Justice Barrett: Why? Official
Brian H. Fletcher: Because I don't think that's a refusal based on status.
Justice Barrett: Okay. This is my question, that's why I asked it, because I think, here, there's a -- a difference of opinion about whether turning down the same-sex couple simply for purposes of a 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?
Brian H. Fletcher: For a couple of reasons. I think, first of all, just to -- to start with same -- the same-sex marriage context, this Court has recognized that that's a circumstance where status and conduct are inextricably intertwined. In Lawrence and Masterpiece, the Court has said refusing to serve for same-sex 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 Official 126 expression of particular views is inextricably intertwined with having a particular religion or being a Democrat or a Republican. In general, in public accommodations laws, we say, when you discriminate against someone because you -- 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 -- I don't think --
Justice Barrett: So this is a carveout that's applicable just to the same-sex context?
Brian H. Fletcher: I think it's a context -- it's like the Court's recognition in Bray that a tax on yarmulkes is a tax on Jews. There are certain rare contexts where status and conduct are inextricably intertwined, and I think the Court has rightly recognized that same-sex marriage is one of them.
Justice Barrett: Thank you.
Chief Justice Roberts: Justice Thomas? Justice Alito?
Justice Alito: I want to make sure I Official 127 understand some of the contours of your argument. 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 is -- is not associated with the compelled speech.
Brian H. Fletcher: That's not the line that we draw, Justice Alito. I think we focused on is it being compelled pursuant -- incidental to a content-neutral regulation of conduct as in FAIR or is it not.
Justice Alito: Well, outside of that context, in general, does the prohibition or restriction of compelled speech apply only where there is no danger of attribution?
Brian H. Fletcher: I don't think so, no. I would imagine it applying in other contexts too.
Justice Alito: Okay. Do you agree with Mr. Olson that a -- a website for marriages can tailor the website in a way that makes the website unacceptable to same-sex couples?
Brian H. Fletcher: By saying, for instance, we -- on every website, we believe that marriage is only between one man and one Official 128 woman or something like that, yes, we do.
Justice Alito: You believe that's -- that's permissible?
Brian H. Fletcher: We 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 work.
Justice Alito: Mr. 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 to lose a significant amount of business because some opposite-sex couples wouldn't want that. But that's dependent on the views of the community about opposite-sex -- about same-sex -- I'm sorry, about same-sex marriages. What if it's in a community where 99 percent of the public agree with that view, that same-sex marriages are -- are bad, and they're happy to have that associated with it?
Brian H. Fletcher: So I don't think my answer changes, Justice Alito, because I think that imposing a requirement or prohibiting that inclusion on a website is directly targeting the expressive content of the website. Official
Justice Alito: Isn't that kind of a silly distinction?
Brian H. Fletcher: Justice Alito, respectfully, no, I -- 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 enter, and then it is violating the public accommodations laws.
Justice Alito: Is there any limit to how broadly a state can define a public accommodation? So suppose a state defines it as any business an -- it provide -- a business that provides services to a significant portion of the public.
Brian H. Fletcher: I --
Justice Alito: Would that make -- mean it's no -- it can't be regarded as a public accommodations anymore? Official
Brian H. Fletcher: I don't know about that line specifically, Justice Alito. I -- 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 test.
Justice Alito: Well, I -- I ask this because a lot of the arguments on your side seemed to view public accommodations -- that if it's a public accommodations law, it's generally okay, there's no problem with it. And that's why I want to know how far that can be expanded. So some selectivity would not necessarily take a business outside of the -- the definition of public accommodations? The same arguments would apply?
Brian H. Fletcher: 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 is.
Justice Alito: What about the characteristics that form the basis for an Official 131 impermissible denial of service? Any limit to those?
Brian H. Fletcher: I think there, 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, you know, things that go beyond the traditional things, like race, sex, sexual orientation, religion, those at issue here, and get out into political affiliation or, you know --
Justice Alito: It can't decline it as political affiliation?
Brian H. Fletcher: I --
Justice Alito: It can't define it to include political affiliations --
Brian H. Fletcher: I'm not saying it can't --
Justice Alito: -- or ideology?
Brian H. Fletcher: -- I'm not saying it can't define it that way. I'm just saying that the interests supported by such a prohibition would be weaker than the really core ones like Official 132 those that we see at issue here.
Justice Alito: Along -- okay. So how much selectivity do you think is required?
Brian H. Fletcher: So that's going to 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, an entity that generally holds itself out 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 -- I know I can't give you a bright line, but I think this is a familiar problem in public accommodations law.
Justice Alito: Okay. Suppose -- last -- I -- I think my last question. Suppose 303 Creative says that there's so much demand for our services that we have to be selective in who we choose. Would this be -- would that make this case -- would this case come out differently then? Official
Brian H. Fletcher: I don't 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.
Justice Alito: Thank you.
Chief Justice Roberts: Justice Sotomayor? Justice Kagan?
Justice Kagan: Mr. Fletcher, when I read your brief, I had the sense that you and General Olson, Colorado, parted ways on -- on -- on some matters, and I'll just -- on my hypothetical, God blesses this union, I thought that you might find -- 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.
Brian H. Fletcher: So let me give you the answer I'd give today. I'd start with just the same observation that General Olson gave you, which is that I think there are free exercise clause issues might come into play. I'll put those to the side because this is a speech case, Official 134 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, some --
Justice Kagan: Gay marriages are wonderful to take the religion out of it.
Brian H. Fletcher: Right. Right. So, obviously, Ms. 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 agrees. We agree. Right?
Justice Kagan: Right. I get the "God bless this union" was -- 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 saying it for other couples.
Brian H. Fletcher: Correct, yes. And I -- I guess I -- it's -- 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. Official 135 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 are 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 -- 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 the sort of direct burden you saw in Hurley, and the analysis looks very different.
Justice Kagan: Yeah. So what you said is part of what frustrates me about this case, because, you know, I guess my view when I'm trying to think up 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. Official 136 And -- and it really depends on the facts and on what exactly Ms. 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?
Brian H. Fletcher: So I think you should take the case as it comes to you. And as it comes to you, it's Ms. Smith saying, I want to post a sign saying, I will not provide any websites for any same-sex marriages. That's Pet. App. 7A.
Justice Kagan: Categorical rule.
Brian H. Fletcher: Categorical rule based on status. And at page 303 to 304 in the -- of the Joint Appendix, which General Olson referred to, that's the relief that she's seeking, how she's framed her claim. What she wants is an injunction that says you can't make --
Justice Kagan: 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?
Brian H. Fletcher: I -- I don't -- I don't Official 137 think it would because what I heard Ms. Waggoner to say this morning when she was asked about what her client wants to do is that the services she'd 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-sex couple, but she wouldn't provide it to a same-sex 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 to -- because I -- I recognize there are harder questions out there. It could and should do what it did in Holder versus Humanitarian Law Project and Doe versus Reed 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 is narrow relief in future cases with concrete facts. Official
Justice Kagan: 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. You must have done many moots of this case and thought of many hypotheticals. What are your two ones that you're like killers? (Laughter).
Justice Kagan: If we rule for Ms. Waggoner and her client, what happens? Give me two hypotheticals.
Brian H. Fletcher: That's a lot of pressure on my mooters. My -- my favorite one is this Court's decision in Runyon versus McCrary, which was about a school that wanted to exclude children of 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 -- this is a private school obviously. And I think, if Petitioners Official 139 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. 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.
Justice Kagan: Thank you.
Chief Justice Roberts: Justice Gorsuch?
Justice Gorsuch: I think, at the end of two hours -- we are now in the afternoon, by the way.
Brian H. Fletcher: Good afternoon. Official
Justice Gorsuch: That there -- there's actually radical agreement on -- on how we should analyze this case legally. Tell me if I'm wrong.
Brian H. Fletcher: I -- I disagree, but go ahead.
Justice Gorsuch: You haven't even given me a chance. (Laughter.)
Justice Gorsuch: That -- that -- that what -- what would be impermissible is discrimination on the basis of status, but what would be permissible is -- is refusing service because of a disagreement about views.
Brian H. Fletcher: So 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 outcome.
Justice Gorsuch: That that's about the right way to think about this case.
Brian H. Fletcher: But great difference of opinion about how legally you get there, and that leads to difference of opinion about how you answer it.
Justice Gorsuch: But -- but -- but -- Official 141 but -- but I -- I -- I was about -- you just steal my thunder, counsel. (Laughter.)
Justice Gorsuch: You think this is a status case. The other side thinks it's a -- a viewpoint case. Is that fair too?
Brian H. Fletcher: I -- I wouldn't say that. I acknowledge that this is a status and a message case.
Justice Gorsuch: Okay. It's both --
Brian H. Fletcher: Yes.
Justice Gorsuch: -- in your view, I'm sorry, whereas they would say it's a message case.
Brian H. Fletcher: Correct.
Justice Gorsuch: 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.
Brian H. Fletcher: Correct. And can I explain why we think --
Justice Gorsuch: Sure. Sure.
Brian H. Fletcher: -- that's the right to think about the case? Because we think the first question is, is the burden that's being Official 142 imposed on Ms. Smith incidental to a content-neutral regulation of conduct that says you can't turn people away because of status.
Justice Gorsuch: Right.
Brian H. Fletcher: So, to us, the first question is, is what she's doing status-based discrimination?
Justice Gorsuch: Right.
Brian H. Fletcher: And if the answer is yes, then the burden is incidental even if she thinks it affects her --
Justice Gorsuch: No, I -- I -- I -- I -- I got that about an hour ago, but thank you.
Brian H. Fletcher: I -- I -- I -- I apologize.
Justice Gorsuch: Now the -- the -- 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.
Brian H. Fletcher: I wouldn't describe it as the inverse situation because I didn't understand the hypothetical to say that the campus print -- website design company was turning people away because of their status. I Official 143 understood it to be turning them away because they wanted to say things that the company would not say.
Justice Gorsuch: That's one way of describing it, or one might describe it as turning away those with traditionalist views of marriage based on their religious beliefs, conservative Christians, for example.
Brian H. Fletcher: 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 --
Justice Gorsuch: 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.
Brian H. Fletcher: But denying everyone, whether it -- it -- it's --
Justice Gorsuch: Everyone, regardless Official 144 of status.
Brian H. Fletcher: Right, but it -- it's --
Justice Gorsuch: Right?
Brian H. Fletcher: -- 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 race discrimination.
Justice Gorsuch: It can be -- it can be status or it can be message, and we have to figure that out in this case, right?
Brian H. Fletcher: What I -- 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 at pages 1727 to 1729 in Masterpiece is yes.
Justice Gorsuch: Okay. Got it. Thank you.
Chief Justice Roberts: Justice Kavanaugh?
Justice Kavanaugh: I just want to follow up there and ask about one thing in your brief. On page 32 of your brief, you deal with Official 145 a few hypotheticals. The hypotheticals you dealt with were requiring Muslim filmmakers to promote Scientology, compelling lesbian artists to design church websites criticizing same-sex marriage, or -- and 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 the three hypotheticals you posit responding 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 too 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. Official
Brian H. Fletcher: Because, in 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 or the filmmaker to do what the hypothetical has 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 in FAIR and like we believe it's confronted with here.
Justice Kavanaugh: You don't think applying a public accommodations law to a speech-writing business that offers to do speeches or PR releases for anyone, but they say, oh, we're not going to do this message --
Brian H. Fletcher: That's --
Justice Kavanaugh: -- you don't think that's this --
Brian H. Fletcher: I -- I --
Justice Kavanaugh: They would say that's this case, and you say it's not because? Official
Brian H. Fletcher: I think they'd be wrong. I -- so, first of all, at a couple of levels.
Justice Kavanaugh: Yeah.
Brian H. Fletcher: Speech writers aren't likely to be public accommodations. Set that aside.
Justice Kavanaugh: Yeah, but --
Brian H. Fletcher: Suppose you have one that was one, right?
Justice Kavanaugh: -- until they are, after this case if you prevail, I mean, that's -- that's -- that's what states could do.
Brian H. Fletcher: But -- but I've tried to give you -- in response to Justice Alito, there is, I think, a constitutional backstop about, you know, 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 Official 148 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-sex marriage as status-based discrimination.
Justice Kavanaugh: Okay. Thank you.
Chief Justice Roberts: Justice Barrett? Justice Jackson?
Justice Jackson: Can I just say that I'm sort of trying to think about what you've just said in your exchange with Justice Kavanaugh -- it's late -- by wondering whether or not it has something to do with the message being implicitly provided in a situation in which the -- what's actually being stated is the same. So, you know, it -- 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 Official 149 gay marriage is great in any website, but what she's really asking for in this case, I think, is the right to say the same thing, here's the wedding, it's at this place, et cetera, et cetera, but she's afraid that if she says it for gay 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?
Brian H. Fletcher: I think 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 what by the who, that's not okay. But, other than that, she has the freedom to define her own product. And I think I'd agree with you entirely that the Court has never recognized Official 150 that sort of implicit problem as being sufficient. And, in fact, I would say, in FAIR, the Court squarely rejected it, where 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 oppose. No one doubted there was implicit support, and no one doubt it was speech, but because it was incidental, the Court upheld it.
Justice Jackson: Thank you.
Chief Justice Roberts: Thank you, counsel. Rebuttal, Ms. Waggoner? REBUTTAL ARGUMENT OF KRISTEN K. WAGGONER ON BEHALF OF THE PETITIONERS
Kristen K. Waggoner: Mr. Chief Justice, the United States says that you can refuse to express messages unless those messages are about marriage and unless those views on marriage have to do with believing that marriage is between a man and a woman. That's a significant concession that the government has made. In terms of this issue of categorical denial, the only categorical denial that Ms. Smith seeks or a categorical request she seeks Official 151 is to have message-based protection that the First Amendment already provides. It's based on the message. And, in that way, this Court decides every speech case based on the message. We can look at FAIR. We can look at Miami Herald, Tornillo. All of the Court's cases on speech where compelled speech is applied, you will see the "affect or alter the message" test, including in Hurley. And in order to rule against Ms. Smith in this particular case, it does seem that the Court would essentially have to overrule that Hurley framework. Second, Chief Justice Roberts raised the issue of FAIR and how FAIR applies, and the United States has suggested that somehow this case is closer to that. But, in FAIR itself, FAIR was about a duty to give access to empty rooms. The logistical e-mails that were to send directions to how go to those rooms was a duty that was required to facilitate legal conduct. This case is speech that's only incidental to speech. When you have a speech corrector -- creator, you're in a very different space, as the Court articulated in FAIR itself. Looking at Wooley and Barnette, where you are Official 152 intruding on the mind and the spirit to force someone to create a message that violates their convictions. FAIR would be a very different case if the law schools were to have advocated for the "don't ask, don't tell" policy. In terms of whose speech it is, that's come up a few times, at worst, it's both. Third-party perceptions cannot possibly matter to this case, or we wouldn't have any of the other compelled speech doctrine cases. Barnette, Wooley, the newspaper cases, all of those, you wouldn't have any. And the government would have unfettered authority to compel speech because we would all know it was the government that was doing it. In addition to that, the definition of public accommodation, my friends on the other side are playing a little fast and loose with what the statute says and how they've interpreted it in the past. The statute says a place of public accommodation. On page 41 of Colorado's brief, they say that applies to virtual sales as well, meaning the soccer mom earning some extra income trying to sell her handmade sign. She's a public accommodation Official 153 under this law. It is broad, and it would take away First Amendment rights just for opening a business. Certainly, Michelangelo's speech was sold and commissioned, but we would all say it had protection. In addition, the idea that we can't give a bright line, the bright line we give is the line that this Court has consistently followed, and I find it ironic in the United States also having to concede they can't give a bright line. For some reason, political speech is protected, but religious speech is not protected under this law. The bright line is, is the message affected? And, as Justice Gorsuch brought up, that line is massive when it comes to the distinction between pre-made speech, plug-and-play, and speech that you are creating in a custom way. In conclusion, Ms. Smith's speech has been chilled for over six years, and the record demonstrates every website she would create would create a custom message that is celebratory. Colorado asked this Court for the power to drive views like Ms. Smith's from the public square, views about marriage that this Official 154 Court has held are honorable and decent, promises that it has provided that the government would not mandate orthodoxy. Cultural winds may shift, but the Compelled Speech Doctrine should not. Compelled speech crushes the speaker's conscience, and it is the tool of authoritarianism, which is why this Court has never allowed it. In the end, it is not Ms. Smith who is asking you to change the law but Colorado. This Court should affirm, again, that public accommodation laws cannot be used to compel speech, and this includes artistic expression, photography, painting, calligraphy, and films, forms of media that the lower courts have shockingly refused -- refused to recognize as speech when it comes to marriage. And, yes, this Court should give guidance to limit the cruelty that has been imposed by endless litigation on artists like Jack Phillips. One need not agree with a particular belief to affirm that law-abiding people have a right to speak their conscience, including on a controversial subject like marriage, and that noble principle is rooted in love of neighbor, Official 155 extending the same rights to others that we want for ourselves. This right to be free from government coercion of speech is also foundational to our self-government and to the free and fearless pursuit of truth. Thank you. This Court should reverse.
Chief Justice Roberts: Thank you, counsel. The case is submitted. (Whereupon, at 12:26 p.m., the case was submitted.)