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This is the case that was argued earlier and that inspired the above comments.
Chris “Subscribe to Law Dork!” Geidner
Arguments will soon begin in 303 Creative v. Elenis, a case that was manufactured to overturn Employment Division v. Smith, but #SCOTUS didn't even grant cert on that question. So, we get a First Amendment case, which is really seeking exemptions to nondiscrimination laws.
Thomas asks about ripeness.
Kagan, then Jackson, then Sotomayor are trying to get out the argument about creation v. content v. use.
Waggoner is mightily trying to fight back.
Sotomayor: "Where's the line?"
Waggoner fell off track, so Alito jumps in.
Sotomayor, going through every page of the website mockup from the cert petition: "I'm looking at every page, and it's the story of the couple. ... I keep looking at all of the mockups .... I don't understand. How is this your story?"
Barrett, after getting the wrong answer from Waggoner to a lay-up hypothetical about the message in a website for a cis straight couple who doesn't care about any biblical understanding of opposite-sex marriages, goes back to clean up.
Sotomayor is going strong into getting Waggoner to admit that there is no line in her argument — based on race, etc. — and, when Alito can't jump in, she acknowledges there is no line, although she says there is.
Jackson asks about a sepia-toned photo taken of children with Santa. What if they say there's only white children in old photos so they won't take photos on Santa w/ non-white children?
Waggoner: "That may be an edge case." Claims "the message isn't in the product."
Sounds like Waggoner went to sit down, then Roberts goes, "Not so fast," because she still has the one-by-one questioning to go — different from when she argued Masterpiece.
Kagan: "What are the different meanings? What is the different speech that your client is to provide?"
Waggoner: "She believes that same-sex weddings contradict scripture. ... The announcement of the wedding itself is a concept that she believes is false."
Gorsuch now goes on to help further clean up the bad Waggoner answer to Barrett.
Waggoner's answer to Kavanaugh about the line being whether the action of the provider is speech.
Hard to understand how she gave the answer she gave to Jackson's Santa hypothetical. That seems, under her theory, not an "edge" case. It seems a slam dunk for her side.
Waggoner, on how the same words can mean something different in different context, offers up: "'My body, my choice' means something different" to an anti-vaxxer and a person supporting abortion rights.
Waggoner cannot handle Jackson's hypos.
Eric Olson, Colorado's solicitor general, is up now, defending the state's nondiscrimination public accommodations law against ADF's sought First Amendment exception.
Erm. How long ago does Roberts think Fulton was? (It was 2021.)
Olson: "The sole basis" for their case is status. They're seeking an injunction against needing to make a website for any same-sex couples.
Alito is going down a line about selectivity in making the determination about who is a public accommodation.
Alito quoting from Josh Blackman is really where we're at.
Sigh.
Sam Alito "joking" about Black children in "Ku Klux Klan outfits" is something that just happened in the year of our lord two thousand and twenty-two.
Alito: Is it OK to equate opposition to same-sex couples' marriages to interracial marriages?
Olson: "Yes, in how the law applies."
Colo's SG went on to give a really good answer about how the law must apply equally once you have a right, so, of course, Alito cut him off.
Gorsuch: "Good morning, Mr. Olson."
Olson: "Is it still morning?"
Mood.
Gorsuch is now drilling down on Olson with questions relying upon the fixed answer to Waggoner about this being message, not status.
Neil Gorsuch said that nondiscrimination law education requirements constitute a "re-education program."
From DOJ, Deputy SG Brian Fletcher is up.
Kagan correcting Roberts, albeit indirectly, about Rumsfeld v. FAIR would have been amusing if this weren't real life.
I love how much Sotomayor is a trial judge. LOVE IT.
Sotomayor: "What they're asking for is a status-based exception ..."
Gorsuch is basing this entire decision on the cleaned-up Waggoner answer.
Truly.
The bad answer from Waggoner would have tanked the case.
"There are certain rare contexts where conduct and status are inextricably intertwined," Fletcher says, and same-sex couples' marriages (and sexual orientation status) are one of them. He also cites the wearing of yarmulkes.
"A pretense of selectivity" isn't an out from public accommodations laws, Fletcher says.
They are seeking a "categorical rule based on status," Fletcher says.
Regardless of that, Fletcher says (after prompting from Kagan about Gorsuch saying relief is the court's call) she's not entitled to pre-enforcement relief here.
Kavanaugh suggesting that if Colorado/DOJ win here, speechwriters would be public accommodations required to write speeches for people they disagree with.
Fletcher explains why he doesn't think that's so, but that was a pretty big tell about Kavanaugh's thoughts here.
"Defining the 'what' by the 'who'" is the problem, Fletcher says, in an extremely succinct handling of the case.
Waggoner is up for rebuttal.
"... speech that's only incidental to speech ..."
Huh?
The case is submitted.
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