After two and a half hours of oral argument, with three attorneys and nine justices slicing and dicing Supreme Court precedent and tackling every hypothetical question anyone could imagine (and there were some doozies), Colorado website designer Lorie Smith’s attorney, Kristen Waggoner of Alliance Defending Freedom (ADF), was afforded the last word on behalf of her client.

And she was eloquent.

Ed Whelan, attorney and Distinguished Senior Fellow and Antonin Scalia Chair in Constitutional Studies at the Ethics and Public Policy Center, said her rebuttal “was as clear and forceful as any I can recall.” That’s high praise from the former Scalia law clerk.

After first addressing some of the arguments raised by attorneys for the state of Colorado and the United States during their turns at the podium, Waggoner, the recently appointed president and CEO of ADF, boiled the case down to some key First Amendment truths that anyone can understand.

From the transcript:

“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 Court has held are honorable and decent, promises that it has provided that the government would not mandate orthodoxy.

“Cultural whims 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, 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.”

A decision is expected in 303 Creative v. Elenis by the end of June.


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Photo from ADF.