Quick thoughts on 303

I found a few interesting things in the questioning of Kristen Waggoner, counsel for petitioner in 303 Creative. (Mike Dorf has more about the "culture war" lines in the argument).

I

Although Waggoner repeatedly disavows it, 303 is arguing for First Amendment protection of implicit endorsement of an idea, rather than for the words spoken. Justices Sotomayor, Kagan, and Jackson peppered her with questions (real and hypothetical) about purely informational web sites--"Mike and Mark are getting married on this date at this place and these are the people in the bridal party." Even if that is 303's speech, it says nothing about marriage, same-sex marriage, or the righteousness of same-sex marriage. The First Amendment argument is not about the words being uttered on the web site, but that providing that information requires her to implicitly express her approval of same-sex marriage.

An exchange with Justice Barrett, designed to help Waggoner show that this is about speech rather than customer identity, drives the point home. Barrett offered two hypos of cis-het couples whose story (to be told on the web site) includes political statements--one that "we would have gotten married even if we were not cis-het because it doesn't matter" and the other "we were married to other people when we met at work, realized we were meant to be together, so we each got divorced six months later and now begin our lives together;" Waggoner said 303 would not do those web sites. Barrett's hypos involve objections the words and message written on the page--"everyone who finds their soul mate should get married, regardless of sexual orientation or gender identity." Most sites do not include such messages. The objection cannot be to the factual statement that Mark and Mike are getting married on June 10; it must be to the implicit endorsement in the artist announcing that fact. The follow-up should have been whether 303 would refuse to design a purely informational site--"Lily and Luke are getting married on this date at this place"--if she knew that Lily and Luke had divorced other people to be together. Would she consider that a similar implicit (and objectionable) endorsement of their marriage or their conduct?

The question becomes whether the freedom of speech protects against such implicit endorsements not grounded in the words themselves. The Court has pushed the complicity-in-sin idea through free exerise, but never through speech. What is the best way to read Hurley? One is that the parade organizers were compelled to send an implicit message of endorsement by including GLIB--having to include the group endorses the message that it is ok to be gay and Irish. Another is that GLIB itself sent an express message--possibilities and pride to be LGBT and Irish and with LGBT Irish people marching in the New York parade--that the parade was compelled to incorporate into its overall message. If Hurley means the latter, this case does not fit because Mike and Mark are not sending a message about LGBT rights by getting married--unless everything LGBT people do sends a message about LGBT rights.

II

I will admit to being annoyed by Waggoner's refusal to admit that, under her position, a web designers can refuse to do pages for mixed-race, mixed-religion, or (per Sotomayor's hypo) disabled couples. All entail the same endorsement. And the First Amendment does not turn on the "honorableness" of the message or distinguish between ideas we find odious and ideas we respect--if the seller of expressive products has a right not to sell where the product sends an objectionable implicit message, the nature of the message does not matter, only that the seller objects. Own it.

III

Waggoner repeatedly tried to generalize the principle--that it protects not only her Christian-web-designer-who-hates-same-sex-marriage, but other, left-leaning people, such as a "Democrat publicist" or "lesbian graphic designer." Dorf points to the adjective in the former as a culture-war dog whistle. I find the latter telling because it conflates identity with viewpoint--supposedly what she is not otherwise arguing. I doubt that most lesbian web designers object to opposite-sex marriage or would refuse to design page for a cis-het couple because it sends a message of approval for opposite-sex marriage. The refusal certainly would not be because of her LGBT status. That example--which she surely prepared, given how frequently she used--says a lot about how Waggoner sees the connection between identity and ideas.