For all the weird distortions that the Left has made of Justice Alito’s hypotheticals at oral argument in 303 Creative v. Elenis, there were two exchanges that should be genuinely alarming:

1. In his majority opinion in Obergefell v. Hodges, Justice Kennedy, in the course of inventing a constitutional right to same-sex marriage, acknowledged that opposition to same-sex marriage is very different from, say, racism:

Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.

Yesterday Justice Alito asked Colorado’s solicitor general Eric R. Olson:

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? [Transcript 80:23-81:3]

Olson provided this stunning response:

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 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 – [81:4-25]

Olson is correct that Kennedy’s follow-on sentence stated: “But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied.” But the issue in 303 Creative is what the First Amendment means, not what some “enacted” statute means. Kennedy’s assurance that the creation of a right to same-sex marriage would not “disparage[]” those who oppose it is reduced to empty blather if the First Amendment does not protect a right not to engage in compelled speech that celebrates same-sex marriage.

Again, it’s no answer to say that Lorie Smith could avoid the compulsion by deciding not to create wedding websites. If that were an answer, the parade organizers in Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995) would have lost, as they could have chosen not to hold a parade. The government cannot place an unconstitutional condition on the exercise of First Amendment rights.

If you’d like further evidence that opposition to same-sex marriage is not remotely like opposition to interracial marriage or any other form of racism, take it from Justice Ketanji Brown Jackson. As I documented in point 3 of this post, Jackson served on the board of a Christian school that, in the same statement in which it declared that “Christians should oppose racism … and all forms of sexual immorality, including adultery, homosexuality, and pornography,” celebrated marriage as “the uniting of one man and one woman in covenant commitment for a lifetime.”

Do supporters of Obergefell really want to begin eroding it?

2. Questions by the liberal justices suggested the dangerous notions that artists have reduced First Amendment rights when they are commissioned to produce works and, more generally, that any speaker’s First Amendment right not to engage in compelled speech hinges on whether that person is perceived by others to be the speaker.

Justice Jackson asked whether an artist is “typically sort of a – a freelance and they are selling their own messages,” whereas Lorie Smith “is an artist for hire essentially.” (51:1-12.) Kristen Waggoner, the attorney for 303 Creative and Lorie Smith, properly responded that “speech is speech whether it’s paid or pro bono.” (53:6-7.)

But Jackson, in an exchange later with Colorado’s lawyer Olson, posited a material distinction for First Amendment purposes between artists who are “making custom things based on their own views and opinions” and “artist[s] for hire” who have “people come to them and say here’s what I’d like you to make.” She wondered “whether what they [the artists for hire] make is their statement or the customer’s statement.” (106:5-14.) Rather than acknowledging that the statement is either the artist’s or the artist’s and customer’s together, Olson answered that there was nothing in the record on the very different question “whether anyone would attribute the speech about the couple on the wedding website to the designer as opposed to the couple.” (107:21-108:1.) Jackson went on to suggest that Lorie Smith’s First Amendment rights would depend on whether “it would be clear from, you know, a neutral observer or from the audience that having that website is their own expression.” (108:6-13.)

Justice Sotomayor had previously asked Waggoner how a wedding website that Smith creates “become[s] [her] message.” Waggoner soundly responded: “In the same way that it is the message of a ghostwriter who writes an anonymous press release or a book. It is still that writer’s speech.” (12:15-13:1.) Waggoner reiterated that point in her excellent closing:

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. [151:15-24]