The Supreme Court’s latest foray into the clash between the rights of LGBTQ people and religiously devout businesspeople proved to be both colorful and contentious. Here’s POLITICO’s look at the most notable aspects of Monday’s arguments:
Supporters of web designer Lorie Smith and counter-protesters demonstrate in front of the U.S. Supreme Court building on Dec. 5, 2022. | Anna Moneymaker/Getty ImagesThe Supreme Court’s latest foray into the clash between the rights of LGBTQ people and religiously devout businesspeople proved to be both colorful and contentious.
“Under Colorado’s theory, jurisdictions could force a Democrat publicist to write a Republican’s press release,” Smith’s attorney, Kristen Waggoner, said. “No one should be compelled to speak a message.” “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,” Waggoner said.The Supreme Court may have lost its king of arcane hypotheticals with the resignation of Justice Stephen Breyer last term, but the justices more than made up for his absence Monday.
Waggoner gave a confusing answer about whether such conduct would be protected by the argument she is making. “This Court has protected vile, awful, reprehensible, violent speech in the past. ... That may be an edge case, but this is not,” she insisted. Justice Elena Kagan chimed in to say that the photographer choosing outfits would be acceptable under Colorado law, but refusing to serve someone based on his or her race would be a different matter. “That would be the same Ku Klux Klan outfit regardless whether the child was black or white or any other characteristic,” she said.“You do see a lot of black children in Ku Klux Klan outfits, right? … All the time,” he joked.
Such concerns may have prompted the very first question of the arguments Monday, when Justice Clarence Thomas asked Waggoner: “Whether or not this, your case, is ripe?” “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] we are not foreclosing the possibility that there is narrow relief in future cases with concrete facts,” Fletcher said.Sometimes justices are invested in particular cases that surface during oral arguments because they authored the majority opinion or dissented from it.
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