Supporters of web designer Lorie Smith and counter-protesters demonstrate in front of the U.S. Supreme Court building on Dec. 5, 2022.
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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?”

Smith’s lawyer unsurprisingly said it was, but Kagan said the precise message the state would be forcing Smith to convey was important but remained murky in the case’s current posture.

“It really depends on the facts and on what exactly Ms. Smith is being asked or compelled to do — and that matters,” Kagan said.

Deputy Solicitor General Brian Fletcher urged the court to turn down the case on that basis, but leave the door open to Smith or someone else to return to the court after being the victim of some kind of enforcement action based on specific words and messages.

“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.

One precedent hit Kagan close to home

Sometimes justices are invested in particular cases that surface during oral arguments because they authored the majority opinion or dissented from it. But only rarely do the cases that come up in the Supreme Court’s rarified courtroom involve the justices themselves.

Kagan found herself in that unusual position Monday after Chief Justice John Roberts said he saw little similarity between the web designer’s case and a unanimous 2006 ruling where the high court rejected law schools’ claims that a federal law forcing them to accommodate military recruiters violated the schools’ free-speech rights. The schools contended that they shouldn’t have to allow the recruiters in because, at the time, the military barred gay men and lesbians from serving.

Roberts said the only thing the government compelled in the law schools’ case was access to “empty rooms.” Kagan, who was dean of Harvard Law School at that time and helped lead the charge against the policy, looked askance at the reference but left it to Fletcher to handle most of the push-back.

“That’s not correct,” the Justice Department attorney said in an unusually blunt rebuttal from an arguing attorney. Fletcher noted that the schools were also compelled to give military recruiters access to emails, newsletters and other notices — all forms of speech — on par with that afforded to other employers recruiting on campus. “The law schools also had sincere moral objections to making those statements to facilitate recruiting that they found deeply objectionable,” he said.

Kagan chimed in later, suggesting that under the court’s precedent, telling invitees where a wedding is going to be held isn’t much different than telling students where the military folks are coming on campus — speech the court ruled could be compelled in the 2006 case.

“Here is where the military recruiters are going to be is very similar to here is where the wedding is going to take place, which is what standard websites do,” she said.

Justices joust over dating apps

Arguments can also provide an opportunity for justices to learn a thing or two and maybe venture outside their comfort zone, but only so far.

Justice Samuel Alito raised a hypothetical Monday about objections to intermarriage among Jewish people and whether that would be a sufficient basis for a website not to accept business from a couple of mixed religious backgrounds. Olson said it would not, but that the website wouldn’t have to change any messages against intermarriage to satisfy the state’s laws.

Alito then launched into another example about an unmarried customer asking a photographer to take a photo to be featured on Jdate.com.

“It’s a dating service, I gather, for Jewish people,” Alito said.

“It is,” Kagan replied, prompting laughter from the courtroom.

“Maybe Justice Kagan will also be familiar with the next website I’m going to mention,” Alito continued, raising the example of a Jewish photographer being asked to take a photo for someone’s profile on Ashleymadison.com — a site that openly caters to relationships that involve financial support.

That prompted more uproarious laughter from the courtroom, even as Alito gamely backpedaled about his intimation that Kagan would have insights on the topic. “I’m not suggesting that. I mean, she knows a lot of things,” he said.