Supporters of web designer Lorie Smith and counter-protesters demonstrate in front of the U.S. Supreme Court building on Dec. 5, 2022.
Andrew Harnik/AP Photo

Waggoner disagreed, contending that the designer should be free to choose which clients to provide or not provide the service for. The lawyer seized on another political example to argue that a singer or musician shouldn’t be forced to put on a more-or-less identical performance if he or she doesn’t agree with the message the audience might take away.

“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.

Hypotheticals gone wild

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.

The dizzying series of invented scenarios, layered with modifications by other justices, seemed to spin out of control on several occasions.

Justice Ketanji Brown Jackson, who took Breyer’s seat, conceived of a mall photographer with racist tendencies who was eager to photograph white children on Santa’s lap but not those of other races.

“This business wants to express its own view of nostalgia about Christmases past by reproducing classic 1940s and 1950s Santa scenes,” Jackson said.

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 Samuel Alito later picked up on the mall Santa scenario, inadvertently going viral with a bizarre hypothetical involving an African-American St. Nick and the KKK.

“If there’s a Black Santa at the other end of the mall and he doesn’t want to have his picture taken with a child who’s dressed up in a Ku Klux Klan outfit, that Black Santa has to do that?” Alito asked.

Colorado Solicitor General Eric Olson said the Black Santa wouldn’t have to, because he’s under no obligation to accept children in any particular outfits for photos.

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.

Alito said part of that hypothetical struck him as too remote to be of much concern.

“You do see a lot of black children in Ku Klux Klan outfits, right? … All the time,” he joked.

Is this test case not ready for prime time?

Part of what sent the justices running to hypotheticals is that the case in front of them is rather sterile. Smith hasn’t actually refused service to any same-sex couple. In fact, she’s never designed a wedding website for anyone. The entire dispute is based on her stated intention to broaden her business to offer sites for impending nuptials and her fear that the state of Colorado will take action against her if she does so while publicly excluding same-sex couples.

After Smith filed suit to head off such action, both sides in the case agreed on certain facts, including a mock-up of a website she planned to offer. Notwithstanding the fact that she says she intends to make a custom site for each couple.

Some justices found the factual foundation for the case unsatisfying, because Smith’s lawyers acknowledge that she could not legally deny same-sex couples a plug-and-play website, so precisely what message she would be conveying in a custom one not yet designed is unclear.

Lorie Smith, the owner a website design company in Colorado, speaks to reporters outside of the U.S. Supreme Court building on Dec. 5, 2022.