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Wedding Cake Lawyer Back to Supreme Court in New Same-Sex Case

Dec. 5, 2022, 9:45 AM

Kristen Waggoner is on a bit of a winning streak at the nation’s highest court.

The president, CEO, and general counsel of the conservative Christian legal advocacy group Alliance Defending Freedom (ADF) has gotten two favorable rulings from the US Supreme Court in cases she’s argued. One was in a dispute over a baker’s refusal to make a wedding cake for a gay couple in 2018 and another involving religious speech on a college campus in 2021. She’s headed back to the lectern on Monday and there’s a good chance she’ll win again.

This time around Waggoner, a lightning rod for the left whose appearance at Yale sparked protests earlier this year, is set to argue another potential blockbuster. While the dispute, 303 Creative LLC v. Elenis, centers on a Christian website designer’s refusal to make a website for a gay couple’s wedding, it’s not a case about religious rights. It’s a case about freedom of speech that could broadly change the meaning of the First Amendment, some legal scholars say.

Waggoner argues Colorado’s antidiscrimination laws unconstitutionally force her client, Lorie Smith, to create custom websites celebrating same-sex marriage and to speak a message that violates her deeply held beliefs.

The case is strikingly similar to the baker’s case Waggoner argued and the high court decided in 2018. In a narrow ruling in favor of her client, the Supreme Court side-stepped the larger question of whether state public accommodation laws violate free speech rights. It’s an open question she’s hoping the website designer’s case will resolve.

Waggoner told Bloomberg Law these cases aren’t about whether Obergefell v. Hodges, the Supreme Court’s 2015 decision legalizing same-sex marriage, was good or bad. “They’re about whether the government can use its power to force an individual to embrace that decision and speak that message,” she said.

‘Protecting Freedom’

Waggoner, 50, joined ADF in 2013 after working in private practice for a little over 16 years at Ellis, Li & McKinstry PLLC, a Seattle-based firm.

While at the firm, representing clients like the pharmacy and two pharmacists challenging state rules requiring them to dispense emergency contraceptives against their religious beliefs “sparked something in me to say I wanted to be involved full-time in protecting freedom,” she said.

In October, Waggoner added the president and CEO titles at ADF, which she said now has about 450 employees and more than $100 million in revenue.

Douglas Laycock, a professor of constitutional law and religious studies at the University of Virginia, said Waggoner and ADF do good work on religious liberty, largely on behalf of conservative Christians, but she’s had some high-profile losses, too.

He noted the case she brought on behalf of Barronelle Stutzman, the owner of the florist shop Arlene’s Flowers who was sued by the state of Washington and ordered to pay penalties for refusing to create custom floral arrangements for a same-sex ceremony. ADF appealed to the Supreme Court, arguing the state was violating Stutzman’s First Amendment rights to free exercise of religion and free speech. The court refused to hear the case in 2021.

The website designer in the case Waggoner is arguing Monday also alleged a violation of free exercise rights but the court only agreed to review whether Colorado’s antidiscrimination laws violate free speech.

‘Cancel Culture’

Opponents say Waggoner is pushing to change the meaning of the First Amendment’s free speech guarantee into a license to discriminate.

“The claim is if I have an opposition to same-sex marriage, then as a commercial business I can say I’m not going to provide service and the claims go well beyond the context of same-sex marriage,” said David Gans, director of the Constitutional Accountability Center’s Human Rights, Civil Rights, and Citizenship Program. “The same principles would apply to someone who didn’t want to bake a cake for an interracial marriage.”

Gans called Waggoner’s arguments dangerous.

“They don’t actually vindicate First Amendment values but pervert the Constitution by empowering businesses to discriminate in a way that runs up against a very long tradition of civil rights laws to ensure access to goods and services are available to all without discrimination,” he said.

Waggoner’s work has made her a target on the left. While speaking on a panel about free speech at Yale University in March, she was drowned out by student protesters, who shouted, screamed, and pounded on the classroom walls as she tried to speak. One protester held a sign that said, “Be less mean,” according to a photo of the event pictured on ADF’s website.

The protest is partly what led Judge James Ho of the US Court of Appeals for the Fifth Circuit to ban future Yale law graduates from his clerkships and encourage other judges to join him to push back against what he called a cancel culture at the school.

The case Waggoner’s about to argue, she said, is exemplar of how activists and officials are misusing laws to punish, silence, and ruin those who hold certain beliefs about human sexuality.

“It’s wrong to allow the law to be weaponized to become an arm of cancel culture,” she said.

To contact the reporter on this story: Lydia Wheeler in Washington at lwheeler@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com