Kristen Waggoner on 303 Creative v. Elenis
Editor’s note: The following piece is an adaptation of opening remarks made by ADF CEO, President, and General Counsel Kristen Waggoner at ADF’s American Culture on Appeal Event on Oct. 25, 2022.
I think that however you define marriage, my hope is that tonight, you will come out of this time together with support for Lorie and hoping that the U.S. Supreme Court will protect her right to free speech.
In terms of why that would be, it’s because that freedom protects everyone—not just Lorie, and not just those who are on one particular side of a debate, or even those who happen to agree with the government’s position at a particular time on a particular issue with a particular administration. I think we’re living in a world where we don’t want to rely on the government alone to decide what we can and can’t say in this moment.
Frederick Douglass said that “Liberty is meaningless where the right to utter one’s thoughts and opinions has ceased to exist. That, of all rights, is the dread of tyrants. It is the right which they first of all strike down. They know its power.”
In 303 Creative, the Supreme Court will decide how meaningful that promise that Douglass talked about is in today’s environment. And at Alliance Defending Freedom, I want to make it very clear tonight that we support the right of every artist and every American to be able to speak freely regardless of how they identify, whether they’re Democrat or Republican, whether they’re Muslim or they’re atheist.
We have the privilege of representing Lorie, who wants to share her beliefs about marriage, but all of our beliefs are at issue in these kinds of cases. And at the outset, I just want to stress two significant, over-arching points that I think sometimes we forget in these discussions.
The first is that this right to free speech doesn’t come from the government. We’re not “lucky to have it.” It is a pre-political and inalienable right that we all benefit from that’s rooted in our human dignity—the dignity that we all have no matter our viewpoints.
The second thing that I think sometimes gets lost or forgotten or may not be known is that many countries in the world have free speech protections in their written constitutions. Their governments provide similar liberties that we have when it comes to speaking freely, but activists and government officials have steadily undermined those rights, and they’ve lost them. What you may not know right now is that we’re the last Western country in the world that continues to have robust free speech protection and that has resisted government compulsion, government censorship laws, like what is being seen right now throughout Europe, Canada, Australia, and New Zealand.
Our First Amendment serves as a citadel against the tyranny and the authoritarianism that Douglass feared. It also gives us the right, and assures us of the right, to be able to continue to speak freely. But it’s also essential to even have self-government. It’s essential to have social progress. It is essential to be able to have a pluralistic society where we live peacefully, and we can share what we believe in environments like this.
The promise of free speech also anchors our other rights. So what are those rights that it anchors? Well, certainly our right to associate, our right to express and petition the government with our grievances, the freedom of our press. Also, our religious freedom, and our right to raise our children consistent with the values that inspire our lives—we all want that right. And free speech assures us of the ability to be able to think freely and to speak freely, so it’s critical.
So tonight, let me be clear: I believe that how the United States Supreme Court rules in 303 Creative will affect every single one of us, and that’s why people who support same-sex marriage support Lorie’s case.
I also want to just point out for those of you that haven’t met Lorie, Lorie is an artist in Colorado. She’s a website designer, and she left the corporate world and the government world so that she could promote causes that are close to her heart. She loves to support animal rescue, she loves to help those who are homeless, and to eliminate homelessness is one of her goals. And she loves to support children with disabilities in her work.
And yes, she wants to be able to promote her faith’s view that marriage is between a man and a woman. Something else that I think is important to understand is that she wants to be able to expand that portfolio to create custom websites promoting that view. And in so doing, promoting custom websites, Colorado has told her she’d be violating the law, and they’re preventing her from doing that. Because of this censorship, and frankly because she’s had a front row seat to how Colorado continues to treat Jack Phillips, Lorie challenged this law.
So in closing, I just want to mention two facts that you may not be aware of about the case, because it’s something that makes our case a little bit unusual. And that is that the parties in the case, Colorado and Lorie, have agreed to a written set of facts. We call those stipulations for the non-lawyers, and there are a number of facts that the parties agreed to.
The first, most significant fact would be that every website Lorie creates is custom. It’s made for that couple to celebrate their unique story, and it is pure speech. It also has a celebratory message—Colorado has conceded that, as well. So there’s a message in every website.
A second fact that’s important for you to know that’s already been agreed to by the parties is that Lorie serves people from all walks of life. She has clients who identify as LGBT. She has clients who don’t. She has Democrats as clients and Republicans, and Christians and non-Christians. What Lorie bases her decisions on in what projects to engage and what messages to express is about what the message is, not who is asking it.
Under Colorado’s theory, it is a scary, new, brave world. It’s one where we give the government the authority to tell us what we can and can’t say. And frankly, right now I’m not willing to do that, and I don’t think that you should be, either. And I don’t think that the First Amendment allows it.
So I’ll just close with the idea that the incredible legacy that we have found in the First Amendment says that we get to speak our minds, that we don’t lose our Constitutional rights when we enter the public square, and that when we do speak our minds, it really doesn’t matter how much the government, or my neighbor, agrees me. And I think that’s a legacy worth keeping. So we are standing not just for Lorie, but for every artist and every American, and even those in the room tonight who don’t agree with us when they leave here. Thank you.