The U.S. Supreme Court ruled in favor of a Colorado graphic designer on Friday in what Alliance Defending Freedom is calling a “landmark victory for free speech.” But critics were quick to claim that the ruling lacked legitimacy — and that ADF senior counsel Erin Hawley, who litigated 303 Creative LLC v. Elenis, is somehow at fault.
Hawley suggested to The Daily Signal in a Wednesday phone interview that leftist activists are “grasping at straws” as they grapple with the court’s ruling. A number of recent high-profile cases have left liberal activists furious and calling for an expansion of the number of seats on the court.
Graphic designer Lorie Smith, a Christian who believes marriage should be between a man and a woman, wants to create wedding websites. But under Colorado’s nondiscrimination laws, she would have been compelled to do so for same-sex weddings. Smith had asked the court to say that Colorado’s anti-discrimination law violated her rights
One day before the Supreme Court’s Friday ruling, The New Republic published a report insinuating that Smith, who said she received a wedding website request in September 2016 from two men, was lying. A man identified as “Stewart” allegedly told the outlet that he never made the request and has been “happily married to a woman for the last 15 years.”
That request was not the basis for the lawsuit that Smith had preemptively filed. And Smith’s attorneys say that she is being purposefully slandered.
ADF President Kristen Waggoner called the report a “desperate, bad-faith attempt to undermine the ruling that protects speech for everyone,” emphasizing that Smith did receive a request from a third party through her website, and “whether it was a troll or genuine, she doesn’t know, because had she followed up and declined, Colorado threatened she’d be breaking the law.”
“Colorado prosecuted Jack Phillips a second time when he followed up on a trolling request after winning at [the Supreme Court],” Waggoner added. “And Lorie has received dozens of similar requests, but that’s factually and legally IRRELEVANT anyway, which is why [the court] didn’t rely on it. You don’t have to wait to face fines and jail time before challenging an unjust law.”
Hawley also noted that Colorado has aggressively enforced its anti-discrimination law “against everyone, including Jack Phillips, time and time again.”
“And they admitted during the lawsuit that if Lorie expanded her business to wedding websites, that they would go after her,” she said, adding:
The court noted the historic, aggressive enforcement against people like Jack Phillips, and found that that was enough for what’s called a credible threat of enforcement. So, the idea that this case is made up because of this request is just absurd. It is not relevant to the legal standard. It’s really grasping at straws. Really just an attempt to discredit the decision and her attorneys.
But leftist commentators critical of Hawley and her husband, a Republican U.S. senator representing Missouri, were quick to suggest that the news made the case illegitimate, and that Erin Hawley was somehow behind it.
“Zero surprise that it was insurrection supporter Josh Hawley’s wife, Erin Hawley, who litigated the FAKE 303 Creative case in front of the Supreme Court,” tweeted Kaivan Shroff, a senior adviser at the Institute for Education, who worked on Hillary Clinton’s 2016 presidential campaign. “She’s as dishonest as her husband. The Extreme Court used the totally made-up case to illegitimately strip away LGBT+ rights.”
Another Twitter user asked in a viral tweet: “Is anyone at all surprised that fist pumper Josh Hawley’s wife, Erin Hawley, brought the FAKE 303 Creative case in front of the Supreme Court? They cloak themselves in Christianity, while they lie, cheat & subvert the rule of law in order to achieve their hateful agendas. Sick.”
The ADF senior counsel suggested to The Daily Signal that her critics were directing vitriol toward her because of her last name—”which is a bit ironic,” she added.
“For a long time in this country, we have recognized that women are capable of being attorneys, women are capable of representing clients and standing on their own two feet,” she explained, pointing to a Newsweek article titled “Josh Hawley’s Wife Faces Calls to Be Sanctioned Over Supreme Court Case.”
“If we’re going to talk about feminism or any of the things that the Left seems to trumpet, I think that article really goes against all of them,” she said. “It suggests that the important facts about a woman are who she’s married to. And I think we have moved past that.”
Pressed more on this point, she added with a laugh: “It’s absurd. I’m very, very proud to be Josh Hawley’s wife. But I’m also a lawyer who represents clients, and I’m very proud of our victory here in 303 Creative.”
In Friday’s Supreme Court ruling, the justices voted 6-3, with Chief Justice John Roberts and Justices Neil Gorsuch, Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett ruling that the government could not compel speech. Justice Sonia Sotomayor wrote the dissent, joined by Justices Elena Kagan and Ketanji Brown Jackson.
“The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees,” Gorsuch wrote for the majority.
Hawley suggested that the clarity of the Supreme Court decision may have prompted activists to “make excuses or to find some way to discredit the case or the court or ADF.”
“The Supreme Court was really clear that the government is not allowed to force people to speak something they don’t believe based on a nondiscrimination law,” Hawley emphasized. “So, even if the government has an important interest, that interest doesn’t allow them to compel someone to speak contrary to their most deeply held beliefs.”
“I think the breadth and clarity of the whole thing, the fact that it was 6/3, the fact that the court was quite clear that this is speech and the government doesn’t get to compel speech … I think some people were maybe expecting a more narrow decision or the court to be more fractured.”
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