On June 30, the Supreme Court announced the 15th win for Alliance Defending Freedom, the law firm where Kristen Waggoner presides as CEO, president, and general counsel. Though few know Waggoner’s name, the cases she’s argued reverberate for days in the world of politics, law, and media: 303 Creative v. Elenis and, perhaps even more notably, the 2017 case Masterpiece Cakeshop v. Colorado Civil Rights Commission.
Though left-wing activists and media figures tried to paint 303 Creative as a case essentially about gay rights, the Supreme Court wasn’t fooled. The case centered on whether a website designer could be compelled to offer creative expression that clashed with her religious beliefs according to Colorado’s punitive anti-discrimination law. As Justice Neil Gorsuch wrote in the majority opinion, “The opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong. … The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands.”
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Lorie Smith is a web designer who believed Colorado’s public accommodation law violated her free speech rights by requiring her to create websites celebrating same-sex marriages. In a 6-3 ruling, the high court agreed.
The ruling, the 50-year-old Waggoner told the Washington Examiner, equally protects “the person who identifies as LGBT [and] the website designer. It protects the pro-abortion photographer and the African American cross sculptor. If we want to protect our own rights, we have to protect those that we disagree with.”
The case has been controversial, not unlike Masterpiece, in which a Christian baker was put in a similar position, and it created even more of a fuss following oral arguments in which several justices offered hypotheticals on everything from the Ku Klux Klan to a segregated Santa Claus photography session.
“So many of the hypotheticals that were posed had absolutely nothing to do with the legal principle at stake in the case,” Waggoner said. “And while the court’s role properly is to anticipate how ruling might apply in future instances … some of those hypotheticals were quite bizarre because, again, public accommodation laws and the First Amendment had peacefully coexisted for many, many years.”
Public accommodation laws have been around for decades, so why have there been so many high-profile cases in the last few years pitting these laws against freedom of speech?
Waggoner chalks it up to extreme activists who would prefer to silence speech that they disagree with rather than follow the “historically American remedy,” which would be “to counter bad ideas” with “hotly contested ideas and to persuade.”
Waggoner saw this firsthand when she showed up at Yale Law School in March 2022, along with Monica Miller, senior counsel at the American Humanist Association. The two women were invited by the Yale Federalist Society specifically to discuss free speech. Approximately 120 law students showed up to the event and shouted down Waggoner, pounding on the walls, chanting, and disrupting other classes. Eventually, the police were called, and both Waggoner and Miller had to be whisked away via patrol car. Waggoner later told Fox News, “This wasn’t a protest. This was physical intimidation and bullying that took place.”
A second Yale appearance, in January 2023, went more smoothly for Waggoner, and the two engagements stand as examples of the choice facing people who encounter opposing opinions.
“What we have seen is a kind of national coordinated movement by extreme activists to try to silence speech that they disagree with on law school campuses,” she said. “And it’s not just directed at myself or ADF but other conservative and religious speakers as well. And I think that what it does is underscore the importance of our law schools teaching students that the best way to social progress is through debate. And we have to be willing to tolerate people and ideas that we disagree with rather than to silence, ruin, and even threaten physically and verbally.”
Yale isn’t the only place that vacillates in its reception of Waggoner and the ADF. Much of the media struggle to describe the cases that make it to the Supreme Court, or the rulings, accurately. Whether driven by ignorance or malice, much of the coverage of the cases paints a patently false picture.
A few samples following the ruling in 303 Creative: Justice Sonia Sotomayor wrote in her dissent, “Today is a sad day in American constitutional law and in the lives of LGBT people.”
The Associated Press tweeted, “A Colorado web designer who the U.S. Supreme Court ruled could refuse to make a wedding website for gay couples had cited a request from a man who says he never asked to work with her.”
A Slate headline following the ruling read, “Supreme Court Decision in 303 Creative Strips LGBTQ Couples and Families of their Dignity.” A New York Times opinion piece said, “The Supreme Court Has Opened the Door to Discrimination.” Some of these absurd headlines could stem from the fact that for years, the Southern Poverty Law Center has dubbed ADF a “hate group.” Although the SPLC long ago strayed from its original purpose as a legitimate civil rights outfit, it has retained its standing with reporters who seek to launder their editorializing through an outside source.
“I can only speak from my own experience,” Waggoner said. “My experience is that litigation is a very demanding vocation. It’s not something that you leave at home, and it’s never something that you’re doing 40 hours a week. And if you’re doing it correctly, I think you bear the weight and the burden of your clients and their defense.”
Waggoner’s career trajectory has already surprised her. While earning her law degree from Regent University, Waggoner thought she’d do public interest law. She went into private practice and practiced at a firm in Seattle for over 16 years before she went to ADF.
There, Waggoner said, two specific cases, one that almost made it to the Supreme Court and the other a custody case, helped her understand litigation as “we can use our legal skills to protect people and to help people flourish and to understand that it’s a real privilege to be able to seek justice.” These cases in private practice also helped develop “a grit” that would later prove useful when litigating cases that continue on for years at a time.
What’s kept the mother of three grounded is her priorities, the first being her family. She attributes a lot of her success to her spouse, whom she called “truly a partner” who makes her vocation “manageable and fulfilling.”
While Waggoner acknowledged there was a bit of a juggling act between marriage, motherhood, and litigation, she was quick to point out the positive side. She has enjoyed teaching her children a lot of lessons in the process about not just her work but said family-life-work balance and “what it means to be complementary sexes and equal.”
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ADF and Waggoner will likely continue to face personal and professional attacks in the years to come and have their monumental wins mischaracterized and labeled as pathways to bigotry. But Waggoner isn’t deterred. She sees the First Amendment as something worth fighting for.
“I would encourage all Americans to stand up for the rights but also the rights of others,” she said. “Too frequently, we see others who are facing these attacks and they’re caught in the crosshairs and we cheer for them on the sidelines or we send them a private note, but we refuse to speak out on their behalf in the public square. I think that lack of courage is costing us in this moment. … We’re now the last Western country in the world that’s resisting these types of censorship laws, so it’s not the job of the lawyer alone to do that. It’s the job of the American people.”
Nicole Russell is a journalist and mother of four who is the opinion columnist at the Fort Worth Star-Telegram. She previously lived outside Washington, D.C., and is a Minnesota native.
