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Colorado tells SCOTUS anti-discrimination law 'regulates business sales, not speech'


Aug 12, 2022

By Helen Lewis

It’s just over a year since a web designer who wanted to refuse to create wedding websites for same-sex couples lost her appeal against Colorado's anti-discrimination law — but the legal fight’s far from over.

The U.S. Court of Appeals for the 10th Circuit ruled against Lorie Smith’s one-woman design business in July of 2021. In February this year, the U.S. Supreme Court agreed to hear her case, but said it would only look at the free speech implications of the Colorado Anti-Discrimination Act.

Today, the State of Colorado filed a brief with the Supreme Court arguing that the state’s anti-discrimination law regulates business sales, not speech.

An Aug. 12 news release from Colorado Attorney General Phil Weiser’s Office says Smith’s business “is asking the U.S. Supreme Court to allow it to turn away same-sex couples and not offer them the same website design services it would offer opposite-sex couples.”

In the brief, the AG’s office says that the Colorado Anti-Discrimination Act simply prevents sales discrimination. What a business chooses to sell to the public remains entirely up to the business — but once a business offers something to the public, “the law ensures it must offer it to any customer regardless of their race, religion, sexual orientation, or other protected characteristic.”

Protected characteristics are: disability, race, creed, color, sex, sexual orientation (including transgender status), marital status, family status, religion, national origin, or ancestry.

The AG’s release explains Colorado is asking the Supreme Court to uphold the state’s “long-standing civil rights law that requires public businesses to serve all customers and prohibit denials of service because of a customer’s religion, sexual orientation, race, sex, disability, or other characteristics protected under the law.”

In her unsuccessful appeal last year, Smith was represented by legal advocacy group Alliance Defending Freedom, founded by leaders of the Christian right. The group — which in 2018 defended Colorado baker Jack Phillips in the U.S. Supreme Court after he refused to bake a cake for two men who were to be married — argued the law forces Smith to violate her First Amendment rights.

Smith's business did not offer a wedding website service yet, but she wanted to guarantee her right to not have to offer her services to same-sex couples and to put a statement on her website to that effect.

Today’s release from Weiser’s office says in part:

“The question before the court is whether a public accommodations law violates the First Amendment’s Free Speech Clause when it requires a business to offer its goods and services — including customized goods and services — to all customers regardless of protected characteristics. The design business in this case does not yet offer wedding websites and has not turned away any customer. The business would like to offer wedding website services, but first wants to announce that it will not design a website for ‘same-sex marriages or any other marriage that is not between one man and one woman.’ The business claims the website services it offers are expressive and asks the Court to exempt it from Colorado’s antidiscrimination law because it believes selling wedding websites to same-sex couples supports same-sex marriage, which it objects to.

“The federal district court and the 10th Circuit Court of Appeals in Denver both ruled that the state’s law is constitutional.”

Weiser explained that public accommodations laws in Colorado — and across the country — protect equal access to goods and services and the dignity of all customers. “Colorado’s law regulates ordinary business sales. The mere act of selling something to all on equal terms is not expressive conduct, and the law does not compel businesses to speak or stay silent,” he explained. “Advertisements that effectively say ‘straight couples only’ are not protected by the Court’s free speech precedents. Rather, the Court has repeatedly affirmed the state’s ability to regulate ordinary sales discrimination and it should do so again in this case.”

The case is No. 21-476, 303 Creative LLC v. Aubrey Elenis, et al. The court has not yet scheduled oral argument in the case.


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