Colorado tells SCOTUS its anti-discrimination law does not 'prohibit or compel' a business's speech

Christian business owner continues to challenge law to deny websites to same-sex couples
Racial Injustice Elijah McClain
Posted at 4:31 PM, Aug 12, 2022

DENVER – The Colorado Attorney General’s Officeis asking the U.S. Supreme Court to uphold the state’s anti-discrimination law, which is being challenged by a Christian business owner who says she wants to build wedding websites but also to note explicitly they won’t be built for same-sex couples.

The Supreme Court agreed in February to hear the case of Lorie Smith and 303 Creative after a district court denied her claims and the 10th Circuit Court of Appeals denied her request to overturn the district court ruling.

The district court said that she had not shown an injury-in-fact because no one had asked her to build a wedding website, and the circuit court said Colorado was allowed to protect “the dignity interests” of marginalized people under the Colorado Anti-Discrimination Act.

Smith first sued all the way back in September 2016, claiming that the anti-discrimination violated her ability to deny potential wedding website services to gay couples. She argued that she wanted to use the business “to celebrate and promote God’s design for marriage as an institution between one man and one woman” and claimed her inability to say so on her website violated her rights.

The Supreme Court will decide whether the law violates the First Amendment’s Free Speech Clause because it requires businesses to offer good and services to all customers.

The argument the attorney general’s office sent to the Supreme Court is that the law does not violate the Free Speech Clause because it only requires that a business that offers a product or service to the public sells it to all without regard. What it chooses to sell its up to the business owners, the office argued.

“[T]he Company must sell whatever it offers to customers regardless of their race, religion, sexual orientation, or other protected characteristic. The Company cannot refuse to sell its services, however limited, to a customer just because of who they are,” the attorney general’s office argues. “Both believers and atheists can choose to buy its websites with biblical quotes. Because the Act regulates sales, and not the products or services sold, it does not prohibit or compel the speech of any business.”

Further, the attorney general’s office argues that the exemptions the company is proposing to the law “would upend antidiscrimination law—and other laws too.”

“Each of their proposed exemptions departs from this Court’s doctrine and creates an enforcement regime riddled with uncertainty and inconsistency,” the brief says. “…Its proposed exemptions would leave customers unsure about which businesses will serve them in the public marketplace.”

The Colorado Attorney General’s Office says that under the act, customers have a right to whatever goods and services are sold to other customers, and that the proposals from Smith’s company would disregard Colorado’s interest.

The brief also argues that the law’s communications clause does not violate the First Amendment because “it does not prohibit the Company from expressing its views on marriage or any other issue.”

“[T]he Company’s proposed advertisements expressly deny service on an equal basis when they state that it will not create wedding websites for same-sex couples,” the attorney general’s office argues in the brief.

Smith, who claims she is an artist, is being represented by the Alliance Defending Freedom, which was also behind the Masterpiece Cakeshop Supreme Court case. Earlier this year, attorney Kristen Waggoner said, “The government shouldn’t weaponize the law to force a web designer to speak messages that violate her beliefs.”

But the attorney general’s office argument says the company’s proposed exemptions to the Colorado Anti -Discrimination Act do not “offer workable standards for determining who qualifies as an ‘artist,’ what a custom product is, or when a business’s message is ‘affected’ by a law.”

Attorney General Phil Weiser said in a news conference announcing the brief that the case differs from the Masterpiece case because Smith has not sold her product yet, and thus, his offices does not believe there is a First Amendment basis for what Smith and her attorneys are asking for.

He said the implications of the case go beyond people’s sexual orientation and could even apply to religion if the exemptions are granted and that it was “critical” the court not break from years of holding a line against discrimination.

“Advertisements that effectively say ‘straight couples only’ are not protected by the Court’s free speech precedents,” Weiser said. “Rather, the court has repeatedly affirmed the state’s ability to regulate ordinary sales discrimination and it should do so again in this case.”

A date for oral arguments has not been set, but Weiser said Solicitor General Eric Olson would argue the case on behalf of Colorado.