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Supreme Court oral arguments set for Dec. 5 in Colorado anti-discrimination case

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Posted at 12:16 PM, Oct 18, 2022

DENVER — Oral arguments are set for Dec. 5 in the case of a Christian business owner challenging Colorado’s anti-discrimination law who says she wants to build wedding websites — but not for same-sex couples.

The U.S. Supreme Court on Tuesday released its oral argument calendar for December, which sets oral arguments for 303 Creative LLC v. Elenis for the first Monday in December.

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 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.

In August, the Colorado Attorney General’s Office sent its brief to the nation’s high court, arguing Colorado’s law does not violate the Free Speech Clause because it only requires a business that offers a product or service to the public to sell it to everyone without regard. What it chooses to sell is up to the business owners, the attorney general’s office argued.

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.”

Solicitor General Eric Olson will argue the case on behalf of Colorado in front of the Supreme Court, Attorney General Phil Weiser said earlier this year.

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.”

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.”

Several municipalities and organizations have submitted amicus briefs in support of Colorado’s law and argument, including Denver, Boulder County, the American Civil Liberties Union (ACLU) and ACLU of Colorado, and the American Bar Association.