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303 Creative, LLC v. Elenis.

No. 19-1413. D.Colo. Judge Briscoe. Colorado Anti-Discrimination Act—First Amendment Free Speech—First Amendment Free Exercise Clause—Due Process—Vagueness and Overbreadth.

July 26, 2021

303 Creative, LLC is a for-profit graphic and website design company. Smith is its founder and sole member-owner. 303 Creative and Smith (collectively, appellants) are willing to provide services to all people regardless of sexual orientation, but Smith believes that same-sex marriage conflicts with God’s will. Appellants intend to offer wedding-related services in the future that celebrate opposite sex marriages but intend to refuse to create similar websites that celebrate same-sex marriages. Smith also intends to post a pronouncement of her beliefs and intention on 303 Creative’s website (proposed statement). Appellants brought a pre-enforcement challenge to the Colorado Anti-Discrimination Act (CADA) alleging a variety of constitutional violations, including that CADA’s accommodation clause and communication clause violate the First Amendment’s free speech and free exercise clauses and the Fourteenth Amendment’s due process clause. Colorado moved to dismiss. The parties agreed that the matter could be resolved through summary judgment, and the district court granted summary judgment in favor of Colorado.

Appellants argued on appeal that the district court erred in determining that they lacked standing to challenge the accommodation clause. The Tenth Circuit concluded that appellants had standing to challenge both the communication clause and the accommodation clause by demonstrating an injury in fact in showing an intent to provide graphic and web design services to the public in a manner that exposed them to CADA liability and a credible threat that Colorado would prosecute them under CADA. For the same reason, appellants established that the case is ripe.

Appellants also argued that the accommodation clause violates their free speech rights. CADA restricts a public accommodation’s ability to refuse to provide services based on a customer’s identity. Under CADA’s accommodation clause, a public accommodation may not refuse to an individual or group the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation because of sexual orientation. CADA’s accommodation clause compels appellants to create speech that celebrates same-sex marriages, so it works as a content-based restriction and must therefore satisfy strict scrutiny. Accordingly, Colorado must show a compelling interest, and the accommodation clause must be narrowly tailored to satisfy that interest. Here, Colorado has a compelling interest in protecting both the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace, and the accommodation clause is narrowly tailored to the state’s interest in ensuring equal access to publicly available goods and services. Thus, the clause survives strict scrutiny.

Appellants also asserted that the communication clause unconstitutionally abridges their free speech rights regarding the proposed statement. Under CADA’s communication clause, a public accommodation may not publish any communication that indicates that the full and equal enjoyment of its services will be refused or that an individual’s patronage is unwelcome, objectionable, unacceptable, or undesirable because of sexual orientation. Similar to the accommodation clause, the communication clause does not violate appellants’ free speech rights because Colorado may prohibit speech that promotes unlawful activity, including unlawful discrimination. The proposed statement expresses an intent to deny services based on sexual orientation, which CADA forbids and the First Amendment does not protect.

Appellants also contended that the district court erred in rejecting the free exercise challenges to the communication clause as to the proposed statement. As stated above, the communication clause makes it unlawful for a public accommodation to publish a statement indicating that a service will be refused because of sexual orientation, and Colorado may prohibit speech that promotes unlawful activity, including unlawful discrimination. The proposed statement expresses an intent to deny services based on sexual orientation and is not protected by the First Amendment.

Appellants further contended that the district court erred in rejecting their overbreadth and vagueness challenges to the communication clause. Laws incidentally burdening religion are ordinarily not subject to strict scrutiny so long as they are neutral and generally applicable. CADA is a neutral law of general applicability, and its communication clause’s “unwelcome provision” does not render the clause unconstitutionally overbroad because its application is not substantial relative to the scope of the law’s legitimate applications. Further, the statutory terms are clear in their application to plaintiffs’ proposed conduct, so their vagueness challenge also fails.

The summary judgment was affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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