Tenth Circuit Affirms Federal Trial Court Ruling Rejecting Anti-LGBTQ License to Discriminate

The U.S. Court of Appeals for the Tenth Circuit today affirmed a lower court that denied a Colorado marketing and design firm’s request that it be exempt from the Colorado Anti-Discrimination Act (CADA) and instead be allowed to refuse website design services to same-sex couples because the owner claimed it violated her religion to treat same- and different-sex couples equally. The owner also wanted to include a statement on the website for her business – 303 Creative LLC – stating that she would not serve same-sex couples.

Lambda Legal submitted a friend-of-the-court brief in support of CADA. Jennifer C. Pizer, Senior Counsel at Lambda Legal, issued the following statement after today’s ruling.

“This is a tremendous ruling that properly situates our cherished freedoms of speech and religion among the important rights guaranteed by the U.S. Constitution, while also understanding that the State of Colorado has a compelling interest and responsibility to end discrimination in the commercial sphere. As we explained in our friend-of-the-court brief to the U.S. Supreme Court in Masterpiece Cakeshop v. Colorado Civil Rights Commission, this really isn’t about cake or websites or flowers. It’s about protecting LGBTQ people and their families from being subjected to slammed doors, service refusals, and public humiliation in countless places – from fertility clinics to funeral homes, and everywhere in between.”

The federal Court of Appeals today embraced both the evidence and the reasoning Lambda Legal provided in its amicus brief in this case, stating: 

“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. … Colorado’s interest in preventing both dignitary and material harms to LGBT people is well documented.  … Even setting Colorado’s history aside, Colorado, like many other states, has an interest in preventing ongoing discrimination against LGBT people. See Br. of Lambda Legal Defense and Education Fund as amicus curiae, at 15 (describing ongoing discrimination against LGBT people in Colorado) …. “

Lambda Legal’s Pizer added, “Make no mistake, this was another attempt by Alliance Defending Freedom (ADF) to chip away at hard-won civil rights secured for LGBT people and their families. But the appellate court today saw through ADF’s transparent and continuing effort to secure a ‘free to discriminate’ card to exempt 303 Creative from the laws all other Colorado businesses are expected to follow. The stakes were higher than many people realized. Had ADF succeeded, that federal constitutional ‘free to discriminate’ card also could have been used by all sorts of businesses to excuse turning anyone away due to their race, color, sex, ethnicity, religion, disability or anything else now covered by state or federal law in any of the states in the Tenth Circuit: Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.”

303 Creative owner Lorie Smith is represented by ADF, an anti-LGBT legal organization that has been designated a hate group by the Southern Poverty Law Center. This is one of several cases in state and federal courts seeking to create a religious and free speech right to discriminate when operating a commercial business.

Colorado expanded CADA’s protections in 2008 to include sexual orientation and gender identity. In September 2016, 303 Creative, represented by ADF, filed suit in the U.S. District Court for Colorado seeking an exemption from the public accommodation provisions of CADA, even though no same-sex couple had ever sought its services. The company’s website includes a reference to Lorie Smith operating her business in strict accordance with her religious beliefs, although it does not mention refusing services for same-sex couples.

In September 2017 the District Court ruled against 303 Creative, and reaffirmed that ruling in September 2019, after ADF’s initial appeal to the Tenth Circuit was denied and the case was sent back to the District Court. ADF then appealed to the Tenth Circuit again.

303 Creative is one of numerous cases in state and federal courts in which businesses have claimed a religious and free speech license to discriminate and in which Lambda Legal participates either through direct representation, or as a friend-of-the-court. These include: Klein (dba Sweetcakes by Melissa) v. Oregon Bureau of Labor and Industries, in which Lambda Legal represents the lesbian couple denied service by a baker and her husband, which is back before the Oregon Court of Appeals after it was remanded by the U.S. Supreme Court; and Ingersoll and Freed v. Arlene’s Flowers, in which the Supreme Court of Washington affirmed its earlier ruling enforcing the law in favor of a gay couple denied service by a florist and the U.S. Supreme Court recently rejected the florist’s second attempt to secure a different result in the High Court. Lambda Legal supported the gay couple as a friend of the court.

The case is 303 Creative v. Elenis. Read the court’s ruling here: https://www.lambdalegal.org/in-court/legal-docs/us_20210726_303-creative-v-elenis-opinion

Read our amicus brief here: https://www.lambdalegal.org/in-court/legal-docs/303_co_20200429_brief-for-amici-curiae

Read about Lambda Legal’s work fighting religious exemptions here: https://www.lambdalegal.org/blog/topic/ religious-exemptions.

Read our brief in Masterpiece Cakeshop here: https://www.lambdalegal.org/in-court/cases/masterpiece-cakes-v-co-civil-rights-commission.

The authors of Lambda Legal’s amicus brief are Jennifer C. Pizer and Deputy Legal Director for Litigation Camilla Taylor, with Jamie Gliksberg of Croke Fairchild Morgan & Beres.