The U.S. Supreme Court Will Revisit the Scope of Colorado’s Anti-Discrimination Provisions, as Applied to Businesses, Once Again
By Jesse A. Cherkoss, Associate
On December 5, 2022, the United States Supreme Court will hear oral arguments in 303 Creative LLC v. Elenis,[1] to determine, among other things, whether the Colorado Anti-Discrimination Act (“CADA”) [2] prohibits a business from publishing statements based upon religious grounds that the company will not serve the LGBTQ community.[3]
303 Creative LLC v. Elenis – Background and Analyses
303 Creative is a graphic and website design company that objected to creating wedding websites for same-sex marriages on religious grounds, and intended to publish a statement describing its religious objections to creating such websites. In an attempt to prevent a potential lawsuit, the company sought the state of Colorado’s approval before publishing the Notice by bringing a pre-enforcement challenge to both CADA’s Accommodation and Communication clauses, which prohibit the refusal of services based on a customer’s protected class or publishing statements signifying that services would be refused on such grounds. The District Court granted summary judgment in favor of the State, and 303 Creative appealed to the Tenth Circuit, which upheld the State’s decision and found that CADA’s Accommodation Clause was narrowly tailored to Colorado’s interests in ensuring equal access to publicly available goods and services.[4]
Key Takeaways
The Supreme Court will limit their inquiry to the question of whether CADA’s prohibition against publishing statements like the statement advocated by 303 Creative violates the Free Speech Clause of the First Amendment. The case will also likely highlight the ideological divide on the bench, and the Court’s decision will certainly have ramifications regarding anti-discrimination laws, religious freedoms, and the Free Speech Clause—particularly for businesses that may have religious objections to performing certain work or services.
[1] 6 F.4th 1160 (10th Cir. 2021), cert. granted, 142 S. Ct. 1106 (2022).
[2] Colo. Rev. Stat. §§ 24-24-601 et seq.
[3] The 303 Creative case may be getting such attention because of a prior Colorado case, Masterpiece Cakeshop, where the Supreme Court ruled that the Colorado Civil Rights Commission did not employ religious neutrality, violating the business owner’s free exercise rights. The court determined that the business owner’s religious justification for not wanting to serve the LGBTQ community was not offered the neutral treatment mandated by the Free Exercise Clause. Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719 U.S. (2018).
[4] Likewise, the Tenth Circuit held that CADA’s Communication Clause did not implicate 303 Creative’s First Amendment rights because 303 Creative’s proposed statement regarding its refusal to provide services for same-sex marriages was not protected speech. See Supra, Note 1. However, according to the dissent, the current application of CADA forces 303 Creative to violate its owner’s faith by the threat of sanctions for religious-based business practices and/or publishing its opinion on the topic in a manner deemed unsuitable by the majority. Id.