This Colorado Marketing and Design Firm Wants A Pass to Discriminate

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April 30, 2020

Late yesterday, Lambda Legal urged the U.S. Court of Appeals for the Tenth Circuit to affirm 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 claims it violates her religion to treat same- and different-sex couples equally. The owner, Lorie Smith, also wants to include a statement on the website for her business – 303 Creative LLC – stating that she will not serve same-sex couples.

Smith is represented by Alliance Defending Freedom (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 right to discriminate when operating a commercial business.

“In September 2017, and again this past September, the U.S. District Court for the District of Colorado properly dismissed all of the business owner’s legal claims, noting that the State of Colorado has a compelling interest in ending discrimination,” said Jennifer C. Pizer, Senior Counsel and Law and Policy Director at Lambda Legal. “The court’s ruling was consistent with decisions by courts across the country that have similarly refused to create a new religious and free speech right for businesses to exempt themselves from civil rights laws.

“As we argued in our friend-of-the-court brief to the U.S. Supreme Court three years ago in Masterpiece Cakeshop v. Colorado Civil Rights Commission, this isn’t really about cake or websites or flowers,” Pizer added. “It’s about protecting LGBT people and their families from being subjected to slammed doors, service refusals, and public humiliation in countless places – from medical clinic to mortuary, and everywhere in between. In diverse, contemporary America, no one should be forced to go from business to business, searching for where they won’t be treated as pariahs.”

Colorado expanded CADA 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 seeking an exemption from the public accommodation provisions of CADA, even though no same-sex couple had ever sought its services. To date, it still has never been asked to produce a wedding website for a same-sex couple. The company’s website today 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 this past September, 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 active in state and federal courts in which businesses are claiming a religious license to discriminate and in which Lambda Legal is involved either through direct representation, or as amicus. These includeKlein (dba Sweetcakes by Melissa) v. Oregon Bureau of Labor and Industries, in which Lambda Legal represents the lesbian couple denied service by the bakers, 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 in favor of a gay couple denied service by a florist and the florist is again seeking review by the U.S. Supreme Court. Lambda Legal is supporting the couple as a friend of the court.

The authors of Lambda Legal’s amicus brief are Jennifer C. Pizer, Camilla Taylor and Jamie Gliksberg.