First Amendment does not permit business owners to deny services to LGBTQ Americans, says Weiser in wedding website case
April 23, 2020 (DENVER, Colo.)— The First Amendment does not allow businesses to engage in illegal discrimination or to advertise that their goods or services are off limits to people who are gay, lesbian, bisexual or transgender, explains Attorney General Phil Weiser in a court brief filed with the 10th Circuit Court of Appeals in the case 303 Creative LLC v. Aubrey Elenis.
The company in this case claims it would like to offer wedding website design services. It also states that it would deny services to customers based on their sexual orientation by refusing to provide wedding websites to same-sex couples because of the owner’s religious beliefs. The company also wants to post a message on its website that it will refuse requests from same-sex couples.
To date, however, the company has not offered or refused any wedding website services, no one has filed a complaint against the company, and the state has not engaged in any enforcement action against the company. Nonetheless, the company filed a lawsuit asking the federal district court in Denver to declare Colorado’s Anti-discrimination Act unconstitutional and prevent it from being enforced.
“The state has not taken any enforcement action of any sort against the company in this case, and the company has not shown any harm that has occurred or that might occur in the future. Rather, the company essentially is asking the court for pre-approval and a hypothetical advisory ruling that provides it with license to discriminate against members of the LGBTQ community. That is not the proper role of the courts. For this reason alone, the case should not go forward,” said Weiser.
Weiser pointed out that the district court upheld Colorado’s Anti-discrimination Act as constitutional because the state has a strong interest in making sure that businesses that provide goods and services to the public do not discriminate against their customers. He also explained that the U.S. Supreme Court ruled in the Masterpiece Cakeshop case that religious objections do not allow business owners or others to deny equal access to goods and services to LBGTQ Americans under public accommodations laws.
“The state’s public accommodations anti-discrimination law guarantees equal treatment of all citizens in the commercial marketplace. This law would be undermined if courts carved out special exceptions for discrimination. In fact, if a company can discriminate against same-sex couples, it could also deny services to interracial couples and couples from different religions. The court should uphold the district court’s ruling that Colorado’s Anti-discrimination Act does not violate the First Amendment because it regulates what commercial actors do, which is offer goods and services to the public. Discrimination has no place in Colorado,” said Weiser.
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