State of Colorado to SCOTUS: State anti-discrimination law regulates business sales, not speech
Businesses offering goods and services to the public must serve all and not discriminate
Aug. 12, 2022 (DENVER)—The Colorado Attorney General’s Office today asked the U.S. Supreme Court to uphold the state’s long-standing civil rights law that requires public businesses to serve all customers and prohibit denials of service because of a customer’s religion, sexual orientation, race, sex, disability, or other characteristics protected under the law.
The question before the court is whether a public accommodations law violates the First Amendment’s Free Speech Clause when it requires a business to offer its goods and services—including customized goods and services—to all customers regardless of protected characteristics. The design business in this case does not yet offer wedding websites and has not turned away any customer. The business would like to offer wedding website services, but first wants to announce that it will not design a website for “same-sex marriages or any other marriage that is not between one man and one woman.” The business claims the website services it offers are expressive and asks the Court to exempt it from Colorado’s antidiscrimination law because it believes selling wedding websites to same-sex couples supports same-sex marriage, which it objects to.
The federal district court and the 10th Circuit Court of Appeals in Denver both ruled that the state’s law is constitutional. The business now is asking the U.S. Supreme Court to allow it to turn away same-sex couples and not offer them the same website design services it would offer opposite-sex couples.
In a brief filed with the U.S. Supreme Court, the attorney general’s office says that the Colorado Anti-Discrimination Act simply prevents sales discrimination. What a business chooses to sell to the public remains entirely up to the business. Once a business offers something to the public, however, the law ensures it must offer it to any customer regardless of their race, religion, sexual orientation, or other protected characteristic.
“Public accommodations laws enacted in Colorado and across the country protect equal access to goods and services and the dignity of all customers. Colorado’s law regulates ordinary business sales. The mere act of selling something to all on equal terms is not expressive conduct, and the law does not compel businesses to speak or stay silent,” Colorado Attorney General Phil Weiser explained. “Advertisements that effectively say ‘straight couples only’ are not protected by the Court’s free speech precedents. Rather, the Court has repeatedly affirmed the state’s ability to regulate ordinary sales discrimination and it should do so again in this case.”
The case is No. 21-476, 303 Creative LLC v. Aubrey Elenis, et al. The Court has not yet scheduled oral argument in this case.
Click here to read the State’s brief filed with the Court.