303 Creative LLC v. Elenis

6 F.4th 1160

303 CREATIVE LLC, a limited liability company; Lorie Smith, Plaintiffs - Appellants,

v.Aubrey ELENIS; Charles Garcia; Ajay Menon; Miguel Rene Elias; Richard Lewis ; Kendra Anderson; Sergio Cordova; Jessica Pocock; Phil Weiser, Defendants - Appellees.

Foundation for Moral Law; Cato Institute; Center for Religious Expression ; Catholicvote.org Education Fund; Law and Economic Scholars; Tyndale House Publishers; Crossroads Productions, Inc., d/b/a Catholic Creatives; Whitaker Portrait Design, Inc., d/b/a Christian Professional Photographers; The Briner Institute, Inc. ; State of Arizona; State of Alabama ; State of Alaska ; State of Arkansas; State of Kentucky; State of Louisiana ; State of Missouri; State of Montana; State of Nebraska; State of Oklahoma; State of South Carolina; State of Tennessee; State of Texas ; State of West Virginia ; Robert P. George, Professor; American Civil Liberties Union of Colorado; American Civil Liberties Union Foundation; Americans United for Separation of Church and State; Anti-defamation League ; Bend the Arc: a Jewish Partnership for Justice ; Central Conference of American Rabbis; Global Justice Institute, Metropolitan Community Churches ; Hadassah, the Women's Zionist Organization of America, Inc.; Hindu American Foundation; Interfaith Alliance Foundation ; Interfaith Alliance of Colorado; Men of Reform Judaism; People for the American Way Foundation; Reconstructionist Rabbinical Association ; Sikh Coalition; Women of Reform Judaism; Union for Reform Judaism; State of Massachusetts; State of California; State of Connecticut ; State of Delaware; District of Columbia; State of Hawaii ; State of Illinois ; State of Maine ; State of Maryland; State of Minnesota ; State of Nevada ; State of New Jersey ; State of New Mexico ; State of New York; State of North Carolina; State of Oregon ; State of Pennsylvania; State of Rhode Island; State of Vermont; State of Virginia ; State of Washington ; Law Professors of the State of Colorado; Law Professors From the State of Kansas; Law Professors From the State of New Mexico; Law Professors From the State of Oklahoma; Law Professors From the State of Utah; Law Professors From the State of Wyoming; Lawyers' Committee for Civil Rights Under Law; Southern Poverty Law Center; Asian American Legal Defense & Education Fund; LatinoJustice PRLDEF; Leadership Conference on Civil and Human Rights ; National Action Network ; the Center for Constitutional Rights; Center for Constitutional Rights; Floyd Abrams; Erwin Chemerinsky; Walter Dellinger; Kermit Roosevelt ; Amanda Shanor; Rebecca Tushnet; Max H. Bazerman; Monica C. Bell; Issa Kohler-Hausmann; David Laibson; Adam J. Levitin; Mary-Hunter McDonnell; Neeru Paharia; Nina Strohminger; Tom R. Tyler; Lauren E. Willis; Lambda Legal Defense & Education Fund, Inc., Amici Curiae.

No. 19-1413

United States Court of Appeals, Tenth Circuit.

FILED July 26, 2021

Kristin K. Waggoner (Jonathan A. Scruggs and Katherine L. Anderson, Alliance Defending Freedom, Scottsdale, Arizona; David A. Cortman and John J. Bursch, Alliance Defending Freedom, Washington, DC, with her on the briefs), Alliance Defending Freedom, Scottsdale, Arizona, appearing for Plaintiffs-Appellants.

Eric R. Olson, Solicitor General (Phillip J. Weiser, Colorado Attorney General; Billy Lee Seiber, First Assistant Attorney General; Jack D. Patten, III, Senior Assistant Attorney General; Vincent E. Morscher and Skippere S. Spear, with him on the brief), Colorado Department of Law, Denver, Colorado, appearing for Defendants-Appellees.

Before TYMKOVICH, Chief Judge, BRISCOE, and MURPHY, Circuit Judges.

BRISCOE, Circuit Judge.

I. Introduction

Appellants Lorie Smith and her website design company 303 Creative, LLC (collectively, "Appellants") appeal the district court's grant of summary judgment in favor of Appellees Aubrey Elenis, Director of the Colorado Civil Rights Division (the "Director"), Anthony Aragon, Ulysses J. Chaney, Miguel Rene Elias, Carol Fabrizio, Heidi Hess, Rita Lewis, and Jessica Pocock, members of the Colorado Civil Rights Commission (the "Commission"), and Phil Weiser, Colorado Attorney General (collectively, "Colorado"). Appellants challenge Colorado's Anti-Discrimination Act ("CADA") on free speech, free exercise, and vagueness and overbreadth grounds.

As to our jurisdiction, we hold that Appellants have standing to challenge CADA. As to the merits, we hold that CADA satisfies strict scrutiny, and thus permissibly compels Appellants’ speech. We also hold that CADA is a neutral law of general applicability, and that it is not unconstitutionally vague or overbroad. Accordingly, exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court's grant of summary judgment in favor of Colorado.

II. Background

A. Factual Background

1. CADA

CADA restricts a public accommodation's ability to refuse to provide services based on a customer's identity. Specifically, CADA defines a public accommodation as "any place of business engaged in any sales to the public and any place offering services, facilities, privileges, advantages, or accommodations to the public." Colo. Rev. Stat. § 24-34-601(1). Exempted from CADA's definition of public accommodations are places that are "principally used for religious purposes." Id.

Under CADA's "Accommodation Clause," a public accommodation may not:

directly or indirectly ... refuse ... to an individual or a group, because of ... sexual orientation ... the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation ....

Colo. Rev. Stat. § 24-34-601(2)(a).

Under CADA's "Communication Clause," a public accommodation also may not:

directly or indirectly ... publish ... any ... communication ... that indicates that the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation will be refused ... or that an individual's patronage ... is unwelcome, objectionable, unacceptable, or undesirable because of ... sexual orientation ....

Id.

CADA exempts certain sex-based restrictions from the Accommodation Clause and Communication Clause. Specifically, under CADA, "it is not a discriminatory practice for a person to restrict admission to a place of public accommodation to individuals of one sex if such restriction has a bona fide relationship to the goods, services, facilities, privileges, advantages, or accommodations of such place of public accommodation." Colo. Rev. Stat. § 24-34-601(3).

CADA provides several different means of enforcement. A person alleging a violation of CADA can bring a civil action in state court. The state court may levy a fine of "not less than fifty dollars nor more than five hundred dollars for each violation." Colo. Rev. Stat. § 24-34-602(1)(a). A complainant can also file charges alleging discrimination with the Colorado Civil Rights Division. The Commission, individual Commissioners, or the Colorado Attorney General may also independently file charges alleging discrimination "when they determine that the alleged discriminatory or unfair practice imposes a significant societal or community impact." Aplts.’ App. at 2-315, ¶ 7. The Director of the Civil Rights Division then investigates the allegations and determines whether the charge is supported by probable cause. If probable cause is found, the Director provides the parties with written notice and commences a compulsory mediation. If mediation fails, a hearing may be held before the Colorado Civil Rights Commission, a single Commissioner, or an administrative law judge. If a violation is found after a hearing, the Commission may issue a cease and desist order against the offending public accommodation.

In a different case, Colorado enforced CADA against a bakery that, because of its owner's religious beliefs, refused to provide custom cakes that celebrated same-sex marriages. That case eventually made its way up to the United States Supreme Court, where the Court ruled in favor of the baker. See Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n , ––– U.S. ––––, 138 S. Ct. 1719, 201 L.Ed.2d 35 (2018). There, the Court held that Colorado violated the Free Exercise Clause by enforcing CADA in a manner "inconsistent with the State's obligation of religious neutrality." Id. at 1723. The Court relied, in part, on statements made by a Commissioner who disparaged the baker's religious beliefs when the Commission adjudicated that case. Id. at 1729. The Court also noted that, on at least three other occasions, Colorado declined to enforce CADA against other bakers who refused to create custom cakes that disparaged same-sex marriages. Id. at 1730.

At a public meeting held a few days after the Court's ruling in Masterpiece Cakeshop , a single Commissioner opined that, despite the Court's ruling, the Commissioner who was referenced in Masterpiece Cakeshop did not say "anything wrong." Aplts.’ App. at 3-609. Others at that hearing, however, including Director Elenis, voiced agreement with the Court's ruling and their commitment to follow that ruling. See, e.g. , id. at 3-606 (Director Elenis: "So in these cases going forward, Commissioners and ALJs and others, including the Staff at the Division, have to be careful how these issues are framed so that it's clear that full consideration was given to sincerely—what is termed as sincerely-held religious objections.").

2. Appellants

303 Creative is a for-profit, graphic and website design company; Ms. Smith is its founder and sole member-owner. Appellants are willing to work with all people regardless of sexual orientation. Appellants are also generally willing to create graphics or websites for lesbian, gay, bisexual, or transgender ("LGBT") customers. Ms. Smith sincerely believes, however, that same-sex marriage conflicts with God's will. Appellants do not yet offer wedding-related services but intend to do so in the future....