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Colorado attorney general files SCOTUS brief on Colorado web designer’s free speech rights

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Colorado attorney general files SCOTUS brief on Colorado web designer’s free speech rights

Aug 12, 2022 | 5:21 pm ET
By Sara Wilson
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Colorado attorney general files SCOTUS brief on Colorado web designer’s free speech rights
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The Guardian or Authority of Law, created by sculptor James Earle Fraser, rests on the side of the U.S. Supreme Court on Sept. 28, 2020. (Al Drago/Getty Images)

In a brief filed with the U.S. Supreme Court on Friday, Colorado Attorney General Phil Weiser argued that the decision by a web design business to preemptively refuse services to same-sex couples violates the state’s anti-discrimination law.

The high court will consider 303 Creative v. Elenis during its next term, which begins in October. The Colorado-based design firm wants to expand its services to wedding website design but does not want to serve same-sex couples and wants to post a statement on its website saying so.

“Our anti-discrimination laws do not allow the company to refuse customers because of their sexual orientation. That’s not equal treatment under the law. Customers may choose whether or not to purchase the company’s wedding designs — that’s how the marketplace works. But because it’s open to the public, 303 may not choose who its customers are,” Weiser told reporters Friday.

He said that the law allows for businesses to freely decide their own products and services. A Jewish bakery, for example, could decide to only sell traditionally Jewish baked goods. A pet photographer can decide to limit their services to only pets. But once a business offers their service to the public, it must offer it equally.

“The Accommodations Clause does not aim to suppress any message the Company might express,” Weiser writes in the filed brief. “The Company is free to decide what design services to offer and whether to communicate its vision of marriage through biblical quotes on its wedding websites. The Act requires only that the Company sell whatever product or service it offers to all regardless of its customers’ protected characteristics.”

303 Creative has not yet designed a wedding website or had a same-sex couple ask for one.

“We know that in the past, people have been excluded from businesses and from accessing goods and services because of their race, gender, religion, sexual orientation or gender identity. That exclusion causes real harm, both to our state’s economic vitality and to our commitment and lived experience of equal protection under the law,” Weiser said.

The question before the court is whether the state law violates the free speech clause of the First Amendment. The federal district court and 10th Circuit Court of Appeals both ruled that the state’s anti-discrimination law is constitutional.

“We have seen over decades and decades that the Supreme Court has held this line we are advancing in this case,” Weiser said in response to a question about arguing this case in front of a conservative-majority court that has recently overturned long-held precedent.

“The regulation of conduct to prohibit discrimination is protected activity, and it is really critical that we not break from that line,” he said.

Colorado Solicitor General Eric Olson will argue on behalf of the state in front of the Supreme Court. Dates for oral arguments have not been set.