405 F.Supp.3d 907
D. Colo.2019Background
- Lorie Smith owns 303 Creative, which designs custom wedding websites; she is a devout Christian and refuses to create sites for same-sex couples and planned to post a public statement explaining that policy.
- Colorado law, C.R.S. § 24-34-601(2), contains (a) an Accommodations Clause banning discrimination in goods/services based on sexual orientation and (b) a Communications Clause prohibiting publications that state goods/services will be refused on such bases.
- Smith brought a pre-enforcement challenge seeking declaratory relief that both clauses violate the First Amendment Free Speech and Free Exercise Clauses and Fourteenth Amendment protections; the court previously dismissed Smith’s direct challenge to the Accommodations Clause for lack of standing, leaving only the Communications Clause challenge.
- The court had earlier denied Smith summary judgment and signaled that defendants appeared entitled to judgment; the court invited further briefing and considered Smith’s supplemental filings.
- The court rejected Smith’s arguments that it must assess the Accommodations Clause’s constitutionality when deciding the Communications Clause claim, and rejected her Free Exercise hostility argument as inapplicable to this pre-enforcement challenge.
- The court concluded Smith’s announced Statement proposes conduct made unlawful by the Accommodations Clause, found the defendants entitled to summary judgment on all claims, and entered judgment for the defendants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court must treat the Accommodations Clause as an ingredient of the Communications Clause analysis (i.e., cannot assume its legality) | Smith: Court must examine the Accommodations Clause’s constitutionality rather than assume it legal when evaluating the Communications Clause | Defendants: The Communications Clause can be evaluated on its own; Smith may not indirectly attack the Accommodations Clause after losing standing | Court: May assume the Accommodations Clause’s legality for this limited inquiry; Smith may not use the Communications claim to circumvent lack of standing to challenge the Accommodations Clause |
| Whether Smith’s Statement is protected speech or proposes unlawful conduct (and thus is unprotected) | Smith: Her Statement is speech protected by the First Amendment | Defendants: The Statement proposes to refuse services to same-sex couples — an act made unlawful by the Accommodations Clause — so the speech is not protected in that respect | Court: The Statement proposes unlawful conduct under the Accommodations Clause and thus falls outside First Amendment protection for this challenge |
| Relevance of alleged hostility by Colorado Civil Rights Commission (Masterpiece) to Smith’s Free Exercise claim | Smith: Commission members’ hostile statements (as in Masterpiece) show hostility relevant to her Free Exercise claim | Defendants: Those statements are irrelevant to this pre-enforcement challenge to the Communications Clause | Court: Such hostility evidence is irrelevant here because Smith brings a pre-enforcement claim to the Communications Clause, not a challenge to specific enforcement conduct |
| Applicability of Telescope Media/other precedents to Smith’s Communications Clause challenge | Smith: Cites Telescope and others to support standing and speech protections for creative wedding services | Defendants: Telescope and like cases address Accommodation-type statutes and are not controlling here; Smith lacks standing to pursue an Accommodation challenge | Court: Telescope (and similar decisions) do not control the Communications Clause-only challenge and would not alter the court’s conclusion here |
Key Cases Cited
- Bigelow v. Virginia, 421 U.S. 809 (1975) (commercial advertisement may be protected speech; court examines whether the content proposes illegal activity rather than deferring to statutory labels)
- Housing Opportunities Made Equal, Inc. v. Cincinnati Enquirer, Inc., 943 F.2d 644 (6th Cir. 1991) (courts should analyze the content of commercial messages and not let statutory labels foreclose constitutional review)
- BellSouth Telecommunications, Inc. v. Farris, 542 F.3d 499 (6th Cir. 2008) (statutory prohibition on certain disclosures cannot be upheld merely because the underlying statute labels the speech illegal)
- Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n, 138 S. Ct. 1719 (2018) (official hostility toward religion can invalidate enforcement where demonstrated in concrete proceedings)