U.S. Supreme Court Hears Oral Arguments on Colorado Business’s First Amendment Speech Rights

Jason Fisher

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The U.S. Supreme Court heard oral arguments last month in a case challenging the Colorado Anti-Discrimination Act (CADA) in a scenario similar to the Masterpiece Cakeshop decision of 2018. 303 Creative LLC, a Colorado based graphic design service is seeking to provide wedding website design services but only for opposite-sex weddings due to the owner’s religious beliefs that preclude her from providing the same services for same-sex couples.

303 Creative LLC is classified as a “public accommodation” under CADA and therefore subject to its prohibition on refusing service to an individual or group on the basis of sexual orientation. CADA further prohibits businesses from announcing an intent to discriminate in this manner. A public accommodation is defined under CADA 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.”

303 Creative LLC is bringing a pre-enforcement challenge against CADA meaning Colorado authorities have not alleged any wrongdoing, rather 303 Creative LLC is bringing the case to permit an exception to CADA for a planned announcement that it will not provide services for same-sex marriages to be posted on its website. 303 Creative LLC’s argument is rooted in the First Amendment’s protection of free speech whereas Colorado has asserted that CADA regulates conduct, not speech, by requiring only that the business provide services to anyone who wants to pay for them.

It will likely be several more months before a decision is issued in this case, but groups protected by CADA and business owners should follow along closely. A decision in 303 Creative LLC’s favor may permit businesses to deny service to certain individuals and groups currently protected by CADA’s public accommodation laws. If this comes to pass business owners should consider the reputational harm that will result from adopting a policy of refusing service and must avoid fostering a hostile work environment in which harassment or discrimination may occur which would still result in legal ramifications.

If you are a business owner it is ever more important to adopt strong policies addressing workplace accommodation, anti-harassment, and discrimination to promote a healthy work environment and head off potential legal claims.

ABOUT THE AUTHOR

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Jason focuses his practice on corporate governance, commercial finance, commercial contracts, and employment law. He advises clients on all aspects of general corporate matters and strategic business decisions including organization structure, operating/shareholder agreements, and private debt and equity offerings.

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