Attorney General Kris Mayes pledged to ignore the Supreme Court’s (SCOTUS) recent decision in the case 303 Creative v. Elenis.
SCOTUS ruled last month that Colorado’s anti-discrimination law that would punish a Christian wedding website designer for declining to make a same-sex wedding website violated the First Amendment. The Scottsdale legal nonprofit Alliance Defending Freedom (ADF) represented the website designer.
The Supreme Court’s decision in 303 Creative reaffirms a bedrock principle: the government cannot force us to say something we don’t believe.
Equal treatment under the law requires protecting everyone’s right to free speech.
— Alliance Defending Freedom (@ADFLegal) July 5, 2023
Colorado anti-discrimination law added sexual orientation and gender identity to the list of traditional Civil Rights protections: race, religion, color, and national origin.
In a press release, Mayes encouraged individuals to continue to file complaints of discrimination concerning LGBTQ+ identity.
“Despite today’s ruling, Arizona law prohibits discrimination in places of public accommodation, including discrimination because of sexual orientation and gender identity,” said Mayes. “If any Arizonan believes that they have been the victim of discrimination on the basis of race, color, religion, sex (including sexual orientation and gender identity), national origin, or ancestry in a place of public accommodation, they should file a complaint with my office. I will continue to enforce Arizona’s public accommodation law to its fullest extent.”
The Arizona Civil Rights Act (ACRA) doesn’t list either sexual orientation or gender identity as protected classes. ACRA only recognizes race, color, sex, religion, national origin, age, physical or mental disability, and genetic testing results as protected classes.
Mayes’ interpretation of ACRA could come from the arguments presented by former attorney general Mark Brnovich. Mayes’ predecessor interpreted anti-discrimination protections to include both sexual orientation and gender identity in a 2020 filing for Bruer v. State of Arizona. His filing followed the Bostock v. Clayton County decision prohibiting employers from discriminating based on sexual orientation or gender identity.
At the time, Brnovich stated that the state legislature would have to amend the Arizona Civil Rights Act to exclude sexual orientation and gender identity if they disagreed with his interpretation.
Also in her press release, Mayes called the SCOTUS majority “woefully misguided.” Mayes added that she agreed with Justice Sonya Sotomayor’s dissent.
“Today, a woefully misguided majority of the United States Supreme Court has decided that businesses open to the public may, in certain circumstances, discriminate against LGBTQ+ Americans,” stated Mayes.
Today, a woefully misguided majority of the United States Supreme Court has decided that businesses open to the public may, in certain circumstances, discriminate against LGBTQ+ Americans.
— AZ Attorney General Kris Mayes (@AZAGMayes) June 30, 2023
Sotomayor’s dissent argued that the wedding website designer wasn’t protected by the First Amendment because her refusal to validate a same-sex wedding should be considered an act, not protected speech. Sotomayor further argued that individuals should be compelled to act contrary to their personal beliefs if they’re wishing to participate in the economy at all.
“[I]f a business chooses to profit from the public market, which is established and maintained by the state, the state may require the business to abide by a legal norm of nondiscrimination,” stated Sotomayor.
In her first executive order issued in January, Gov. Katie Hobbs added gender identity to the list of anti-discrimination protections concerning state employment and contracts. Hobbs expanded on the anti-discrimination precedent of her Democratic female predecessor, Janet Napolitano, who issued an executive order prohibiting discrimination based on sexual orientation.
Corinne Murdock is a reporter for AZ Free News. Follow her latest on Twitter, or email tips to corinne@azfreenews.com.
The Scottsdale legal nonprofit Alliance Defending Freedom (ADF) won a religious freedom case at the Supreme Court of the United States (SCOTUS).
SCOTUS ruled 6-3 at the end of June in 303 Creative v. Elenis against Colorado’s anti-discrimination law, Colorado Anti-Discrimination Act (CADA), as unconstitutional. The law would prohibit a Christian wedding website designer from refusing to create a same-sex wedding website.
The plaintiff, Lorie Smith, holds the Christian belief that marriage exists only between one man and one woman, and contests against the possibility that she either must produce content that “contradicts Biblical truth,” such as same-sex marriages, or cease business.
Ultimately, SCOTUS determined in a majority opinion written by Justice Neil Gorsuch that Smith’s creative expression constituted speech and that CADA therefore violated the First Amendment’s Free Speech Clause.
“Ms. Smith’s websites will express and communicate ideas — namely, those that ‘celebrate and promote the couple’s wedding and unique love story’ and those ‘celebrat[e] and promot[e]’ what Ms. Smith understands to be a marriage,” stated Gorsuch.
"This is a victory not just for me, but for all of us. Whether you share my beliefs or disagree with them, free speech is for everyone. And the government shouldn’t force anyone to say something they don’t believe. The Court’s decision means we are all more free today than we… pic.twitter.com/wXHqZgAWL2
— Alliance Defending Freedom (@ADFLegal) June 30, 2023
Gorsuch further criticized CADA for its fullest possible outcome: compelling speech of all manners and kinds from any commissioned person if their customer belongs to a CADA-protected class.
“Under Colorado’s logic, the government may compel anyone who speaks for pay on a given topic to accept all commissions on that same topic — no matter the message — if the topic somehow implicates a customer’s statutorily protected trait,” said Gorsuch. “Taken seriously, that principle would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty. The Court’s precedents recognize the First Amendment tolerates none of that.”
Smith does have LGBTQ clients; however, Smith won’t create content that runs counter to her beliefs.
After the SCOTUS ruling, ADF CEO and lead counsel Kristen Waggoner stated that differences of beliefs don’t constitute discrimination.
“Disagreement isn’t discrimination, and the government can’t mislabel speech as discrimination to censor it,” said Waggoner. “As the court highlighted, her decisions to create speech always turn on what message is requested, never on who requests it. [T]he government has never needed to compel speech to ensure access to goods and services.”
The U.S. Supreme Court has rightly reaffirmed that the government can’t force Americans to say things they don’t believe. The court reiterated that it’s unconstitutional for the state to eliminate from the public square ideas it dislikes, including the belief that marriage is the… https://t.co/9BtiPg0skn
Following the ruling, critics alleged that Smith fabricated a request for a same-sex wedding website after a news article insinuated she did. Colorado Attorney General Phil Weiser also derided Smith’s complaint as “a made-up case without the benefit of any real facts or customers.” ADF and Smith rejected those claims.
Corinne Murdock is a reporter for AZ Free News. Follow her latest on Twitter, or email tips to corinne@azfreenews.com.
During oral arguments last Monday, the Supreme Court (SCOTUS) appeared to side with a Christian website designer who is challenging a Colorado law that would force her to create websites celebrating same-sex weddings. The final ruling is forthcoming.
Counsel in the case, 303 Creative LLC v. Elenis, is the Scottsdale-based Alliance Defending Freedom (ADF). At issue: whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.
Attorney Kristen Waggoner argued that SCOTUS precedent rejects government-compelled speech like what the state of Colorado wants to impose on graphic artist and website designer Lorie Smith with the threat of “pain of investigation, fine, and reeducation.”
Colorado Solicitor General Eric Olson argued that the free speech clause exemption wouldn’t just apply to sincerely held religious beliefs, but “all sorts of racist, sexist, and bigoted views.” Olson claimed that such protections would allow a tech company to refuse to serve 303 Creative LLC because of Smith’s religious beliefs.
Near the end of arguments, U.S. Deputy Solicitor General Brian Fletcher stated that he wanted the Court to find religious business owner discrimination against same-sex unions to be as odious and invalid of First Amendment protections as racism.
“I don’t mean to equate those who have different views of marriage to racists, but the reason why I rely on those hypotheticals is because this court’s First Amendment jurisprudence does not distinguish between views we find odious and those we respect,” stated Fletcher. “The same principles apply in both places, and if the principles lead to unacceptable places when we consider them in light of odious views, then I think we have to reject those principles even in the case where we sympathize with and respect the views.”
The three liberal justices of the court — Elena Kagan, Ketanji Brown Jackson, and Sonia Sotomayor — argued that website designers don’t speak through their product. They also argued that extending protection to speech arising from religious beliefs of true marriage would lead to protections for speech arising from discrimination against interracial or disabled couples.
The six conservative justices — Samuel Alito, Clarence Thomas, Neil Gorsuch, Amy Coney Barrett, Brett Kavanaugh, and John Roberts — repeatedly revisited the distinction between personalized, custom, commissioned products and goods and services served generally to the public.
Kagan claimed that websites weren’t particularly ideological or religious if there was an absence of explicitly written scripture or ideology. Waggoner disagreed, pointing to the context and message of the speech.
“When you switch out those names, you’re switching out the concept and the message that is in this website,” stated Waggoner. “The same words can convey different meanings.”
Sotomayor insisted that a creator wasn’t issuing speech by merely creating a product like a wedding invitation, but that only the distributor of the invitation was engaging in speech. Sotomayor further indicated that Smith’s work could only be viewed as her speech if she had stated expressly on her business website that her creations constituted her speech. Waggoner disagreed.
“In the same way that is the ghostwriter who writes an anonymous press release or a book. It is still that writer’s speech,” said Waggoner. “I don’t understand. How is this [the creator’s] story? It’s their story. […] It’s the story of the couple.”
Sotomayor questioned if there was a limit to compelling speech, citing examples of marriages between interracial couples or disabled persons. Waggoner said that was different, saying that it was “highly unlikely” that creators would serve certain races of people in certain contexts but not in a marriage.
“You’re not basing it on the nature of the message, you’re basing it on who you’re serving,” argued Sotomayor.
Waggoner contended that Smith has LGBTQ clients for other products, but can’t support same-sex marriage due to her Christian beliefs.
Sotomayor conflated Biblical and non-Biblical issues repeatedly, such as race and ability, insisting that creating content to display representation of a homosexual couple’s relationship wasn’t compelled speech. She compared Smith’s refusal to create a same-sex wedding website to a restaurant owner offering a limited menu to black individuals.
Waggoner said that book authors, newspaper editors, and writers for other types of publications were issuing their speech. Jackson interjected to say that those publication types weren’t “public accommodations in the same way.”
Jackson asked whether a caterer providing food to only Protestant customers would enjoy the same speech protections. She argued that conduct equated speech. Waggoner said no, drawing a distinction between speech and the messaging conveyed through conduct.
Alito questioned whether “plug and play” websites, essentially templates, imposed the same compelled speech issue. Waggoner said that was not the case because a creator wouldn’t be creating speech for the couple.
Barrett asked several hypotheticals: whether Smith would publish a site for a couple who describe their sexuality in a Biblically ambiguous way — “cisgender” and “heterosexual” — or a couple who admitted that they were marrying after cheating on their respective spouses. Waggoner said that Smith wouldn’t.
Waggoner argued that the court offers broad protections for speech arising from personal convictions.
“I think what’s important is the message she’s being asked to create,” stated Waggoner. “She believes that same-sex weddings contradict Scripture. And she’s announcing a concept of marriage that she believes to be false.”
Barrett asked why Smith couldn’t give a homosexual couple a website that was already created for a heterosexual couple. Waggoner said that it wouldn’t be the “same” since Smith would have to incorporate details and photos of the same-sex couple into the site.
“We know context changes meaning, just as Ginsburg said in Yates v. United States,” stated Waggoner.
Barrett asked whether the same could be said of a songwriter licensing an already-published song to a same-sex wedding. Waggoner said that the artist couldn’t because it was already in the stream of commerce, but admitted unfamiliarity with licensing procedures. She clarified that it would be different if the artist were to sing the song at or for the wedding.
Jackson argued that there’s no precedent for this type of case; Olson concurred. Thomas asked Olson to summarize any tradition of public accommodation laws, cases, or common law tradition applying to speech.
“The complicating factor here is this is not a hotel or a restaurant or a riverboat or a train. I’m interested in the intersection of public accommodations law and speech,” said Thomas.
Olson claimed that public accommodation laws don’t carve out exceptions for speech. He said there wasn’t a history of cases in which people asked for these exceptions.
Olson affirmed Sotomayor’s assertion that Smith’s business would be the first public accommodation that could refuse to serve a customer based on race, sex, religion, or sexual orientation.
Kagan asked whether Colorado would allow Smith to refuse a same-sex couple’s request to quote Obergefell v. Hodges on their website: the SCOTUS case requiring states to recognize same-sex marriage. Olson said yes, since she would be denying that request for all customers. Then Kagan asked whether Colorado would allow Smith to refuse a same-sex couple’s request to put “God blesses this union” on their website. Olson said that was different because it implicates free exercise of religion concerns.
“It is a statement of opinion about the nature of this marriage,” said Kagan.
Roberts asked why an individualized, subjective, multi-factor determination in foster care and adoption wouldn’t be the same as a seat on a bus or room in a hotel. Olson said that since Smith engages with customers as a public accommodation, she needs to be held to that discrimination-free standard. Olson characterized Smith’s religious dissent as a “status-based discrimination.”
Olson said that Smith’s business would suffer because she would lose opposite-sex couples upset by her refusal to serve same-sex unions. Alito questioned if businesses were allowed to exercise any kind of selectivity; Olson responded that Alito’s hypothetical required a fact-based analysis.
Alito asked further if selectivity conferred a public service status to businesses. Olson affirmed on the stipulation that selectivity was the only factor in their decision-making, noting that selectivity based on protected characteristics like race or sexual orientation wasn’t allowable.
“The more selective and curated the process is, the less likely it is to be a public accommodation,” stated Olson.
Alito asked whether Jewish photographers could be compelled to photograph for customers using the pictures on the website facilitating affairs, Ashley Madison, which prompted laughter. Olson said they could.
“The website designer can choose to put on their websites whatever they want,” said Olson. “But they just can’t refuse to sell — if they’re a public accommodation — they can’t refuse to sell that website to someone solely because of the customer or couple’s religion.”
Alito then asked if it was fair to equate opposition to same-sex marriage with interracial marriage. Olson responded affirmatively.
“Of course honorable people have different views on this issue,” said Olson. “The way to honor that requirement is as this court has set forth in Fulton, in Masterpiece, is to have a rigorous interrogation to make sure that there are neutral and generally-applicable laws applied in fact that way that don’t single out religion.”
Alito then asked if writers could be forced to write customized wedding vows or speeches containing speech that they loathe. Olson said no, because the speech wouldn’t contain offenses against protected classes. He said that “things that people loathe” wasn’t protected like sex, gender, religion, or discrimination.
Gorsuch asserted that Smith’s customized and personalized products were different from offering general services. Olson argued that allowing Smith that freedom of creation would result in every single same-sex couple being turned away, but Gorsuch disagreed.
“Well, they can ask for what they want but what they get might be another thing,” responded Gorsuch.
Gorsuch asked if speechwriters would be held to the same standard as Smith. Olson said Colorado wouldn’t compel that speechwriter to produce work to which they object.
“You can choose the content of what you say, you just can’t choose who you sell to,” stated Olson.
Gorsuch challenged why a speechwriter would be any different from Smith’s company. Olson claimed that Smith wouldn’t sell a wedding site promoting homosexual unions to same-sex couples, but Gorsuch contended that Smith was refusing to sell sites promoting that content to any customer.
Corinne Murdock is a reporter for AZ Free News. Follow her latest on Twitter, or email tips to corinne@azfreenews.com.
On Thursday, Attorney General Mark Brnovich co-led a 20-state coalition in filing an amicus brief in the Supreme Court case deciding the speech rights of business owners. The coalition filed their amicus brief the day after Pride Month began.
At the heart of the case — 303 Creative v. Elenis — is Colorado businesswoman Lorie Smith, a graphic artist and website designer who refused to design wedding websites for same-sex couples per her religious beliefs. Colorado law C.R.S. 24-34-601 prohibits businesses from discriminating on the basis of sexual orientation, gender identity, and gender expression, even due to religion. The state considers any business that sells to the public or offers services, facilities, privileges, advantages, or accommodations to the public as a “place of public accommodation” and therefore beholden to their anti-discrimination law.
The amicus brief pointed out that Smith provided other services to LGBTQ+ customers, but that her Christian religion prevented her from providing wedding-related services to those customers. It also pointed out that Smith’s hesitation concerned the message she would convey in being forced to do so; in other words, her speech and not the status of a customer.
The Christian Bible dictates that marriage is the union between one man and one woman, and that homosexuality is a sin.
“Colorado interprets its public-accommodation law to forbid Smith from expressing her desired messages about marriage. In its view, graphic artists who create websites celebrating opposite-sex marriages must do the same for same-sex marriages, and refusing to do so subjects those artists to punishment,” read the amicus brief. “By adopting this position, Colorado violates the constitutional rights of its citizens, because the First amendment prohibits States from forcing individuals, including people who create custom speech for a living, to speak in favor of same-sex marriage.”
In a press release, Brnovich asserted that business owners like Smith have a constitutional right to discern speech as part of their business.
“Owners of small companies do not give up their constitutional rights as a cost of doing business,” said Brnovich. “Freedoms of speech, belief, and expression are at the core of who we are as Americans, and our government is out of line to infringe on them.”
“As a Christian artist, I was really excited to step into the wedding industry and use my artistic talents. Except, there’s a Colorado law that prevents me from continuing my work and forces me to violate my beliefs and speak messages I don’t agree with,” stated Smith. “Every American should have the right to control the content of their own speech.”
Nebraska, Alabama, Alaska, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Ohio, Oklahoma, South Carolina, Tennessee, Utah, and West Virginia joined Arizona in the amicus brief.
Corinne Murdock is a reporter for AZ Free News. Follow her latest on Twitter, or email tips to corinne@azfreenews.com.
