United States District Court, D. Colorado
OPINION AND ORDER DENYING MOTION FOR PRELIMINARY
INJUNCTION AND MOTION FOR SUMMARY JUDGMENT
S. KRIEGER CHIEF JUDGE
MATTER comes before the Court on the Plaintiffs'
Motion for Preliminary Injunction (# 6) and
the Plaintiffs' Motion for Summary Judgment (#
48), the corresponding response and reply briefs,
and the parties' recent supplemental briefing (#
Lorie Smith, through her wholly-owned company 303 Creative,
LLC (“303”), is engaged generally in the fields
of graphic design, website design, social media management
and consultation, marketing, branding strategy, and website
management training. This case concerns Ms. Smith's
intention to expand 303's business into the design of
custom websites for customers planning weddings - that is,
websites to keep a couple's friends and family informed
about the upcoming wedding.
Smith describes herself as a Christian and states that her
religious beliefs are central to her identity. She believes
that she must use her talents in a manner that glorifies God
and that she must use her creative talents in operating 303
in a way that she believes will honor and please him.
Consistent with those beliefs, Ms. Smith desire to limit the
scope of her services. Although she is willing to work with
all people regardless of their race, religion, gender, and
sexual orientation, she “will decline any request to
design, create, or promote content that: contradicts biblical
truth; demeans or disparages others; promotes sexual
immorality; supports the destruction of unborn children;
incites violence; or promotes any conception of marriage
other than marriage between one man and one woman.”
This restriction precludes provision of wedding website
services for same-sex couples.
Smith has prepared a proposed statement (“the
Statement”) that she intends to post on 303's
website to explain 303's policies: It reads:
I love weddings.
Each wedding is a story in itself, the story of a couple and
their special love for each other.
I have the privilege of telling the story of your love and
commitment by designing a stunning website that promotes your
special day and communicates a unique story about your
wedding -from the tale of the engagement, to the excitement
of the wedding day, to the beautiful life you are building
I firmly believe that God is calling me to this work. Why? I
am personally convicted that He wants me - during these
uncertain times for those who believe in biblical marriage -
to shine His light and not stay silent. He is calling me to
stand up for my faith, to explain His true story about
marriage, and to use the talents and business He gave me to
publicly proclaim and celebrate His design for marriage as a
life-long union between one man and one woman.
These same religious convictions that motivate me also
prevent me from creating websites promoting and celebrating
ideas or messages that violate my beliefs. So I will not be
able to create websites for same-sex marriages or any other
marriage that is not between one man and one woman. Doing
that would compromise my Christian witness and tell a story
about marriage that contradicts God's true story of
marriage-the very story He is calling me to promote.
Smith acknowledges that her intended website activities
conflict with Colorado law, specifically C.R.S. §
24-34-601(2). That statute provides:
It is a discriminatory practice and unlawful for a person
… directly or indirectly, to publish . . . any
written, electronic, or printed communication, notice, or
advertisement 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, withheld from, or denied an
individual or that an individual's patronage or presence
at a place of public accommodation is unwelcome,
objectionable, unacceptable, or undesirable because of . . .
sexual orientation. (Hereafter, the “Communication
of the Communications Clauses are enforced administratively
by the Colorado Civil Rights Commission (“CCRC”)
and may be independently prosecuted by the Colorado Attorney
that these provisions of Colorado law abridge her rights
under the U.S. Constitution, Ms. Smith commenced this action
against the Defendants, the members of the CCRC (in their
official capacities), and against Phil Weiser, Colorado's
current Attorney General (also in his official capacity). At
present, Ms. Smith asserts a challenge to the Communication
Clause, contending that it violates the Free Speech, Free
Press, and Free Exercise clauses of the First Amendment to
the U.S. Constitution, and the Equal Protection and Due
Process clauses of the Fourteenth Amendment. Because Ms.
Smith has tendered the specific content of the Statement she
intends to post, the Court treats her claims as asserting an
with the Complaint, Ms. Smith sought a preliminary injunction
(#6) to restrain the CCRC from enforcing the
Communication Clause against her and 303. The parties
eventually agreed that the Motion for Preliminary Injunction
should be determined in conjunction with a determination on
the merits through the mechanism of summary judgment.
Consequently, the Plaintiffs filed their Motion for Summary
Judgment (#48), and the parties filed
stipulated facts (#49). Those facts are
deemed incorporated herein and discussed in more detail
briefing was completed, the United States Supreme Court
granted certiorari in a case involving similar facts and
legal issues and raising issues of the constitutionality of
the Public Accommodation Statute. This Court deferred
consideration of the issues in this case, anticipating a
dispositive substantive ruling by the Supreme Court on the
issues presented here. However, in Masterpiece Cakeshop,
Ltd. v. Colorado Civil Rights Com'n, , 138 S.Ct.
1719 (2018), the Supreme Court avoided a ruling on the
merits, returning the case to the lower courts. In light of
the Masterpiece decision (and other decisions by the
Supreme Court during the same term), the parties filed
supplemental briefs (# 67, 68). The motions
for preliminary injunction and summary judgment motions in
this case are now ripe for determination.
purposes of this ruling, the Court need only evaluate Ms.
Smith's summary judgment motion. That motion was filed prior
to the Court's dismissal of any Accommodation Clause
challenge, making it somewhat difficult to extract those
remaining arguments that remain pertinent to the
Communication Clause itself. It appears to the Court that Ms.
Smith alleges that: (i) the CCRC's anticipated
application of the Communication Clause to her Statement
violates the Equal Protection clause of the 14th
Amendment to the U.S. Constitution because the CCRC does not
prosecute similarly-situated businesses expressing different
religious beliefs; (ii) the Communication Clause violates the
Substantive Due Process clause, in that it is vague and
overbroad; (iii) the Communication Clause violates an
otherwise unspecified constitutional right to “personal
autonomy”; (iv) the Communication clause violates Ms.
Smith's free speech rights in various ways, in violation
of the First Amendment; and (iv) the Communication Clause
constitutes a substantial burden on Ms. Smith's free
exercise of religion, as guaranteed by the First Amendment,
and does not survive strict scrutiny.
Court begins by recognizing certain facts that are not in
dispute. As is clear under the Public Accommodations Law, the
Colorado legislature has determined that discrimination
against persons on the basis of sexual orientation is
contrary to the public interest and thus, is prohibited in
this state. This case does not invite this Court to weigh in
on whether that law reflects sound policy or not. Rather, it
is simply a fact: it is an unlawful act for a person to
discriminate against others on the basis of sexual
orientation in Colorado in the circumstances covered by the
Public Accommodations Law.
addition, it appears to be undisputed that the act Ms. Smith
wishes to engage in - posting the Statement on her website
-would violate the Communication Clause. Ms. Smith concedes
that the Statement “indicates that the full and equal
enjoyment of the services” that 303 provides
“will be withheld from [potential customers] because of
sexual orientation” -specifically, that same-sex
couples could not hire 303 to design a website for their
wedding, even though opposite-sex couples could.
Court also emphasizes that it is not deciding whether Ms.
Smith has a colorable constitutional right to refuse to
provide wedding website services to same-sex couples. That
question implicates the Accommodation Clause of the Public
Accommodations Law which is not challenged. Instead, in this
action the Court is limited to analyzing the
constitutionality of the application of the Communication
Clause. Thus, the analysis is extremely narrow. The Court
assumes the constitutionality of the Accommodation Clause
which prohibits discrimination against same-sex couples in
the creation of wedding websites. The only question presented
at this juncture is whether the Communication Clause
unconstitutionally prohibits Ms. Smith from posting the
Statement, which promises (or, if one would prefer,
threatens) prospective customers that she will refuse service
to customers who wish her to create a wedding website for a
this issue the parties have stipulated to all pertinent
facts, the Court applies the law to those facts to render a
determination on the Plaintiffs' summary judgment motion.
Summary judgment standard
of the Federal Rules of Civil Procedure facilitates the entry
of a judgment only if no trial is necessary. See White v.
York Intern. Corp., 45 F.3d 357, 360 (10th Cir. 1995).
Summary adjudication is authorized when there is no genuine
dispute as to any material fact and a party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). Substantive
law governs what facts are material and what issues must be
determined. It also specifies the elements that must be
proved for a given claim or defense, sets the standard of
proof and identifies the party with the burden of proof.
See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986); Kaiser-Francis Oil Co. v.
Producer's Gas Co., 870 F.2d 563, 565 (10th Cir.
1989). A factual dispute is “genuine” and summary
judgment is precluded if the evidence presented in support of
and opposition to the motion is so contradictory that, if
presented at trial, a judgment could enter for either party.
See Anderson, 477 U.S. at 248. When considering a
summary judgment motion, a court views all evidence in the
light most favorable to the non-moving party, thereby
favoring the right to a trial. See Garrett v. Hewlett
Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002).
movant has the burden of proof on a claim or defense, the
movant must establish every element of its claim or defense
by sufficient, competent evidence. See Fed. R. Civ.
P. 56(c)(1)(A). Once the moving party has met its burden, to
avoid summary judgment the responding party must present
sufficient, competent, contradictory evidence to establish a
genuine factual dispute. See Bacchus Indus., Inc. v.
Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991);
Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir.
1999). If there is a genuine dispute as to a material fact, a
trial is ...