In a brief filed with the U.S. Supreme Court on Friday, Colorado Attorney General Phil Weiser argued that a web design firm’s decision to preemptively deny services to like-minded couples gender violates state anti-discrimination law.
The high court will consider 303 Creative v. Elenis in his next term, which begins in October. The Colorado-based design company wants to expand its services to wedding website design, but doesn’t 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 based on their sexual orientation. It is not equal treatment under the law. Customers can choose whether or not to buy the company’s wedding designs – that’s how the marketplace works. But because it’s open to the public, 303 can’t choose who its customers are,” Weiser told reporters on Friday.
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He said the law allows companies to freely decide on their own products and services. A Jewish bakery, for example, might decide to sell only traditionally Jewish baked goods. A wildlife photographer may decide to limit their services to pets only. But once a company offers its service to the public, it must also offer it.
“The Hosting Clause is not intended to suppress any message the company may express,” Weiser wrote in the filed brief. “The Company is free to decide what design services to offer and whether or not to communicate its vision of marriage through Bible quotes on its wedding websites. The law only requires the Company to sell any product or service it offers. to all, regardless of the protected characteristics of its customers.
303 Creative has not yet designed a wedding website or asked a same-sex couple to have one.
“We know that in the past people have been excluded from businesses and access to goods and services because of their race, sex, religion, sexual orientation or gender identity. This exclusion causes real harm, both to the economic vitality of our state and to our commitment and lived experience of equal protection under the law,” Weiser said.
The issue before the court is whether the state law violates the First Amendment’s free speech clause. The federal district court and the 10th Circuit Court of Appeals both ruled that the state’s anti-discrimination law was constitutional.
“We have seen over decades and decades that the Supreme Court has maintained this line that we are moving forward in this case,” Weiser said in response to a question about the discussion of this case in a court with a conservative majority that recently canceled previous.
“Regulating conduct to prohibit discrimination is a protected activity, and it’s really critical that we don’t break that line,” he said.
Colorado Solicitor General Eric Olson will argue on behalf of the state in the Supreme Court. The dates for the pleadings have not been set.