throbber
Appellate Case: 19-1413 Document: 010110553596 Date Filed: 07/26/2021 Page: 1
`FILED
`United States Court of Appeals
`Tenth Circuit
`PUBLISH
`
`
`July 26, 2021
`UNITED STATES COURT OF APPEALS
`
`
`Christopher M. Wolpert
`FOR THE TENTH CIRCUIT
`Clerk of Court
`_________________________________
`
`
`
`
`
`
`No. 19-1413
`
`
`303 CREATIVE LLC, a limited liability
`company; LORIE SMITH,
`
` Plaintiffs - Appellants,
`
`v.
`
`AUBREY ELENIS; CHARLES GARCIA;
`AJAY MENON; MIGUEL RENE ELIAS;
`RICHARD LEWIS; KENDRA
`ANDERSON; SERGIO CORDOVA;
`JESSICA POCOCK; PHIL WEISER,
`
` Defendants - Appellees.
`
`------------------------------
`
`FOUNDATION FOR MORAL LAW;
`CATO INSTITUTE; CENTER FOR
`RELIGIOUS EXPRESSION;
`CATHOLICVOTE.ORG EDUCATION
`FUND; LAW AND ECONOMIC
`SCHOLARS; TYNDALE HOUSE
`PUBLISHERS; CROSSROADS
`PRODUCTIONS, INC., d/b/a Catholic
`Creatives; WHITAKER PORTRAIT
`DESIGN, INC., d/b/a Christian
`Professional Photographers; THE BRINER
`INSTITUTE, INC.; STATE OF
`ARIZONA; STATE OF ALABAMA;
`STATE OF ALASKA; STATE OF
`ARKANSAS; STATE OF KENTUCKY;
`STATE OF LOUISIANA; STATE OF
`MISSOURI; STATE OF MONTANA;
`STATE OF NEBRASKA; STATE OF
`OKLAHOMA; STATE OF SOUTH
`
`
`
`
`
`

`

`Appellate Case: 19-1413 Document: 010110553596 Date Filed: 07/26/2021 Page: 2
`
`CAROLINA; STATE OF TENNESSEE;
`STATE OF TEXAS; STATE OF WEST
`VIRGINIA; ROBERT P. GEORGE,
`Professor; AMERICAN CIVIL
`LIBERTIES UNION OF COLORADO;
`AMERICAN CIVIL LIBERTIES UNION
`FOUNDATION; AMERICANS UNITED
`FOR SEPARATION OF CHURCH AND
`STATE; ANTI-DEFAMATION LEAGUE;
`BEND THE ARC: A JEWISH
`PARTNERSHIP FOR JUSTICE;
`CENTRAL CONFERENCE OF
`AMERICAN RABBIS; GLOBAL
`JUSTICE INSTITUTE, METROPOLITAN
`COMMUNITY CHURCHES;
`HADASSAH, THE WOMEN'S ZIONIST
`ORGANIZATION OF AMERICA, INC.;
`HINDU AMERICAN FOUNDATION;
`INTERFAITH ALLIANCE
`FOUNDATION; INTERFAITH
`ALLIANCE OF COLORADO; MEN OF
`REFORM JUDAISM; PEOPLE FOR THE
`AMERICAN WAY FOUNDATION;
`RECONSTRUCTIONIST RABBINICAL
`ASSOCIATION; SIKH COALITION;
`WOMEN OF REFORM JUDAISM;
`UNION FOR REFORM JUDAISM;
`STATE OF MASSACHUSETTS; STATE
`OF CALIFORNIA; STATE OF
`CONNECTICUT; STATE OF
`DELAWARE; DISTRICT OF
`COLUMBIA; STATE OF HAWAII;
`STATE OF ILLINOIS; STATE OF
`MAINE; STATE OF MARYLAND;
`STATE OF MINNESOTA; STATE OF
`NEVADA; STATE OF NEW JERSEY;
`STATE OF NEW MEXICO; STATE OF
`NEW YORK; STATE OF NORTH
`CAROLINA; STATE OF OREGON;
`STATE OF PENNSYLVANIA; STATE
`OF RHODE ISLAND; STATE OF
`VERMONT; STATE OF VIRGINIA;
`STATE OF WASHINGTON; LAW
`
`
`
`2
`
`

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`Appellate Case: 19-1413 Document: 010110553596 Date Filed: 07/26/2021 Page: 3
`
`PROFESSORS OF THE STATE OF
`COLORADO; LAW PROFESSORS
`FROM THE STATE OF KANSAS; LAW
`PROFESSORS FROM THE STATE OF
`NEW MEXICO; LAW PROFESSORS
`FROM THE STATE OF OKLAHOMA;
`LAW PROFESSORS FROM THE STATE
`OF UTAH; LAW PROFESSORS FROM
`THE STATE OF WYOMING;
`LAWYERS' COMMITTEE FOR CIVIL
`RIGHTS UNDER LAW; SOUTHERN
`POVERTY LAW CENTER; ASIAN
`AMERICAN LEGAL DEFENSE &
`EDUCATION FUND; LATINOJUSTICE
`PRLDEF; LEADERSHIP CONFERENCE
`ON CIVIL AND HUMAN RIGHTS;
`NATIONAL ACTION NETWORK; THE
`CENTER FOR CONSTITUTIONAL
`RIGHTS; CENTER FOR
`CONSITUTIONAL RIGHTS; FLOYD
`ABRAMS; ERWIN CHEMERINSKY;
`WALTER DELLINGER; KERMIT
`ROOSEVELT; AMANDA SHANOR;
`REBECCA TUSHNET; MAX H.
`BAZERMAN; MONICA C. BELL; ISSA
`KOHLER-HAUSMANN; DAVID
`LAIBSON; ADAM J. LEVITIN; MARY-
`HUNTER MCDONNELL; NEERU
`PAHARIA; NINA STROHMINGER;
`TOM R. TYLER; LAUREN E. WILLIS;
`LAMBDA LEGAL DEFENSE &
`EDUCATION FUND, INC.,
`
` Amici Curiae.
`
`_________________________________
`
`Appeal from the United States District Court
`for the District of Colorado
`(D.C. No. 1:16-CV-02372-MSK-CBS)
`_________________________________
`
`Kristin K. Waggoner (Jonathan A. Scruggs and Katherine L. Anderson, Alliance
`Defending Freedom, Scottsdale, Arizona; David A. Cortman and John J. Bursch, Alliance
`3
`
`
`
`

`

`Appellate Case: 19-1413 Document: 010110553596 Date Filed: 07/26/2021 Page: 4
`
`Defending Freedom, Washington, DC, with her on the briefs), Alliance Defending
`Freedom, Scottsdale, Arizona, appearing for Plaintiffs-Appellants.
`
`Eric R. Olson, Solicitor General (Phillip J. Weiser, Colorado Attorney General; Billy Lee
`Seiber, First Assistant Attorney General; Jack D. Patten, III, Senior Assistant Attorney
`General; Vincent E. Morscher and Skippere S. Spear, with him on the brief), Colorado
`Department of Law, Denver, Colorado, appearing for Defendants-Appellees.
`_________________________________
`
`Before TYMKOVICH, Chief Judge, BRISCOE, and MURPHY, Circuit Judges.
`_________________________________
`
`BRISCOE, Circuit Judge.
`________________________________
`
`I.
`
`Introduction
`
`Appellants Lorie Smith and her website design company 303 Creative, LLC
`
`(collectively, “Appellants”) appeal the district court’s grant of summary judgment in
`
`favor of Appellees Aubrey Elenis, Director of the Colorado Civil Rights Division
`
`(the “Director”), Anthony Aragon, Ulysses J. Chaney, Miguel Rene Elias, Carol
`
`Fabrizio, Heidi Hess, Rita Lewis, and Jessica Pocock, members of the Colorado Civil
`
`Rights Commission (the “Commission”), and Phil Weiser, Colorado Attorney
`
`General (collectively, “Colorado”). Appellants challenge Colorado’s Anti-
`
`Discrimination Act (“CADA”) on free speech, free exercise, and vagueness and
`
`overbreadth grounds.
`
`As to our jurisdiction, we hold that Appellants have standing to challenge
`
`CADA. As to the merits, we hold that CADA satisfies strict scrutiny, and thus
`
`permissibly compels Appellants’ speech. We also hold that CADA is a neutral law
`
`of general applicability, and that it is not unconstitutionally vague or overbroad.
`
`
`
`4
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`Appellate Case: 19-1413 Document: 010110553596 Date Filed: 07/26/2021 Page: 5
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`Accordingly, exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district
`
`court’s grant of summary judgment in favor of Colorado.
`
`II. Background
`
`A. Factual Background
`
`1. CADA
`
`CADA restricts a public accommodation’s ability to refuse to provide services
`
`based on a customer’s identity. Specifically, CADA defines a public accommodation
`
`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.” Colo.
`
`Rev. Stat. § 24-34-601(1). Exempted from CADA’s definition of public
`
`accommodations are places that are “principally used for religious purposes.” Id.
`
`Under CADA’s “Accommodation Clause,” a public accommodation may not:
`
`directly or indirectly . . . refuse . . . to an individual or a
`group, because of . . . sexual orientation . . . the full and
`equal enjoyment of the goods, services, facilities, privileges,
`advantages, or accommodations of a place of public
`accommodation . . . .
`
`Colo. Rev. Stat. § 24-34-601(2)(a).
`
`Under CADA’s “Communication Clause,” a public accommodation also may
`
`not:
`
`
`
`directly or indirectly . . . publish . . . any . . . communication
`. . . 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 . . . or that an individual’s patronage . . . is
`unwelcome, objectionable, unacceptable, or undesirable
`because of . . . sexual orientation . . . .
`
`5
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`Appellate Case: 19-1413 Document: 010110553596 Date Filed: 07/26/2021 Page: 6
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`Id.
`
`CADA exempts certain sex-based restrictions from the Accommodation Clause
`
`and Communication Clause. Specifically, under CADA, “it is not a discriminatory
`
`practice for a person to restrict admission to a place of public accommodation to
`
`individuals of one sex if such restriction has a bona fide relationship to the goods,
`
`services, facilities, privileges, advantages, or accommodations of such place of public
`
`accommodation.” Colo. Rev. Stat. § 24-34-601(3).
`
`CADA provides several different means of enforcement. A person alleging a
`
`violation of CADA can bring a civil action in state court. The state court may levy a
`
`fine of “not less than fifty dollars nor more than five hundred dollars for each
`
`violation.” Colo. Rev. Stat. § 24-34-602(1)(a). A complainant can also file charges
`
`alleging discrimination with the Colorado Civil Rights Division. The Commission,
`
`individual Commissioners, or the Colorado Attorney General may also independently
`
`file charges alleging discrimination “when they determine that the alleged
`
`discriminatory or unfair practice imposes a significant societal or community
`
`impact.” Aplts.’ App. at 2-315, ¶ 7. The Director of the Civil Rights Division then
`
`investigates the allegations and determines whether the charge is supported by
`
`probable cause. If probable cause is found, the Director provides the parties with
`
`written notice and commences a compulsory mediation. If mediation fails, a hearing
`
`may be held before the Colorado Civil Rights Commission, a single Commissioner,
`
`or an administrative law judge. If a violation is found after a hearing, the
`
`
`
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`Appellate Case: 19-1413 Document: 010110553596 Date Filed: 07/26/2021 Page: 7
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`Commission may issue a cease and desist order against the offending public
`
`accommodation.
`
`In a different case, Colorado enforced CADA against a bakery that, because of
`
`its owner’s religious beliefs, refused to provide custom cakes that celebrated same-
`
`sex marriages. That case eventually made its way up to the United States Supreme
`
`Court, where the Court ruled in favor of the baker. See Masterpiece Cakeshop, Ltd.
`
`v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719 (2018). There, the Court held that
`
`Colorado violated the Free Exercise Clause by enforcing CADA in a manner
`
`“inconsistent with the State’s obligation of religious neutrality.” Id. at 1723. The
`
`Court relied, in part, on statements made by a Commissioner who disparaged the
`
`baker’s religious beliefs when the Commission adjudicated that case. Id. at 1729.
`
`The Court also noted that, on at least three other occasions, Colorado declined to
`
`enforce CADA against other bakers who refused to create custom cakes that
`
`disparaged same-sex marriages. Id. at 1730.
`
`At a public meeting held a few days after the Court’s ruling in Masterpiece
`
`Cakeshop, a single Commissioner opined that, despite the Court’s ruling, the
`
`Commissioner who was referenced in Masterpiece Cakeshop did not say “anything
`
`wrong.” Aplts.’ App. at 3-609. Others at that hearing, however, including Director
`
`Elenis, voiced agreement with the Court’s ruling and their commitment to follow that
`
`ruling. See, e.g., id. at 3-606 (Director Elenis: “So in these cases going forward,
`
`Commissioners and ALJs and others, including the Staff at the Division, have to be
`
`
`
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`Appellate Case: 19-1413 Document: 010110553596 Date Filed: 07/26/2021 Page: 8
`
`careful how these issues are framed so that it’s clear that full consideration was given
`
`to sincerely—what is termed as sincerely-held religious objections.”).
`
`2. Appellants
`
`303 Creative is a for-profit, graphic and website design company; Ms. Smith is
`
`its founder and sole member-owner. Appellants are willing to work with all people
`
`regardless of sexual orientation. Appellants are also generally willing to create
`
`graphics or websites for lesbian, gay, bisexual, or transgender (“LGBT”) customers.
`
`Ms. Smith sincerely believes, however, that same-sex marriage conflicts with God’s
`
`will. Appellants do not yet offer wedding-related services but intend to do so in the
`
`future. Consistent with Ms. Smith’s religious beliefs, Appellants intend to offer
`
`wedding websites that celebrate opposite-sex marriages but intend to refuse to create
`
`similar websites that celebrate same-sex marriages. Appellants’ objection is based on
`
`the message of the specific website; Appellants will not create a website celebrating
`
`same-sex marriage regardless of whether the customer is the same-sex couple
`
`themselves, a heterosexual friend of the couple, or even a disinterested wedding
`
`planner requesting a mock-up. As part of the expansion, Appellants also intend to
`
`publish a statement explaining Ms. Smith’s religious objections (the “Proposed
`
`Statement”):
`
`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
`
`
`
`8
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`

`Appellate Case: 19-1413 Document: 010110553596 Date Filed: 07/26/2021 Page: 9
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`about marriage that contradicts God’s true story of marriage –
`the very story He is calling me to promote.
`
`Aplts.’ App. at 2-326 (¶ 91).
`
`Appellants have not yet offered wedding-related services, or published the
`
`Proposed Statement, because Appellants are unwilling to violate CADA.
`
`B. Procedural Background
`
`Appellants brought a pre-enforcement challenge to CADA in the United States
`
`District Court for the District of Colorado. Appellants alleged a variety of
`
`constitutional violations, including that CADA’s Accommodation Clause and
`
`Communication Clause violated the Free Speech and Free Exercise Clauses of the
`
`First Amendment, and that CADA’s Communication Clause violated the Due Process
`
`Clause of the Fourteenth Amendment because it was facially overbroad and vague.
`
`Colorado moved to dismiss. At a motions hearing, both parties agreed there were no
`
`disputed material facts and that the matter should be resolved through summary
`
`judgment.
`
`After summary judgment briefing had concluded, the district court found that
`
`Appellants only established standing to challenge the Communication Clause, and
`
`not the Accommodation Clause. The district court initially declined to rule on the
`
`merits of Appellants’ Communication Clause challenges, however, because
`
`Masterpiece Cakeshop was then pending before the United States Supreme Court.
`
`After the Supreme Court’s ruling in Masterpiece Cakeshop, the district court denied
`
`Appellants’ summary judgment motion on its Communication Clause challenges. In
`
`
`
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`Appellate Case: 19-1413 Document: 010110553596 Date Filed: 07/26/2021 Page: 10
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`doing so, the district court “assume[d] the constitutionality of the Accommodation
`
`Clause . . . .” Id. at 3-568. The district court also ordered Appellants to show cause
`
`why final judgment should not be granted in favor of Colorado. Id. at 3-588. After
`
`additional briefing, the district court granted summary judgment in favor of
`
`Colorado.
`
`Appellants timely appealed the district court’s final judgment. They assert that
`
`the district court erred (1) in determining that Appellants lack standing to challenge
`
`the Accommodation Clause; (2) in assuming the Accommodation Clause does not
`
`compel speech and in ruling that the Communication Clause does not compel speech;
`
`(3) in rejecting Appellants’ Free Exercise challenges to both Clauses; and (4) in
`
`rejecting Appellants’ overbreadth and vagueness challenges to the Communication
`
`Clause.
`
`A. Standard of Review
`
`III. Analysis
`
`Summary judgment is warranted when the movant is entitled to “judgment as a
`
`matter of law” in the absence of a “genuine dispute as to any material fact.” Fed. R.
`
`Civ. P. 56(a). We review the entry of summary judgment de novo, “applying the
`
`same standard for summary judgment that applied in the district court.” Sandoval v.
`
`Unum Life Ins. Co. of Am., 952 F.3d 1233, 1236 (10th Cir. 2020); see also Lincoln v.
`
`BNSF Ry. Co., 900 F.3d 1166, 1180 (10th Cir. 2018) (stating that when reviewing
`
`summary judgment “we need not defer to factual findings rendered by the district
`
`court”) (citation and internal quotation marks omitted). We view the evidence and
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`Appellate Case: 19-1413 Document: 010110553596 Date Filed: 07/26/2021 Page: 11
`
`draw all reasonable inferences in favor of the non-movant. Anderson v. Liberty
`
`Lobby, Inc., 477 U.S. 242, 255 (1986). Where the activity in question is arguably
`
`protected by the First Amendment, the court has “an obligation to make an
`
`independent examination of the whole record in order to make sure that the judgment
`
`does not constitute a forbidden intrusion on the field of free expression.” Citizens for
`
`Peace in Space v. City of Colo. Springs, 477 F.3d 1212, 1219 (10th Cir. 2007)
`
`(quoting Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499
`
`(1984)).
`
`B. Standing
`
`“Standing is a jurisdictional issue that may be raised by the court at any time.”
`
`Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d 487, 492 (10th Cir. 1998).
`
`Whether a party has standing is a question of law reviewed de novo. Comm. to Save
`
`the Rio Hondo v. Lucero, 102 F.3d 445, 447 (10th Cir. 1996).
`
`“Article III of the Constitution limits the jurisdiction of federal courts to
`
`‘Cases’ and ‘Controversies.’” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157
`
`(2014) (quoting U.S. Const. art. III, § 2). The doctrine of standing serves as “[o]ne
`
`of those landmarks” in identifying “the ‘Cases’ and ‘Controversies’ that are of the
`
`justiciable sort referred to in Article III.” Lujan v. Defenders of Wildlife, 504 U.S.
`
`555, 560 (1992). Under Article III, standing requires at least three elements: injury
`
`in fact, causation, and redressability. Id. at 560–61.
`
`
`
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`
`1. Injury in Fact
`
`An injury in fact is “an invasion of a legally protected interest which is
`
`(a) concrete and particularized and (b) actual or imminent, not conjectural or
`
`hypothetical.” Initiative and Referendum Inst. v. Walker, 450 F.3d 1082, 1087 (10th
`
`Cir. 2006) (en banc) (quoting Lujan, 504 U.S. at 560). In the context of a
`
`pre-enforcement challenge, to show an injury in fact, a party must allege “an
`
`intention to engage in a course of conduct arguably affected with a constitutional
`
`interest, but proscribed by a statute, and there exists a credible threat of prosecution
`
`thereunder.” SBA List, 573 U.S. at 159 (quoting Babbitt v. Farm Workers, 442 U.S.
`
`289, 298 (1979)); see also Colo. Outfitters Ass’n v. Hickenlooper, 823 F.3d 537, 545
`
`(10th Cir. 2016). Article III does not require the plaintiff to risk “an actual arrest,
`
`prosecution, or other enforcement action.” SBA List, 573 U.S. at 158 (citing Steffel v.
`
`Thompson, 415 U.S. 452, 459 (1974)).
`
`Reviewing the issue de novo, we conclude that Appellants have shown an
`
`injury in fact. Appellants have sufficiently demonstrated both an intent to provide
`
`graphic and web design services to the public in a manner that exposes them to
`
`CADA liability, and a credible threat that Colorado will prosecute them under that
`
`statute.
`
`Although not challenged by Colorado, see Colorado’s Br. at 26, we are
`
`satisfied that Appellants have shown an “intention to engage in a course of conduct
`
`arguably affected with a constitutional interest.” SBA List, 573 U.S. at 159.
`
`Although Appellants have not yet offered wedding website services, Ms. Smith has
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`Appellate Case: 19-1413 Document: 010110553596 Date Filed: 07/26/2021 Page: 13
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`been employed as a graphic and web designer in the past. Appellants have also
`
`provided clear examples of the types of websites they intend to provide, as well as
`
`the intended changes to 303 Creative’s webpage. And Ms. Smith holds a sincere
`
`religious belief that prevents her from creating websites that celebrate same-sex
`
`marriages.
`
`We are also satisfied that Appellants’ intended “course of conduct”1 is at least
`
`“arguably . . . proscribed by [the] statute,” i.e., CADA. SBA List, 573 U.S. at 162
`
`(alterations in original). In briefing the merits of its claims, Appellants, somewhat
`
`contradictorily, assert that “Colorado concedes that [Appellants] serve[] regardless of
`
`status, do[] not discriminate against LGBT persons, and make[] only message-based
`
`referrals.” Aplts.’ Br. at 31–32. True enough, the parties stipulated to the district
`
`court that Appellants are “willing to work with all people regardless of classifications
`
`such as race, creed, sexual orientation, and gender.” Aplts.’ App. at 2-322 (¶ 64).
`
`Thus, it might appear that Appellants have no exposure to liability under CADA.
`
`Although neither party presses this argument on appeal, we address it to assure
`
`ourselves of jurisdiction. Buchwald, 159 F.3d at 492.
`
`To be sure, some of Appellants’ intended course of conduct would not violate
`
`CADA, and thus would not give rise to standing. For example, Appellants are
`
`willing to “create custom graphics and websites for gay, lesbian, or bisexual clients
`
`
`1 We refer to Appellants’ “course of conduct” in applying the standard under
`SBA List for determining Article III standing; our discussion as to standing does not
`indicate whether Appellants’ “course of conduct” is speech or commercial conduct.
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`Appellate Case: 19-1413 Document: 010110553596 Date Filed: 07/26/2021 Page: 14
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`. . . so long as the custom graphics and websites do not violate [Appellants’] religious
`
`beliefs, as is true for all customers.” Aplts.’ App. 2-322 (¶ 65). Thus, Appellants are
`
`not injured because CADA might “compel” them to create a website announcing a
`
`birthday party for a gay man; that is something Appellants would do willingly. Nor
`
`are Appellants injured because CADA might “compel” them to create a website
`
`announcing “God is Dead”; Colorado concedes CADA would not apply if Appellants
`
`would not produce such a website for any customers. See Colorado’s Br. at 42. But,
`
`of course, neither birthday parties nor Nietzschean pronouncements are the focus of
`
`Appellants’ challenge.
`
`Setting aside other hypotheticals, we focus on what is to us the most obvious
`
`scenario: Appellants refuse a same-sex couple’s request for a website celebrating
`
`their wedding but accept an opposite-sex couple’s identical request for a website
`
`celebrating their wedding. Considering this scenario, Appellants’ injury becomes
`
`clear. Although Appellants might comply with CADA in other circumstances, at
`
`least some of Appellants’ intended course of conduct arguably would “deny to an
`
`individual . . . because of . . . sexual orientation . . . the full and equal enjoyment of
`
`[goods and services].” Colo. Rev. Stat. § 24-34-601(2)(a).
`
`A couple’s request for a wedding website is, at least arguably, “inextricably
`
`bound up with” the couple’s sexual orientation. Bostock v. Clayton Cnty., Ga., 140
`
`S. Ct. 1731, 1742 (2020). As the Supreme Court explained in Bostock, “[an]
`
`employer’s ultimate goal might be to discriminate on the basis of sexual orientation.
`
`But to achieve that purpose the employer must, along the way, intentionally treat an
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`employee worse based in part on that individual’s sex.” Id. So too here—although
`
`Appellants’ “ultimate goal” might be to only discriminate against same-sex marriage,
`
`to do so Appellants might also discriminate against same-sex couples. As a result,
`
`Appellants’ refusal may be “because of” the customers’ sexual orientation, and
`
`thereby expose them to liability under CADA. See also Lawrence v. Texas, 539 U.S.
`
`558, 583 (2003) (O’Connor, J., concurring) (anti-sodomy law does not target
`
`“conduct,” but “is instead directed toward gay persons as a class”). We do not decide
`
`whether Appellants’ (or any other businesses’) conscience- or message-based
`
`objections are a defense against CADA; we only hold that such objections are at least
`
`“arguably . . . proscribed by [the] statute.” SBA List, 573 U.S. at 162 (quoting
`
`Babbitt, 442 U.S. at 298) (alterations in original).
`
`Colorado asserts that, even if Appellants have shown an intent to violate
`
`CADA, Appellants have not shown a credible threat of prosecution. Specifically,
`
`Colorado questions whether Appellants will “actually den[y] services based on a
`
`person’s sexual orientation” and whether such a person will “file[] a charge of
`
`discrimination.” Colorado’s Br. at 27; see also id. at 33–35. According to Colorado,
`
`Appellants’ fear of prosecution is not credible because it requires the court to
`
`speculate about the actions of Appellants’ would-be customers.
`
`We disagree. Appellants have a credible fear of prosecution because
`
`Appellants’ liability under CADA and Colorado’s enforcement of CADA are both
`
`“sufficiently imminent.” SBA List, 573 U.S. at 159. Appellants’ potential liability is
`
`inherent in the manner they intend to operate—excluding customers who celebrate
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`Appellate Case: 19-1413 Document: 010110553596 Date Filed: 07/26/2021 Page: 16
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`same-sex marriages. Thus, Appellants are rightfully wary of offering
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`wedding-related services and may challenge CADA as chilling their speech. See id.
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`at 163 (“Nothing in this Court’s decisions require a plaintiff who wishes to challenge
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`the constitutionality of a law to confess that he will in fact violate that law.”); also
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`Walker, 450 F.3d at 1089 (pre-enforcement plaintiff need not show “a present
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`intention to engage in [proscribed] speech at a specific time in the future”).
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`Contrary to Colorado’s assertion, Appellants’ fears do not “rest[] on
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`guesswork” or “a highly attenuated chain of possibilities.” Colorado’s Br. at 29. If
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`anything, it is Colorado that invites this court to speculate. Assuming Appellants
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`offer wedding-related services to the public as they say they will, there is no reason
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`to then conclude that Appellants will fail to attract customers. Nor is there reason to
`
`conclude that only customers celebrating opposite-sex marriages will request
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`Appellants’ services. In short, we find nothing “imaginary or speculative” about
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`Appellants’ apprehensions that they may violate CADA if they offer wedding-based
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`services in the manner that they intend. SBA List, 573 U.S. at 165.
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`If Appellants violate CADA, it is also “sufficiently imminent” that Colorado
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`will enforce that statute against Appellants. In SBA List, the Supreme Court
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`described at least three factors to be used in determining a credible fear of
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`prosecution: (1) whether the plaintiff showed “past enforcement against the same
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`conduct”; (2) whether authority to initiate charges was “not limited to a prosecutor or
`
`an agency” and, instead, “any person” could file a complaint against the plaintiffs;
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`and (3) whether the state disavowed future enforcement. Id. at 164–65.
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`Appellate Case: 19-1413 Document: 010110553596 Date Filed: 07/26/2021 Page: 17
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`All three factors indicate Appellants have a credible fear of prosecution. First,
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`Colorado has a history of past enforcement against nearly identical conduct—i.e.,
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`Masterpiece Cakeshop, which, at the time Appellants filed their complaint, had been
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`litigated through various state administrative and court proceedings for over two
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`years. Aplts.’ App. at 2-317 (¶ 25). Although Appellants create websites—not
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`cakes—this distinction does not diminish Appellants’ fear of prosecution; there is no
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`indication that Colorado will enforce CADA differently against graphic designers
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`than bakeries. Second, any (would be) customer who requests a website for a
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`same-sex wedding and is refused may file a complaint and initiate a potentially
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`burdensome administrative hearing against Appellants. Aplts.’ App. at 2-314 (¶ 4).
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`Thus, Appellants must fear not only charges brought by Colorado, but charges
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`brought by any person who might request a website celebrating same-sex marriage.
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`And third, Colorado declines to disavow future enforcement against Appellants.
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`Colorado’s Br. at 29.
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`Colorado asks us to conclude that there is no “active enforcement by the
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`state,” because, aside from Masterpiece Cakeshop, Appellants only identify three
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`similar cases, each of which ended with a “no probable cause” finding. Colorado’s
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`Br. at 33–34. Yet, those cases involved businesses that supported same-sex
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`marriage. Considering all four cases collectively, Appellants have a credible fear
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`that CADA will be enforced against businesses that object to same-sex marriage.
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`Indeed, the Supreme Court has found that Colorado’s non-enforcement against
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`businesses that support same-sex marriage evinced a Free Exercise violation. See
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`Appellate Case: 19-1413 Document: 010110553596 Date Filed: 07/26/2021 Page: 18
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`Masterpiece Cakeshop, 138 S. Ct. at 1730 (“Another indication of hostility is the
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`difference in treatment between [Jack] Phillips’ case [in Masterpiece Cakeshop] and
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`the cases of other bakers who objected to a requested cake on the basis of conscience
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`and prevailed before the Commission.”).
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`Colorado also asserts that it “need not ‘refute and eliminate all possible risk
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`that the statute might be enforced’ to demonstrate a lack of a case or controversy.”
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`Colorado’s Br. at 29 (quoting Mink v. Suthers, 482 F.3d 1244, 1255 (10th Cir.
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`2007)). Although not dispositive, non-disavowal of future enforcement remains a
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`relevant factor for courts to consider in determining standing. See, e.g., Holder v.
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`Humanitarian Law Project, 561 U.S. 1, 16 (2010) (considering government’s
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`non-disavowal of future enforcement). Further, in the case upon which Colorado
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`relies, the attorney general publicly disavowed enforcement against the plaintiff.
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`Mink, 482 F.3d at 1255 n.8. Here, Attorney General Weiser has made no similar
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`promise to Appellants. Indeed, Colorado’s strenuous assertion that it has a
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`compelling interest in enforcing CADA indicates that enforcement is anything but
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`speculative. See Colorado’s Br. at 67 (“That other website designers are willing to
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`serve the LGBT community is of no moment”).2
`
`
`2 For similar reasons, Colorado’s reliance on the Supreme Court’s recent
`decision in California v. Texas is misplaced. 141 S. Ct. 2104 (2021). In that case,
`the Supreme Court found that plaintiffs lacked standing to challenge an Affordable
`Care Act provision that carried a penalty of $0, and thus had “no means of
`enforcement.” Id. at 2114. By contrast, CADA imposes a minimum penalty of $50.
`Colo. Rev. Stat. § 24-34-602(1)(a). Colorado provides no indication that those
`statutory penalties are unenforceable. Colorado’s repeated refutations of both actual
`and threatened enforcement are puzzling, to say the least.
`18
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`Appellate Case: 19-1413 Document: 010110553596 Date Filed: 07/26/2021 Page: 19
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`In short, on the summary-judgment record presented, we conclude that
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`Appellants show an injury in fact because they intend to discriminate in a manner
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`that is arguably proscribed by CADA, and they show a credible fear that Colorado
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`will enforce CADA against them.
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`2. Causation and Redressability
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`Colorado also challenges causation and redressability as to Director Elenis and
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`Attorney General Weiser. Specifically, Colorado asserts that those defendants,
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`unlike the Commission, lack “enforcement authority” under CADA, and thus do not
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`cause and cannot redress Appellants’ injuries. Colorado’s Br. at 30.
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`“[T]he causation element of standing requires the named defendants to possess
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`authority to enforce the complained-of provision.” Bronson v. Swensen, 500 F.3d
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`1099, 1110 (10th Cir. 2007). Causation does not require a plaintiff to limit a suit to
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`only the most culpable defendants; rather, causation merely requires that the
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`plaintiff’s injury is “fairly traceable” to those defendants. Id. at 1109. Redressability
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`requires “that a favorable judgment would meaningfully redress the alleged injury.”
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`Walker, 450 F.3d at 1098.
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`Here, Appellants’ injury is not merely the risk of complaints filed by private
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`customers—it also includes the burden of administrative proceedings before the
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`Director and the prospect of litigation brought by the Attorney General. Those
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`injuries are “fairly traceable” to Director Elenis and Attorney General Weiser.
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`Colorado concedes that, under CADA, Director Elenis may “investigate[] charges of
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`discrimination, issue[] subpoenas to compel information, issue[] a determination of
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`Appellate Case: 19-1413 Document: 010110553596 Date Filed: 07/26/2021 Page: 20
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`p

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