Christian Wedding Services Owner Loses Challenge To Colorado's Public Accommodation Law

303 Creative LLC v. Elenis, (D CO, May 17, 2019), is another in the growing line of cases in which Christian wedding service providers refuse on religious grounds to make their services available for same sex weddings.  Here plaintiff Lorie Smith wanted to expand her business to design custom websites for couples planning weddings. However she would not provide her services for same-sex weddings.  In the case, a Colorado federal district court rejected a constitutional challenge to the application of the "communications clause" of Colorado's public accommodation law to Lorie Smith's business.  That law prohibits publication of any notice or advertisement indicating that services will be withheld on the basis of, among other things, sexual orientation. The court rejected both 1st and 14th Amendment claims.

In their equal protection challenge, plaintiffs argued that the Colorado Civil Rights Commission has applied the law only where business owners disfavor same sex marriages, but not to refusals to produce products with pro-religious messages. The court concluded however that businesses in the other cases were not similarly situated to plaintiff's business.

In rejecting plaintiffs' free speech challenge, the court emphasized that only the clause in the law barring communication of an intent to discriminate was at issue.  The court assumed, for purposes of its decision, that the law's "accommodation clause" which is a substantive ban on discrimination is constitutional. This led it to conclude that under Supreme Court precedent:

the government’s ability to regulate unlawful economic activity allows it to prohibit advertisements of this type, even if it must do so by defining the prohibited message based on its content.

The court rejected plaintiffs' Free Exercise challenge, finding that the communications clause is a neutral of general applicability.