Wedding Website Designer Has Standing To Challenge One of Colorado's Civil Rights Laws

In 303 Creative, LLC v. Elenis, (D CO, Sept. 1, 2017), a website designer challenged the constitutionality of two anti-discrimination provisions of Colorado law that protect, in part, against discrimination on the basis of sexual orientation.  One provision prohibits any place of public accommodation from withholding services on the basis of sexual orientation.  The second prohibits publishing of any communication that indicates services will be withheld on the basis of sexual orientation.  Plaintiff wants to promote and create wedding websites, but, because of her religious beliefs, not for same-sex couples. A Colorado federal district court held that plaintiff has standing to challenge the prohibition on publishing discriminatory communications since she plans to post a statement indicating that she will not create websites that violate her religious beliefs. However she does not have standing to challenge the ban on withholding services because a number of steps would need to occur before any enforcement of that provision against her would become likely.  The court also postponed any ruling on the merits pending the U.S. Supreme Court's decision on a similar issue in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. ADF issued a press release announcing the decision.

Cert. Granted In Dispute Over Refusal To Create Cake For Same-Sex Wedding

The U.S. Supreme Court today granted review in Masterpiece Cake Shop v. Colorado Civil Rights Commission, (Docket No. 16-111, cert. granted  6/26/2017). (Order List).  In the case, a Colorado Court of Appeals held that a bakery owner's free exercise and free speech rights were not infringed when the Colorado Civil Rights Commission found that the refusal to create a wedding cake for a same-sex couple violates Colorado's public accommodation law  (See prior posting.)  The Colorado Supreme Court denied review. (See prior posting.)  The SCOTUSblog case page has links to briefs in the case.

Student Has Standing Under Establishment Clause To Challenge School's Christian Fundraising

In American Humanist Association, Inc. v. Douglas County School District RE-1, (10th Cir, June 20, 2017), the U.S. 10th Circuit Court of Appeals held that one of the plaintiffs challenging a Colorado public school's Christian fundraising efforts has standing to bring an Establishment Clause challenge seeking retrospective relief. However the 10th Circuit agreed with the district court (see prior posting) that the other plaintiffs do not have standing. The appeals court said in part:

Although we have no doubt that plaintiffs are genuinely and fervently committed to righting what they view as an injustice, “a generalized grievance, no matter how sincere, is insufficient to confer standing.”.... Most of the plaintiffs have failed to demonstrate that they or their children experienced “personal and unwelcome contact with government-sponsored religious” activities.....  Further, they have not made out a case for municipal taxpayer standing because they have not shown an expenditure of municipal funds on the challenged activities.

The sole exception is plaintiff Jane Zoe. She contends that DCSD violated the Establishment Clause when school officials announced they were “partnering” with a Christian student group and solicited her and her son for donations to a “mission trip.” The district court held that because Zoe’s contacts with the challenged actions were not conspicuous or constant, she did not suffer an injury for standing purposes.  We find no support in our jurisprudence for the proposition that an injury must meet some threshold of pervasiveness to satisfy Article III.

American Humanist Association issued a press release announcing the decision.

Suit By Web Designer Challenges LGBT Anti-Discrimination Law

Last week, Lorie Smith, the owner of a Colorado graphic and web design company, filed suit in federal district court challenging the constitutionality of Colorado's public accommodation anti-discrimination law.  The complaint (full text) in 303 Creative LLC v. Elenis, (D CO, filed 9/20/2016) alleges that the anti-discrimination provisions as they apply to plaintiffs violate various provisions of the 1st and 14th Amendments, including the free exercise clause.  The complaint alleges:

7. Colorado law makes it unlawful for Lorie and 303 Creative to publish, display, or mail any communication stating that they will not design, create, or publish websites celebrating same-sex marriages. See Colo. Rev. Stat. § 24-34-601(2)(a).

8. Colorado law also makes it unlawful for Lorie and 303 Creative to publish, display, or mail any communication indicating that a person’s patronage at 303 Creative is “unwelcome, objectionable, unacceptable, or undesirable” because of sexual orientation. See Colo. Rev. Stat. § 24-34-601(2)(a).

9. Therefore, Lorie and 303 Creative cannot explain on 303 Creative’s website their religious belief that God designed marriage as an institution between one man and one woman and why they cannot create wedding websites promoting and celebrating any other conception of marriage.

ADF issued a press release announcing the filing of the lawsuit.

Colorado Trial Court Says Injunction Covers Modified School Choice Program

Denver Post reports that yesterday a Colorado trial court held that an earlier injunction against Douglas County, Colorado's School Choice Grant Program covers a restructured version of the school choice arrangement.  After the Colorado Supreme Court held that the state constitution bars participation of sectarian schools in the original program, the county modified it to only allow participation by private schools that are not religiously affiliated.  However yesterday the trial court said that the modified program was promoted by the school district as a continuation of the old program, so the original injunction still applies.  The holding will not have a dramatic impact since only five eligible students had applied to the modified program.

Court Denies Preliminary Injunction To Require Inclusion of Parochial Schools In Voucher Program

According to the Denver Post, a Colorado federal district court in a ruling from the bench  yesterday refused to issue a preliminary injunction to require the Douglas County (Colorado) School District to include religiously affiliated schools in its School Choice Grant Program.  The court held that it was unclear that plaintiffs would ultimately succeed on the merits of their claim that excluding sectarian schools from the voucher program amounts to government hostility toward religion. At any rate, plaintiffs had not shown irreparable harm since plaintiffs could always seek monetary damages if they ultimately prevail. Also no schools had yet agreed to participate in the grant program. Private religious schools were excluded from the grant program after the Colorado Supreme Court last year struck down an earlier school choice program adopted by the county which included religious schools. (See prior related posting.)

Colorado Supreme Court Denies Review In Case of Baker Who Refused Wedding Cake For Gay Couple

According to yesterday's Denver Post, the Colorado Supreme Court has denied review in the widely watched case of  Craig v. Masterpiece Cakeshop, Inc. In the case, the state court of appeals affirmed a decision of the Colorado Civil Rights Commission that a bakery's refusal to create a wedding cake for a same-sex couple violates Colorado's public accommodation law, and that the Commission's cease and desist order does not infringe the bakery owner's free exercise or free speech rights. (See prior posting.)

Suit Challenges School Voucher Program That Excludes Religious Schools

In a suit filed yesterday in a Colorado federal district court, parents of school children challenged the School Choice Grant Program adopted last month by the Douglas County, Colorado, Board of Education because it excludes participation by religious private schools.  In a fragmented decision, the Colorado Supreme Court last year struck down an earlier school choice program adopted by the county which included religious schools. (See prior posting.) Yesterday's complaint (full text) in Thomas v. Douglas County Board of Education, (D CO, filed 4/19/2016), contends that exclusion of religious schools violates the Free Exercise, Establishment, Equal Protection, Due Process, and Free Speech clauses of the U.S. Constitution.  Institute for Justice issued a press release announcing the filing of the lawsuit.

Suit Over Religious Themed Donor Plaque Dismissed After School Removes All Plaques

Last year, Michael Lucas, an alumnus of the Colorado School of Mines, filed suit against the school after it rejected the text he chose for a donor plaque. The school's fundraising campaign for a new Athletic Complex allowed donors to purchase a personalized plate to be placed in the new football locker room. However the school rejected Lucas' proposed inscription "Colossians 3:23 & Micah 5:9." (See prior posting.) According to an ADF press release, Lucas yesterday moved to voluntarily dismiss the suit because the school has now removed all donor nameplates from the locker room. In a letter to donors (full text), the school's President said:

The purpose of the football locker fundraising program ... was to solicit donations and honor Mines' student athletes.... Unfortunately, an individual who participated in this fundraising program mistakenly viewed our new football locker room as a public space for free expression.

The letter invited donors to transfer their gifts to a new program that would replace their old plaque with a new one containing specified identifying information on the person the donor wished to honor.  No free text quotes are allowed.

Challenge To School Religious Activities Dismissed On Standing Grounds

In American Humanist Association, Inc. v. Douglas County School District RE-1, (D CO, Jan. 20, 2016), a Colorado federal district court dismissed for lack of standing a lawsuit by parents of children in the Douglas County School District, and by the American Humanist Association. The suit challenged as violations of the Establishment Clause and the Equal Access Act various religious activities in the school system, including participation in Operation Christmas Child collections for needy children, a trip by the Fellowship of Christian Athletes to Guatemala and faculty participation in the Fellowship of Christian Athletes.  Some plaintiffs did not show any injury in fact, while others did not show that their injury was traceable to the challenged conduct. The court also found no standing for plaintiffs as municipal taxpayers.

Colorado Appeals Court Interprets Religious Purpose Property Tax Exemption

In Grand County Board of Commissioners v. Colorado Property Tax Administrator, (CO App., Jan. 14, 2016), a Colorado appeals court held that in applying the state's tax exemption for property used in furtherance of religious purposes, the critical question is not whether the property is being used for inherently religious activities. Instead it it whether the use of the property furthers the landowner's religious mission an purpose.

Another County Clerk's Religious Response To Issuing Same-Sex Marriage Licenses

The latest kerfuffle over marriage equality has surfaced in Kiowa, Colorado where the Ebert County Clerk-- responsible for marriage licenses-- has hung a controversial poster above the desks where marriage licenses are issued. According to Denver7 News, the poster, made specifically in response to the legalization of same-sex marriage, shows a bride and groom along with a Biblical quotation (I Corinthians 7:2) reading "...each man should have his own wife and each woman her own husband."  County Clerk Dallas Schroeder explained in an e-mail to other county clerks:

My thought process is that they [same-sex couples] have to see the poster, and if they choose to violate God’s written Word, then that is on their head.

Consent Decree Bars Religious Activities By Colorado School District

Denver 7 News reports that a consent decree (full text) was filed this week in Basevitz v. Fremont RE-2 School District, (D CO, July 28, 2015).  The lawsuit, filed in May by a high school teacher in the district, claimed that Florence, Colorado High School extensively promotes evangelical Christian activities through arrangements with a church, The Cowboy Church at Crossroads. (See prior posting.)  Under the settlement, school district employees may not in their official capacities engage in religious activities with students; and the district will ban all school-sponsored prayers or other religious expression before school-related captive audiences. Also the school district will ban school sponsorship of religious groups and religious activities, distribution of religious literature by district employees, and school-sponsored prayer request boxes.

Colorado Supreme Court Invalidates Choice Scholarship Pilot Program

In a fragmented decision in Taxpayers for Public Education v. Douglas County School District, (CO Sup. Ct., June 29, 2015), the Colorado Supreme Court struck down Douglas County's elaborate Choice Scholarship Pilot Program. The Program creates a public Choice Scholarship Charter School to which  public funds are paid.  Then through scholarship awards 75% of those funds are shared with the Charter School student's Private School Partner (often a religiously sponsored institution) which is the student's actual school.

Chief Justice Rice wrote the Court's plurality opinion for 3 justices, concluding that the scholarship program is unconstitutional under Art. IX, Sec. 7 of the Colorado Constitution that prohibits the state from using public money to fund sectarian schools. The plurality dismissed the other challenge to the Program-- that it violates the state's Public School Finance Act of 1994-- concluding that the legislature did not intend to imply a private right of action under that law and so petitioners lack standing.

Justice Marquez concurred in the result, filing an opinion concluding that the Scholarship Program violates the School Finance Act and that petitioners have taxpayer standing to challenge the program.

Justice Eid, in an opinion joined by two other Justices, argued that the scholarship program was permissible under Art. IX, Sec. 7. In addition she argued that the court should have examined whether Art. IX, Sec. 7 of the state Constitution is unconstitutional under the federal Constitution because of the provision's anti-Catholic bias.

Fox31 reports on the decision.

Suit Challenging Prayer During School Free Time Dismissed By Parties

As reported today by the Colorado Springs Gazette, a Colorado federal district court on June 3, upon motion by plaintiffs (full text), dismissed a lawsuit (see prior posting) against Colorado Spring's Academy School District #20.  At issue was students' rights to gather together for prayer and religious discussion during free periods. The parties disagree however over how to characterize the events leading up to the dismissal.  Alliance Defending Freedom in a press release says the school backed off its policy of barring prayer and religious discussion during lunch periods, allowing it only before and after school.  The school says that the issue was never lunchtime, but instead whether students could gather during so-called Seminar period, an open period during the day when students could engage in other activities. For the last three years, student Chase Windebank who recently graduated has been leading an informal religious gathering during Seminar time and attendance had increased to over 90 students. The school district has now cancelled the Seminar period entirely for the upcoming school year, essentially eliminating the issue of whether religious activities are permitted during that time.

Controversial Former Navy Chaplain Now Running For Colorado State Senate

Former Navy chaplain Gordon James Klingenschmitt, who gained national attention for his long-running battle with the military over regulations requiring chaplains to deliver inclusive prayers at military events (see prior posting), is back in the news. Klingenschmitt, who hosts a national religious television show under the pseudonym "Dr. Chaps," was elected to the Colorado state House of Representatives last November. Last month, Klingenschmitt was removed by the House Republican leader from the Health, Insurance and Environment Committee after Klingenschmitt suggested on his TV show that the brutal attack on a pregnant Longmont, Colorado woman was "the curse of God upon America for our sin of not protecting innocent children in the womb." (Denver Post, March 31).

The Colorado Independent published an interview with Klingenschmitt yesterday discussing Klingenschmitt's decision to run in 2016 for State Senate. Asked how he made the decision to run, Klingenschmitt responded in part:

I went on a three-day, water-only fast, day and night for 72 hours, and I prayed....  At the end of that time, I was reading in the Bible in Joshua, chapter one, where God blessed Joshua and told him, ‘Everywhere you set your foot you will claim as your territory.’ He was talking about ancient Israel. I was inspired by that.

It reminded me of many of the volunteers who knocked on doors for me in my previous campaign and maybe in my future campaign. Everywhere they set their foot, every time they knocked on a door, whether for me or another candidate, those citizens are taking back their territory. They are making a political claim, and almost a spiritual claim, on how they’re going to be represented in the Capitol here.....

Bitter Legal Dispute Continues Over Colorado Land For Jewish Retreat Center

The Denver Post reported yesterday on a long-running and bitter legal dispute over 22 acres of desert land in Gardner, Colorado that Gary Lensky, an Orthodox Jew who is also versed in Eastern religions, is attempting to develop as a Jewish spiritual retreat center. In 1997, Lensky purchased a small home in the center of Gardner for $29,000.  He then discovered that adjacent structures used by the house's former owners were on property technically owned by an individual who had died decades ago.  Lensky paid the back taxes on 17 acres of the land, planning to build a religious retreat on it that he would call Camp D'ORvid at Casa D'el Arroyo.  Claiming under the doctrine of adverse possession, Lensky then proceeded to file a suit to quiet title not just on the 17 acres, but on 5 additional adjoining acres that other neighbors were using as well.  Initially the court granted his quiet title request, but reversed itself seven years later. Lensky has spent nearly $200,000 in legal fees to try to get title to the 22 acres that have an assessed value of $13,450.  There have also been physical confrontations, harassment and ethnic slurs, with Lensky charging anti-Semitism.  The neighbors say Lensky is trying to steal their land.  A non-binding mediation of the dispute is scheduled for March 20.

Civil Rights Complaint With A Twist-- Baker Refuses To Add Anti-Gay Message To Cake

AP today reports on a complaint filed with the Colorado Civil Rights Division against bakery owner Marjorie Silva by a customer who wanted her to create a cake with an anti-gay marriage message on it.  Silva agreed to bake a Bible-shaped cake for customer Bill Jack, but refused his request to put hateful anti-gay words on the cake along with two men holding hands with an X over them. Silva told Jack that she would give him icing and a pastry bag so he could write the words himself.  This did not satisfy Jack, and he filed a complaint alleging that he was discriminated against based on his creed. The complaint comes as Republicans in the Colorado legislature are looking at legislative changes to protect business owners who refuse to provide services for same-sex weddings. [Thanks to Tom Rutledge for the lead.]

Colorado Supreme Court Hears Arguments On School Vouchers

The Colorado Supreme Court yesterday heard oral arguments (audio of full arguments) in Taxpayers for Public Education v. Douglas County School District.  In the case, the state court of appeals upheld  Douglas County, Colorado's "Choice Scholarship Program" under which parents of eligible students can obtain vouchers covering a  portion of the tuition costs of sending their children to certain private schools, a majority of which have religious affiliations. (See prior posting.)  AP reports on the oral arguments.

Suit Says Schools Promoted Christian Activities

The American Humanist Association and several parents of school children filed suit this week against the Douglas County, Colorado school district and its officials over the schools' alleged endorsement of Christian religious organizations.  The complaint (full text) in  American Humanist Association, Inc. v. Douglas County School District RE-1, (D CO, filed 10/22/2014), contends that by extensively promoting Operation Christmas Child and two mission trips, the school district has violated the Establishment Clause and the Equal Access Act.  Huffington Post reports on the lawsuit.