Appellants' Reply Brief

Appellate Case: 19-1413 Document: 010110353956 Date Filed: 05/28/2020 Page: 1
Case No. 19-1413

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
303 CREATIVE LLC and LORIE SMITH,

Plaintiffs-Appellants,
v.
AUBREY ELENIS, et al.,

Defendants-Appellees.
On appeal from the United States District Court

for the District of Colorado
The Honorable Chief Judge Marcia S. Krieger
Case No. 1:16-cv-02372-MSK
APPELLANTS’ REPLY BRIEF
Kristen K. Waggoner David A. Cortman

Jonathan A. Scruggs John J. Bursch
Katherine L. Anderson Alliance Defending Freedom
Alliance Defending Freedom 440 First Street NW, Suite 600
15100 N. 90th Street Washington, DC 20001
Scottsdale, AZ 85260 (202) 393-8690
(480) 444-0020 [email protected]
[email protected] [email protected]
[email protected]
[email protected]
Attorneys for 303 Creative LLC and Lorie Smith

Oral Argument is Requested
TABLE OF CONTENTS
INTRODUCTION ...................................................................................... 1
ARGUMENT ............................................................................................. 3
I. This Court has jurisdiction. ............................................................. 3
A. Lorie faces a substantial risk of harm from the

Communication Clause. .......................................................... 3
B. Lorie’s Communication and Accommodation Clause

challenges are intertwined...................................................... 6
C. Lorie faces a substantial risk of harm from the

Accommodation Clause. .......................................................... 7
D. Lorie’s requested relief will redress the harm Colorado

is causing. .............................................................................. 11
E. The stipulated facts make Lorie’s claims prudentially

ripe. ........................................................................................ 12
II. CADA violates Lorie’s free-speech and religious-exercise

rights............................................................................................... 15
A. The Accommodation Clause compels Lorie’s speech by

forcing her to design and publish websites contrary to
her faith. ................................................................................ 15
1. Lorie objects to messages, not people. ......................... 16
2. CADA compels Lorie’s speech, not conduct. ................ 18
3. Hurley controls, not Rumsfeld. .................................... 21
B. The Accommodation Clause compels Lorie’s speech

based on its content and viewpoint....................................... 22
C. The Communication Clause bans Lorie’s desired

statement based on content and viewpoint. ......................... 22
i
D. CADA punishes Lorie for her religious beliefs. .................... 23
E. The Accommodation and Communication Clauses fail

strict scrutiny. ....................................................................... 26
III. The Unwelcome Provision is facially overbroad, vague, and

grants unbridled enforcement authority. ...................................... 29
CONCLUSION ........................................................................................ 31
CERTIFICATE OF COMPLIANCE with rule 32(a) .............................. 33
CERTIFICATE OF DIGITAL SUBMISSION ........................................ 34
CERTIFICATE OF SERVICE................................................................. 35
ii
TABLE OF AUTHORITIES
Cases
Adams v. Watson,
10 F.3d 915 (1st Cir. 1993) ............................................................... 9
Awad v. Ziriax,
670 F.3d 1111 (10th Cir. 2012) ...................................................... 12
Baur v. Veneman,
352 F.3d 625 (2d Cir. 2003) ............................................................ 10
Beaulieu v. City of Alabaster,

454 F.3d 1219 (11th Cir. 2006) ...................................................... 15
Board of Trustees of State University of New York v. Fox,

492 U.S. 469 (1989) ........................................................................ 30
Bolger v. Youngs Drug Products Corp.,

463 U.S. 60 (1983) .......................................................................... 23
Bronson v. Swensen,
500 F.3d 1099 (10th Cir. 2007) ...................................................... 11
Brush & Nib Studio, LC v. City of Phoenix,

448 P.3d 890 (Ariz. 2019) .................. 2, 10, 13, 16, 18, 19, 20, 21, 22
Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,

508 U.S. 520 (1993) ........................................................................ 24
Citizens for Responsible Government State PAC v. Davidson,

236 F.3d 1174 (10th Cir. 2000) ........................................................ 8
Clapper v. Amnesty International USA,

568 U.S. 398 (2013) .......................................................................... 5
Consumer Data Industry Association v. King,

678 F.3d 898 (10th Cir. 2012) .................................................. 11, 12
Craig v. Masterpiece Cakeshop, Inc.,

370 P.3d 272 (Colo. App. 2015) ...................................................... 20
iii
Cressman v. Thompson,
798 F.3d 938 (10th Cir. 2015) ........................................................ 17
Crime Justice & America, Inc. v. Honea,

876 F.3d 966 (9th Cir. 2017) .......................................................... 28
Day v. Bond,
500 F.3d 1127 (10th Cir. 2007) ........................................................ 6
Elane Photography, LLC v. Willock,

309 P.3d 53 (N.M. 2013) ................................................................. 20
FEC v. Wisconsin Right to Life, Inc.,

551 U.S. 449 (2007) ........................................................................ 26
Felix v. City of Bloomfield,

841 F.3d 848 (10th Cir. 2016) ........................................................ 25
Frudden v. Pilling,
742 F.3d 1199 (9th Cir. 2014) ........................................................ 19
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal,

546 U.S. 418 (2006) ........................................................................ 27
Griswold v. Driscoll,
616 F.3d 53 (1st Cir. 2010) ............................................................... 6
Groswirt v. Columbus Dispatch,

238 F.3d 421 (6th Cir. 2000) .......................................................... 18
Hedges v. Obama,
724 F.3d 170 (2d Cir. 2013) .......................................................... 6, 8
Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston,

515 U.S. 557 (1995) ............................................................ 17, 21, 27
Janus v. American Federation of State, County, & Municipal

Employees, Council 31,
138 S. Ct. 2448 (2018) .................................................................... 18
Landmark Communications, Inc. v. Virginia,

435 U.S. 829 (1978) ........................................................................ 27
iv
Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission,

138 S. Ct. 1719 (2018) ............................................ 16, 17, 21, 25, 28
Maya v. Centex Corp.,

658 F.3d 1060 (9th Cir. 2011) .......................................................... 4
McCullen v. Coakley,
573 U.S. 464 (2014) ........................................................................ 27
MedImmune, Inc. v. Genentech, Inc.,

549 U.S. 118 (2007) .......................................................................... 2
Miami Herald Publishing Co. v. Tornillo,

418 U.S. 241 (1974) .......................................................................... 9
Mink v. Suthers,
482 F.3d 1244 (10th Cir. 2007) ........................................................ 5
National Institute of Family & Life Advocates v. Becerra,

138 S. Ct. 2361 (2018) .................................................................... 28
National Organization for Marriage, Inc. v. Walsh,

714 F.3d 682 (2d Cir. 2013) ............................................................ 12
Petrella v. Brownback,
787 F.3d 1242 (10th Cir. 2015) ........................................................ 7
Pic-A-State Pa., Inc. v. Reno,

76 F.3d 1294 (3d Cir. 1996) .......................................................... 8, 9
PruneYard Shopping Center v. Robins,

447 U.S. 74 (1980) .......................................................................... 21
Reno v. ACLU,
521 U.S. 844 (1997) ........................................................................ 31
Riley v. National Federation of the Blind of North Carolina, Inc.,

487 U.S. 781 (1988) ........................................................................ 19
Rumsfeld v. Forum for Academic & Institutional Rights, Inc.,

547 U.S. 47 (2006) .................................................................... 21, 22
v
Scahill v. District of Columbia,

909 F.3d 1177 (D.C. Cir. 2018)....................................................... 11
State v. Arlene's Flowers, Inc.,

441 P.3d 1203 (Wash. 2019) ........................................................... 20
Stolt-Nielsen S.A. v. AnimalFeeds International Corp.,

559 U.S. 662 (2010) ........................................................................ 12
Summum v. City of Ogden,

297 F.3d 995 (10th Cir. 2002) ........................................................ 24
Susan B. Anthony List v. Driehaus,

573 U.S. 149 (2014) ............................................................ 3, 4, 5, 12
Telescope Media Group v. Lucero,

936 F.3d 740 (8th Cir. 2019) ..................... 2, 8, 10, 15, 17, 20, 22, 31
Texas v. United States,

945 F.3d 355 (5th Cir. 2019) ............................................................ 9
United Food & Commercial Workers Union, Local 1099 v.

Southwest Ohio Regional Transit Authority,
163 F.3d 341 (6th Cir. 1998) .......................................................... 31
United States v. Playboy Entertainment Group, Inc.,

529 U.S. 803 (2000) ........................................................................ 27
United States v. Supreme Court of New Mexico,

839 F.3d 888 (10th Cir. 2016) ................................................ 3, 4, 14
United States v. Williams,

553 U.S. 285 (2008) ........................................................................ 23
Warth v. Seldin,
422 U.S. 490 (1975) .......................................................................... 6
Washington Post v. McManus,

944 F.3d 506 (4th Cir. 2019) .......................................................... 21
Washington State Grange v. Washington State Republican Party,

552 U.S. 442 (2008) ........................................................................ 21
vi
Welsh v. Boy Scouts of America,

993 F.2d 1267 (7th Cir. 1993) ........................................................ 29
West Virginia State Board of Education v. Barnette,

319 U.S. 624 (1943) .......................................................................... 2
Wilson v. Stocker,
819 F.2d 943 (10th Cir. 1987) .......................................................... 8
Regulations
3 C.C.R. § 708-1:10.2 ................................................................................. 7
3 C.C.R. § 708-1:10.8(A)(3) ...................................................................... 11
Statutes
C.R.S. § 24-34-306 ..................................................................................... 4
C.R.S. § 24-34-306(1) ............................................................................... 10
C.R.S. § 24-34-306(1)(b)......................................................................... 7, 8
C.R.S. § 24-34-502(8) ............................................................................... 26
C.R.S. § 24-34-601(2)(a)........................................................................... 30
C.R.S. § 24-34-601(3) ................................................................... 26, 27, 29
Miss. Code. § 11-62-1............................................................................... 29
Other Authorities
Colo. Office of the State Auditor, Management of Civil Rights

Discrimination Complaints: Performance Audit Report of the
Colorado Civil Rights Commission and the Colorado Civil Rights
Division (Aug. 2019), https://perma.cc/CAK7-FTG8. ............................... 5
vii
INTRODUCTION
Lorie Smith is a website designer who operates her business
consistent with her faith. She serves everyone no matter who they are;
she just can’t design and publish websites conveying messages that
violate her faith for anyone. None of this is in dispute. Colorado
stipulated below that Lorie (1) creates speech, (2) serves clients
regardless of status, and (3) declines to design websites because of their
message, not the person requesting them. So this case has nothing to do
with any purported right to discriminate. Contra Appellees’ Br. 2-5.
Colorado presses two points on appeal. First, Colorado says Lorie
lacks standing and this case is not ripe because she faces no risk of
prosecution under the Colorado Anti-Discrimination Act’s (CADA)
Accommodation Clause (restricting which websites Lorie offers) or
Communication Clause (restricting which statements she posts online).
Not so. Colorado unjustly prosecuted Jack Phillips of Masterpiece
Cakeshop twice for exercising the same editorial freedoms, erasing
seven years of his life and 40% of his income. An activist has twice used
and is still using CADA to target Jack for his religious beliefs in efforts
to ruin his business. CADA allows officials to immediately prosecute
Lorie when she posts her desired statement or offers her desired
websites. And Colorado has repeatedly told Lorie her actions violate
CADA.
1
Despite this hostile environment, Colorado demands that Lorie

enter the wedding market, violate CADA, and pray she isn’t prosecuted.
But Lorie need not “bet the farm” to challenge Colorado’s

unconstitutional barriers. MedImmune, Inc. v. Genentech, Inc., 549 U.S.
118, 129 (2007). That is why courts routinely recognize standing and
protect speakers like Lorie in indistinguishable situations. E.g.,
Telescope Media Grp. v. Lucero (Telescope), 936 F.3d 740 (8th Cir. 2019);
Brush & Nib Studio, LC v. City of Phoenix (Brush & Nib), 448 P.3d 890
(Ariz. 2019). This Court should too and give Lorie the clarity and
freedom she so desperately needs.
Second, Colorado argues that Lorie’s editorial freedom creates a
slippery slope that will sanction discrimination. Again, not so. The only
slope here leads to a valley without free speech or religious freedom for
anyone. States that can compel Lorie to create messages that violate
her faith can also force LGBT creatives to design websites condemning
homosexuality and Latino writers to draft pamphlets promoting the
Aryan Nation Church. “Our Constitution was designed to avoid these
ends by avoiding these beginnings.” W. Va. State Bd. of Educ. v.
Barnette, 319 U.S. 624, 641 (1943). “Even antidiscrimination laws, as
critically important as they are, must yield to the Constitution.”
Telescope, 936 F.3d at 755.
2
ARGUMENT
I. This Court has jurisdiction.
A pre-enforcement plaintiff like Lorie proves standing by showing
a “substantial risk” that harm will occur. Susan B. Anthony List v.
Driehaus, 573 U.S. 149, 158-59, 167 (2014). Here, Lorie does not post
her desired statement or offer to create certain websites because she

faces a substantial risk that Colorado will enforce the Communication
and Accommodation Clauses against her.
In denying this risk, Colorado overlooks CADA’s text, its own
active enforcement history, its stated intent to prosecute Lorie, the
efforts of private parties to target religious speakers like Lorie, the
intertwined nature of the challenged CADA clauses, and the stipulated

facts. These prove substantial risk, validate Lorie’s self-censorship, and
show this Court’s jurisdiction.
A. Lorie faces a substantial risk of harm from the

Communication Clause.
Lorie can challenge the Communication Clause because it
“fac[ially] proscribes” her desired speech and Colorado “has not

disavowed” enforcement. United States v. Sup. Ct. of N.M., 839 F.3d
888, 901 (10th Cir. 2016).
Disputing only credible enforcement, Colorado lists nine

“contingencies” that must occur before Lorie suffers harm. Appellees’
Br. 27-29. The first two are certain; Lorie will immediately offer
3
wedding websites and post her desired statement “but for” the
Communication Clause. Sup. Ct. of N.M., 839 F.3d at 902 (cleaned-up).
If self-chill alone creates contingency to negate standing, then chilled

speakers could never sue. Id. (rejecting contingency argument in
chilling context).
The fourth event is certain too. Colorado must investigate filed
complaints, as it acknowledges. Appellees’ Br. 12 (“would be required”
to investigate); Aplt. App. 3—517 (“no discretion” on matter); C.R.S.
§ 24-34-306 (director “shall” investigate). And Colorado conceded below
that someone would “certainly” have an argument that Lorie “is
committing an illegal act by posting this [Lorie’s] discriminatory
language on a website.” Aplt. App. 1—148. Colorado confirmed this by
prosecuting Jack Phillips (Id. at 2—368-96, 3—769-73) and by declaring
Lorie’s statement illegal in this litigation. Appellees’ Br. 3, 50-57
(statement “facilitate[s] illegal commercial conduct”).
All that makes Colorado’s five post-investigation steps irrelevant.
The administrative process harms Lorie when it begins, not just when it
ends. Driehaus, 573 U.S. at 165-66 (“Commission proceedings” alone
can cause harm.). The penalty at the end just produces another harm
that justifies standing, no matter how many perfunctory “links”
Colorado identifies in its process; each link is still “plausible.” Maya v.

Centex Corp., 658 F.3d 1060, 1070 (9th Cir. 2011) (cleaned-up); see also
Br. for Resp’ts, Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014)
4
(No. 13-193), 2014 WL 1260424, at *36-37 (unsuccessfully challenging

standing by citing eight-step process).
That only leaves Colorado’s third step—someone reading Lorie’s

statement and complaining. Appellees’ Br. 27-29. But of course, Lorie
cannot identify someone who will read and object to unpublished
material. For this certainty, Lorie would have to publish her internet
statement, violate the law, and risk prosecution—in a state where the
media spotlights those like Jack Phillips and where people filed almost
2,000 CADA complaints in 2019. 1
No court has ever required so much for standing; it would make
chill-based suits impossible. Driehaus, 573 U.S. at 164 (mere “risk” of
future complaints justified standing; never considering if speaker could
identify future reader or objector). And Colorado’s cited cases don’t say
otherwise. They involved disavowed government action, Mink v.
Suthers, 482 F.3d 1244 (10th Cir. 2007), or statutes authorizing

international surveillance of non-parties, Clapper v. Amnesty Int'l USA,
568 U.S. 398 (2013). Here, CADA directly regulates Lorie (not third
parties), applies domestically (not internationally), and proscribes her
statement (not just authorizes investigations); and Colorado has
enforced CADA against similar speakers and interpreted it to proscribe
1
Colo. Office of the State Auditor, Management of Civil Rights Discrimination
Complaints: Performance Audit Report of the Colorado Civil Rights Commission
and the Colorado Civil Rights Division (Aug. 2019), https://perma.cc/CAK7-
FTG8.
5
Lorie’s actions. That justifies standing. Hedges v. Obama, 724 F.3d 170,
200-01 (2d Cir. 2013) (distinguishing Clapper on these grounds).
B. Lorie’s Communication and Accommodation Clause

challenges are intertwined.
Because Lorie can challenge the Communication Clause, which
requires this Court to address the Accommodation Clause’s validity,

Lorie can also challenge the Accommodation Clause. Her challenges are
intertwined. Amicus Br. Catholic Vote.Org 4-11. Colorado concedes this
intertwinement. Appellees’ Br. 24, 51. This is decisive.
At most, Colorado says these two clauses’ merits are intertwined,
not standing and the merits. Appellees’ Br. 24. But that’s the same
thing. “[S]tanding is” a litigant’s entitlement “to have the court decide
the merits of … particular issues.” Warth v. Seldin, 422 U.S. 490, 498
(1975). So when this Court addresses the Communication Clause’s
merits and decides the Accommodation Clause’s merits (as Colorado
concedes it must), this Court has resolved the issue’s merits and by
definition awards standing.
That has been Lorie’s point all along. When an “answer to [a

merits] question would necessarily resolve the standing issue,” courts
award standing and resolve the merits. Day v. Bond, 500 F.3d 1127,
1137 (10th Cir. 2007). This Court should do the same. Accord Griswold
v. Driscoll, 616 F.3d 53, 56 (1st Cir. 2010) (exercising jurisdiction
because “the dispositive questions of standing and statement of
6
cognizable claim are difficult to disentangle”). Cf. Petrella v. Brownback,

787 F.3d 1242, 1255 (10th Cir. 2015) (pendent jurisdiction appropriate
if “the pendent claim is coterminous with, or subsumed in, the claim

before the court on interlocutory appeal—that is, when the appellate
resolution of the collateral appeal necessarily resolves the pendent claim
as well”) (cleaned-up).
C. Lorie faces a substantial risk of harm from the

Accommodation Clause.
Lorie also has independent standing to challenge the
Accommodation Clause because it creates a substantial risk by forcing
her to offer websites that violate her faith or face prosecution.
Colorado’s contingency argument for this Clause fails for the same
reasons as noted above. Eight of Colorado’s nine “contingencies” are
certain; either Lorie controls each step or Colorado does, and Colorado
has already pledged to perform it’s “contingencies.” See supra § I.A.
That only leaves someone requesting a website Lorie cannot
create and complaining. But Colorado can enforce CADA without this.
CADA allows each named Appellee to initiate “on its own motion” a
complaint “alleging a discriminatory or unfair practice” (C.R.S. § 24-34-
306(1)(b)), defined as “one or more acts, practices, commissions or
omissions prohibited by” CADA. 3 C.C.R. § 708-1:10.2. So Lorie’s mere

policy and practice of offering only certain websites violates CADA, and
Colorado can file a complaint on that basis—no request or denial
7
necessary. Telescope, 936 F.3d at 768-71 (Kelly, J., concurring in part)

(filmmakers’ mere “business model” violated public accommodations
law).
To be sure, officials can only file complaints when a practice
“imposes a significant societal or community impact.” C.R.S. § 24-34-
306(1)(b). But Colorado has already trumpeted its compelling need to
regulate Lorie to prevent widespread harm—no exceptions possible.
Appellees’ Br. 2-5, 49-50, 64-73 (regulating Lorie necessary because
CADA’s “uniform enforcement” serves its “compelling interest in
eliminating discrimination”). Colorado’s treatment of Jack Phillips
bolsters this. It’s far too late and too unbelievable for Colorado to argue
(for the first time) that “small compan[ies] … would rarely” impose a
community impact justifying Attorney General action. Appellees’ Br. 31.
It’s also irrelevant. Colorado’s statement never mentions or binds
other officials who can file complaints and never disavows the Attorney
General doing so either. Such contradictory, “equivocating,” non-
binding, and litigation-driven statements don’t negate reasonable chill.
Wilson v. Stocker, 819 F.2d 943, 947 n.3 (10th Cir. 1987); Citizens for
Responsible Gov’t State PAC v. Davidson, 236 F.3d 1174, 1192 (10th
Cir. 2000) (government construction “insufficient to overcome the
chilling effect of the statute’s plain language”); Hedges, 724 F.3d at 199
(same for vague language); Pic-A-State Pa., Inc. v. Reno, 76 F.3d 1294,
8
1299 (3d Cir. 1996) (saying “prosecution is unlikely” insufficient

because did not “expressly disavow[]” intent to prosecute).
Lastly, Lorie need not identify pending requests for standing. She
faces a substantial risk of receiving a request because she wants to
operate and solicit clients in the wedding market, and activists have
already targeted religious speakers like her, sending speakers requests
so they can be sued under CADA. Appellants’ Br. 9-11 & n.5
(referencing Masterpiece II and III proceedings). In this seek-and-
destroy environment for creative professionals, Lorie faces much more
than a substantial risk of receiving a request; the risk is overwhelming
—it is “predicated on actual market experience and probable market
behavior.” Adams v. Watson, 10 F.3d 915, 923 (1st Cir. 1993); Texas v.
United States, 945 F.3d 355, 386 n.30 (5th Cir. 2019) (plaintiffs can
challenge law causing them to provide cost-incurring services without
identifying individual who will use those services).
As such, Lorie would be foolish to do anything but chill her speech.
Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 257 (1974) (“right-of-
access statute” caused newspapers to “avoid controversy” and chill
speech even before third party could request access and trigger statutory
obligations). Other speakers have faced much more tenuous threats
than this and they still had standing. Appellants’ Br. 27-28. Colorado
never distinguishes these situations.
9
In fact, courts have consistently allowed creative professionals to

challenge public accommodations laws threatening their editorial
freedom. Appellants’ Br. 28. Colorado objects that these cases involved
officials actively enforcing laws, plaintiffs providing examples of their
desired speech, or testers. Appellees’ Br. 33-35. But Lorie has alleged
more active and widespread enforcement than these other cases.
Appellants’ Br. 8-11; supra n.1. And she’s provided a sample wedding
website. Aplt. App. 2—333-61.
As for “testers,” the cited cases either did not mention them,
Brush & Nib, 448 P.3d at 899-902, or did not require them—instead
relying more on other factors also present here. Telescope, 936 F.3d at
749-50 (emphasizing government’s stated intent to enforce and past
enforcement). No matter, Colorado encouraged and deputized everyone
to be a tester by allowing private citizens and certain officials to file
complaints. C.R.S. § 24-34-306(1). This makes Lorie’s basis for standing
stronger than these other cases.
To seal the matter, Lorie has already received a request for a
wedding website that would violate her faith. Appellants’ Br. 25-26.
Unable to deny this, Colorado dismisses it for coming after litigation
began. Appellees’ Br. 28 n.2. But courts can consider “post-filing events”
to “confirm that a plaintiff’s fear of future harm is reasonable.” Baur v.

Veneman, 352 F.3d 625, 637 n.11 (2d Cir. 2003).
10
Beyond that, most courts read Supreme Court precedent as

allowing them to consider post-complaint information supplemented
into the record, like the request Lorie received here. Scahill v. District
of Columbia, 909 F.3d 1177, 1183 (D.C. Cir. 2018) (surveying these
cases). This Court should as well. 2
D. Lorie’s requested relief will redress the harm

Colorado is causing.
Lorie can also prove causation and redressability.
For causation, Lorie need only show that named officials “possess
authority to enforce the complained-of provision.” Bronson v. Swensen,
500 F.3d 1099, 1110 (10th Cir. 2007). And Colorado does not dispute the
Commissioners’ authority to enforce, only the Director’s and Attorney

General’s. Appellees’ Br. 30-31. But CADA empowers all these officials
to file complaints and the Director to control CADA investigations. Aplt.
App. 2—314-17 (¶¶ 4-23). The Attorney General’s office also prosecutes
people during Commission-enforcement hearings. 3 C.C.R. § 708-
1:10.8(A)(3).
As for redressability, Lorie’s relief need not “afford complete
redress”; reducing the injury to “some extent” is enough. Consumer
Data Indus. Ass’n v. King, 678 F.3d 898, 905 (10th Cir. 2012) (cleaned-
up). Here, an injunction would stop the very officials charged with
2While this Court takes the opposite view in this circuit split, Lorie
wishes to preserve this argument for appeal.
11
CADA-enforcement. Lorie does not need to enjoin the world to obtain

this relief. Compare id. at 901-02 (harm redressable despite private
parties’ ability to sue) with Appellees’ Br. 32-33 (saying private lawsuits
made harm unredressable).
E. The stipulated facts make Lorie’s claims prudentially

ripe.
Moving from standing, Colorado objects that insufficient facts
make this case unripe under Article III. Appellees’ Br. 35-37. But this
objection is prudential, not jurisdictional. Driehaus, 573 U.S. at 167.
And Colorado waived it by not raising it below. Stolt-Nielsen S.A. v.
AnimalFeeds Int’l Corp., 559 U.S. 662, 670 n.2 (2010) (prudential
ripeness objections waivable).

Lorie satisfies this requirement anyway. First, Lorie challenges
the Unwelcome Clause facially, which requires no “[f]urther factual
development.” Awad v. Ziriax, 670 F.3d 1111, 1125-26 (10th Cir. 2012).
Second, Lorie provided the exact statement she wants to publish (Aplt.
App. 2—362-66) and Colorado says the Communication Clause forbids
it. Appellees’ Br. 3 (statement “advertise[s] [Lorie’s] intention to deny

services to customers based on…sexual orientation”), 50-57. No more
facts are needed there. Nat’l Org. for Marriage, Inc. v. Walsh, 714 F.3d
682, 691-92 (2d Cir. 2013) (sample advertisements made case ripe).
Third, the stipulated facts make Lorie’s Accommodation Clause
challenge ripe. Colorado has stipulated that every wedding website
12
Lorie creates is expressive, celebratory, and sends a particularized

message promoting each couple’s love story and wedding. Aplt. App. 2—
320, 325 (¶¶ 46-47, 50, 80-83). So the particular wording Lorie uses in
these websites does not matter. Contra Appellees’ Br. 35-37. Forcing
Lorie to design any of these conceivable websites about same-sex
weddings automatically forces her to speak objectionable messages.
Brush & Nib, 448 P.3d at 901 (same concession made case ripe as to
wedding invitations).
Lorie has also provided a sample wedding website. Aplt. App. 2—
333-61. Colorado never explains why it needs more than this. 3
And Colorado’s legal theory also makes additional facts
unnecessary. Under this theory, Lorie must “provide the same
commercial service” to both same-sex and opposite-sex weddings, even
when content about the wedding or couple in these services changes
(like names, dates, photographs, and celebratory language). Appellees’

Br. 42-43 (giving examples and defining discrimination as denying
“same service”).
For example, because Lorie will publish affectionate photographs
of the couple and write “celebrate our marriage,” “Mrs. … Mr.,” “The
Bride … The Groom,” “‘…and they shall become one flesh’—Genesis
3 While the stipulated facts make this unnecessary, this Court could
tailor relief to protect only the wedding website in the record and
materially similar websites. Brush & Nib, 448 P.3d at 901.
13
2:24,” and “What therefore God has joined together, let no man
separate” about opposite-sex weddings (Aplt. App. 2—335-36, 338, 356),
Colorado’s theory requires her to publish the same and similar

photographs and phrases (i.e., “Mr. and Mr.”) about same-sex weddings.
While Colorado may not require Lorie to create content about
other subjects (“God is Dead,” “Gay Pride,” Appellees’ Br. 42), it does
require her to create any content describing the wedding, marriage, or
marrying couple. For wedding content, Colorado thinks speakers always
offer the “same service,” whether for same-sex or opposite-sex weddings.
That’s why Colorado says photographers, calligraphers, and filmmakers
must offer “the same wedding-related services” to both weddings or they
engage in “discriminatory conduct.” Appellees’ Br. 48-49. Even though
the wedding content in these services necessarily changes to reflect
each wedding, Colorado compels it anyway.
Under Colorado’s theory then, Lorie violates CADA anytime she
offers to create any wedding content about opposite-sex weddings,
couples, or marriages and not about same-sex weddings. And this covers
everything Lorie wants to do. After all, those seeking wedding services
“seek to celebrate their own weddings.” Appellees’ Br. 43. And Lorie’s
wedding websites always do just that—describe and celebrate
particular weddings. Aplt. App. 2—325-26 (¶ 79-83, 88).

Because Colorado’s legal theory blanketly requires her to do so,
this case is ripe for review. Sup. Ct. of N.M., 839 F.3d at 904 (case ripe
14
because contingencies did not “significantly advance” court’s ability to

resolve legal issues) (cleaned-up); Telescope, 936 F.3d at 768-771 (Kelly,
J., concurring in part) (case ripe because filmmakers would violate

public accommodations law by declining to offer any same-sex wedding
film); Beaulieu v. City of Alabaster, 454 F.3d 1219, 1231 (11th Cir. 2006)
(case ripe because government’s views about ordinance in record).
II. CADA violates Lorie’s free-speech and religious-exercise

rights.
Colorado applies CADA to compel and censor Lorie’s speech while
targeting her religious beliefs for disfavored treatment. Because these
applications trigger and fail strict scrutiny, they violate the First
Amendment.
A. The Accommodation Clause compels Lorie’s speech by

forcing her to design and publish websites contrary to
her faith.
As Lorie noted before, this Court uses a three-part test to identify
compelled speech: (1) speech, (2) that the speaker objects to, and (3) the
government compels. Appellants’ Br. 30. Colorado never interacts with
this test. Colorado also concedes that Lorie’s websites are speech. Aplt.
App. 2—320, 325 (¶¶ 46-47, 81). That only leaves whether Lorie objects
to speech Colorado compels. She does.
15
1. Lorie objects to messages, not people.

Lorie already explained that she declines websites based on their
content—not anyone’s status. She cited precedent adopting this
distinction, highlighted the stipulated facts applying this distinction,
and repeated herself, again and again. Appellants’ Br. 1, 6, 31-33. But
Colorado never responds. It does not distinguish the cited cases or deny
(or even discuss) these stipulations. Colorado simply assumes the key
premise in its argument—that Lorie offers the “same service” to same-
sex and opposite-sex couples, declines service to the former, and
therefore discriminates based on status. Supra § I.E.
But in reality, Lories offers the same service to and conveys the
same message for everyone: websites celebrating opposite-sex weddings.

No other messages are on the menu. In other words, Lorie’s websites
are not “fungible products, like a hamburger or a pair of shoes.” Brush
& Nib, 448 P.3d at 901 (rejecting “same-service” argument). Each
website contains unique content that conveys celebratory messages
about each wedding. Aplt. App. 2—320, 325 (¶¶ 46-47, 50, 79-84). In
compelling Lorie to design same-sex weddings websites then, Colorado
is forcing her to add to her menu by designing website content she will
not design for anyone.
Colorado’s own cases prove the point. Because Lorie’s websites

convey celebratory messages about opposite-sex marriage, they are not
“suitable” to describe “same-sex and opposite-sex weddings alike” but
16
are in fact different services conveying different messages. Masterpiece

Cakeshop, Ltd. v. Colo. Civil Rights Comm’n (Masterpiece I), 138 S. Ct.
1719, 1733 n.* (2018) (Kagan, J., concurring). So even under Colorado’s
own theory, Lorie does not discriminate.
This inconsistency underscores the flaw in Colorado’s “same-
service” test. It sets “the level of generality” too high for Lorie, but no
one else. Masterpiece I, 138 S. Ct. at 1739 (Gorsuch, J., concurring).
What matters is not whether Lorie offers websites generally, but
whether Colorado compels her to design websites conveying messages
she disagrees with—i.e., messages she does not convey for anyone.
Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557,
574 (1995) (focusing on message conveyed by group’s banner, not
whether organizers offered “parade services”); Cressman v. Thompson,
798 F.3d 938, 960-61 (10th Cir. 2015) (focusing on message conveyed by
license plate).
And Colorado compels exactly this. Websites celebrating opposite-
sex weddings “at a minimum will convey a different message than”
those celebrating same-sex weddings. Telescope, 936 F.3d at 753. So
Lorie can decline the latter based on the message without
discriminating against anyone’s status.
This message/status distinction protects others as well. Otherwise,

Colorado’s “same-service” test would—if applied consistently—force
Muslim filmmakers to produce promotional films for synagogues
17
because they do so for mosques. Or LGBT printers to publish signs

saying, “Trust the Westboro Baptist Church” because they would
publish signs saying, “Trust the Unitarian Church.” Or Catholic

calligraphers to write tracts for Mosques saying, “Worship Allah”
because they write tracts for churches saying, “Worship Jesus.” As
Colorado views it, that’s all just the “same service.” In our pluralistic
society though, “[c]ompelling individuals to mouth support for views
they find objectionable violates [a] cardinal constitutional command.”
Janus v. Am. Fed’n of State, Cty., & Mun. Emps., Council 31, 138 S. Ct.
2448, 2463 (2018) (cleaned-up). That is why courts let speakers choose
what they say, not the government.
2. CADA compels Lorie’s speech, not conduct.

Colorado interprets CADA to force Lorie to design and publish
websites conveying messages she disagrees with. That compels speech,
not conduct.
Colorado counters that anti-discrimination laws always regulate
commercial conduct. Appellees’ Br. 37-39. Not true. While these laws
typically regulate conduct, they still regulate speech when applied to

alter expressive content. That’s why courts regularly stop anti-
discrimination laws from compelling speech. Appellants’ Br. 35 (citing
cases); Groswirt v. Columbus Dispatch, 238 F.3d 421, *2 (6th Cir. 2000)
(unpublished) (anti-discrimination law could not force newspaper to
18
publish op-ed); Brush & Nib, 936 F.3d at 755 (“[A]s compelling as the
interest in preventing discriminatory conduct may be, speech is treated
differently under the First Amendment.”).

To avoid their import, Colorado tries to limit these cases to
speakers who “craft[] the content of” their services “before making
[them] available to the public,” not afterward at the sale point.
Appellees’ Br. 41. But Lorie does exactly this. She offers custom (not off-
the-shelf) websites and wants to exercise editorial discretion on the
front-end by only offering to design websites celebrating opposite-sex
weddings. Aplt. App. 2—325 (¶¶ 79-84).
Next, Colorado says it can compel Lorie’s websites without forcing
her to endorse anything because her websites convey only her clients’
message. Appellees’ Br. 43. But Lorie already explained why that’s
wrong; Colorado never responds. Appellants’ Br. 35-36; Riley v. Nat’l
Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 794 n.8 (1988) (law could
not force professional fundraiser to speak client’s requested message);
Frudden v. Pilling, 742 F.3d 1199, 1204-05 (9th Cir. 2014) (rejecting
endorsement argument).
Colorado does not even believe its own theory. Colorado identifies
other website designers who do not speak for their clients. Appellees’
Br. 42 (designer declining website with rainbow flag). But Colorado

sacrifices consistency for good reason. Under its endorsement theory,
the government could force any commissioned speaker to speak any
19
message requested by any client, such as forcing freelance writers to

ghostwrite books promoting Donald Trump or Barack Obama. No court
has sanctioned this.

Finally, Colorado cites various Supreme Court cases upholding
anti-discrimination laws. Appellees’ Br. 39, 48. But these cases involved
conduct—hiring law partners, selling barbeque, renting hotel rooms,
and accessing clubs; they never addressed compelled-speech claims. Id.;
Brush & Nib, 448 P.3d at 899-902 (distinguishing same cases);
Telescope, 936 F.3d at 749-50 (same). Here, everyone concedes Lorie’s
websites are speech.
Even Colorado’s wedding cases support Lorie. They indicate
officials cannot compel “forms of pure expression” like websites. State v.
Arlene’s Flowers, Inc., 441 P.3d 1203, 1227 n.19 (Wash. 2019) (cleaned-
up); Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272, 288 (Colo. App.
2015) (case different if cake contained “design” or “written
inscriptions”).
Only Elane Photography, LLC v. Willock says otherwise. 309 P.3d
53 (N.M. 2013) (compelling photographer). But Elane repeats Colorado’s
mistake: it confuses what anti-discrimination laws textually say with
what they do when applied to alter expressive content. Id. at 68
(upholding law because it “applies not to Elane Photography’s

photographs but to its business operation”). As such, Elane contradicts
Hurley and the many other cases stopping anti-discrimination laws
20
from compelling speech. Other courts agree. Brush & Nib, 448 P.3d at
916-17 (distinguishing Elane). This Court should too.
3. Hurley controls, not Rumsfeld.

Since Colorado is using a public accommodations law to compel
speech, Hurley controls and condemns this attempt to “alter the
expressive content” in Lorie’s speech. 515 U.S. at 572-73.
Colorado can only counter that Hurley applies to non-profits.
Appellees’ Br. 47. But Lorie dismantled this distinction already.
Appellants’ Br. 35. See Washington Post v. McManus, 944 F.3d 506, 518
(4th Cir. 2019) (applying Hurley to for-profit newspaper). Colorado’s
response? Silence.
Instead, Colorado invokes Rumsfeld v. Forum for Academic &
Institutional Rights, Inc., since it upheld an equal-access regulation.
547 U.S. 47 (2006); Appellees’ Br. 44-47. But that regulation forced
schools to open their empty rooms to recruiters. And empty rooms
(unlike websites) don’t say anything; they aren’t “inherently
expressive.” Rumsfeld, 547 U.S. at 64. Compare PruneYard Shopping
Ctr. v. Robins, 447 U.S. 74, 87 (1980) (requiring access to empty space)
with Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442,
457 n.10 (2008) (distinguishing Rumsfeld because laws requiring
“[f]acilitation of speech” different from laws forcing someone to actually
speak); Masterpiece I, 138 S. Ct. at 1745 (Thomas, J., concurring in part
21
and concurring in the judgment) (same); Telescope, 936 F.3d at 758

(same).
The Rumsfeld regulation did force schools to send emails with

logistical information. 547 U.S. at 61-62. But those emails were
incidental to hosting, i.e., speech necessary to effectuate some other
conduct (hosting) the government could require. Here, Lorie is not
physically hosting any weddings or engaging in any other conduct, only
speech. So Colorado cannot force her to speak about weddings, much
less speak celebratory messages she disagrees with about those
weddings. Telescope, 936 F.3d at 758 (distinguishing Rumsfeld for this
reason); Brush & Nib, 448 P.3d at 908-09 (same).
B. The Accommodation Clause compels Lorie’s speech

based on its content and viewpoint.
The Accommodations Clause not only compels speech, it does so
based on content and viewpoint—it alters Lorie’s website content, is

triggered by what she says elsewhere, and provides access only to those
expressing certain viewpoints. Appellants’ Br. 40-41. Colorado never
responds.
C. The Communication Clause bans Lorie’s desired

statement based on content and viewpoint.
Because the Accommodations Clause cannot compel Lorie to
design same-sex wedding websites, the Communication Clause cannot
22
ban her desired website statement—Lorie can explain her right not to
speak.
Colorado counters that it can ban statements facilitating illegal

commercial conduct. Appellees’ Br. 51-57. But Lorie does not engage in
illegal action. Supra § II.A.1. So her statement does not facilitate it.
Raising commercial speech does not help Colorado either.
Colorado can ban statements facilitating illegal conduct whether they
are commercial speech or not. United States v. Williams, 553 U.S. 285,
298 (2008). But with no discrimination interest here, Colorado gives no
other reason for restricting Lorie’s speech. And any conceivable reason
would regulate her speech because of its viewpoint and noncommercial
content. Doing that always triggers strict scrutiny (Appellants’ Br.
45)—a point Colorado ignores—and fails every scrutiny level. Bolger v.
Youngs Drug Prods. Corp., 463 U.S. 60, 71 (1983) (no substantial
interest when regulating speech for being offensive).
D. CADA punishes Lorie for her religious beliefs.

Lorie holds religious views about marriage that motivate her to
avoid celebrating same-sex marriage and to post a statement giving

others upfront clarity about her services. Aplt. App. 2—326 (¶¶ 87-92).
By singling out these views for disfavored treatment, Colorado violates
the Free Exercise Clause.
23
Colorado responds first by defending CADA’s facial validity.

Appellees’ Br. 60-61. But that misses Lorie’s as-applied arguments.
Nor can Colorado avoid its obligations because Lorie brought a

pre-enforcement suit. Appellees’ Br. 61-62. In Church of the Lukumi
Babalu Aye, Inc. v. City of Hialeah, the plaintiffs similarly won a pre-
enforcement suit based on religious hostility. 508 U.S. 520, 528, 547
(1993).
Colorado also dismisses Lorie’s hybrid-rights argument by
assuming her free speech arguments fail. Appellees’ Br. 63. Not so.
Supra § II.A-C. And Lorie only needs to show fair probability for a
hybrid claim, not definite success. Lorie clears this bar because of
Colorado’s many concessions and the cases protecting creatives in
similar situations.
For the most part though, Colorado tries to undo the past, passing
a resolution promising to obey Masterpiece I. Appellees’ Br. 61-62. Way
too little, much too late. Colorado has litigated Lorie’s case for nearly
four years, prosecuted Jack Phillips for seven, made shameful anti-
religious comments, and re-affirmed those exact same comments after
the Supreme Court condemned them. Appellants’ Br. 9-11. Yet Colorado
waited until after Lorie’s opening brief in this appeal to pass its
resolution. Last-minute maneuvers like this prove fear of

accountability, nothing more. Summum v. City of Ogden, 297 F.3d 995,
1005 (10th Cir. 2002) (ignoring post-litigation policy changes).
24
The resolution’s format and substance fall short too. No press

release. No public statement. A stealth resolution buried in “a difficult-
to-access legislative record” does not undo a seven-year crusade of open

religious hostility. Felix v. City of Bloomfield, 841 F.3d 848, 863-64
(10th Cir. 2016).
Most important, the resolution’s substance misses wide. No
admission of wrongdoing. No new training. No new procedures. No
reprimands whatsoever. The resolution identifies no concrete changes.
It’s all talk and no substance.
Colorado’s post-resolution brief proves the point. According to this,
speakers can decline to create websites outside the wedding context—
such as those “featuring” anti-religious text like “God is Dead”—but
Lorie must offer websites celebrating same-sex weddings, apparently
because only Lorie’s websites exclusively speak her clients’ message.
Appellees’ Br. 42-43; Masterpiece I, 138 S. Ct. at 1730 (condemning
same policy for inconsistent attribution logic).
Colorado even admits that other speakers can decline “a message
it would decline to produce for any customer.” Appellees’ Br. 62. But
Colorado still requires Lorie to create messages celebrating same-sex
marriage that she would not create for anyone. The inconsistency is
indisputable. But one consistency remains. Colorado continues to use

the same policy to allow the same individualized assessments to
25
produce the same biased results—those with Lorie’s religious beliefs

always lose.
E. The Accommodation and Communication Clauses fail

strict scrutiny.
Because Colorado uses CADA to target Lorie’s speech and faith,
Colorado must satisfy strict scrutiny, i.e., prove its application serves a
narrowly tailored and compelling interest. Colorado fails this test.
Compelling interest. Colorado says it must regulate Lorie to
eradicate discrimination. Appellees’ Br. 65. But Lorie does not
discriminate. So regulating her speech gets Colorado nowhere.
Appellants’ Br. 54. Again, no response.
Colorado does cite harms caused by discriminatory conduct.

Appellees’ Br. 65-67. And that might justify many CADA applications.
But “a compelling interest [must] support[] each application of a statute
restricting speech.” FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 478
(2007). Yet Colorado never cites any evidence about anything, much less
public accommodations or website designers. By definition, Colorado
cannot prove a causal link between Lorie exercising her editorial

freedom and any problem whatsoever.
Instead, Colorado cites cases saying access denials always cause
harm. Appellees’ Br. 67-68. But CADA undermines that defense by

exempting some denials. C.R.S. § 24-34-502(8) (denials based on
familial status by single-home owner and owner-occupied dwellings);
26
C.R.S. § 24-34-601(3) (denials based on sex by public accommodations if

restriction has “bona fide relationship” to services). And just because
officials proved harm elsewhere does not mean Colorado can

manufacture harm here.
Just as important, those cases evaluated activities they considered
conduct. Here, Lorie wants to control her speech. Her defense is not “go
elsewhere” but “speak elsewhere”—something the First Amendment
protects. Hurley, 515 U.S. at 578 (LGBT group could “obtain[] a parade
permit of its own”). Rightfully so. Compelling speech causes incredible
harm. Lorie’s dignity matters too.
Narrowly tailored. In response to Lorie’s proposed alternatives,
Colorado expresses fear of widespread denials of “goods and services.”
Appellees’ Br. 49-50, 69. But Colorado never proved that it tried or
“considered” these alternatives “that other jurisdictions have found
effective.” McCullen v. Coakley, 573 U.S. 464, 494 (2014). That’s fatal
under intermediate scrutiny. Id. So it fails strict scrutiny too.
What’s more, Colorado cites no evidence to prove its fears will
occur. Colorado bears the burden “to prove that the alternative will be
ineffective.” United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803,
816 (2000). Mere “assertion and conjecture” do not suffice. Landmark
Commc’ns, Inc. v. Virginia, 435 U.S. 829, 841 (1978); Gonzales v. O

Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 431 (2006)
27
(dismissing slippery-slope concerns for insufficient proof); Crime Justice

& Am., Inc. v. Honea, 876 F.3d 966, 977 (9th Cir. 2017) (same).
Masterpiece I does not fill this evidentiary gap. Contra Appellees’

Br. 69. While Masterpiece I worried about overbroad exemptions
covering all wedding services, here “a narrower issue is presented”:
whether Lorie must “make an expressive statement” about weddings.
138 S. Ct. at 1727-28.
Moving on from Colorado’s evidentiary failures, Lorie’s
alternatives still work.
First, Colorado complains it cannot identify message-based
objections. Appellees’ Br. 70. But courts have frequently done so
without causing problems. Appellants’ Br. 32-33. Protection only occurs
when an expressive work conveys messages the speaker disagrees with,
not when someone objects to the denial act itself. Contra Appellees’ Br.
70. That makes Lorie’s theory quite narrow. “[I]nnumerable goods” do
not “implicate the First Amendment.” Masterpiece I, 138 S. Ct. at 1728.
To Colorado’s chagrin, Lorie’s theory does require courts to
distinguish speech and conduct. Appellees’ Br. 49-50, 70-71. But
“precedents have long drawn” this line, which “is long familiar to the
bar.” Nat’l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361,
2373 (2018) (cleaned-up). And while judges may disagree about cakes,
flowers, wedding dresses, and the like (Appellees’ Br. 49-50, 71), no one
28
disagrees about websites. They’re speech, as Colorado stipulated. Aplt.

App. 2—320, 325 (¶¶ 46-47, 81)
Second, Colorado fears that protecting selective entities would

cover too many businesses, including upscale bistros. Appellees’ Br. 72.
No. Bistros serve the general public. Very few entities offer services
purposefully and necessarily tailored to small audiences. Courts can
identify them. Welsh v. Boy Scouts of Am., 993 F.2d 1267, 1276-77 (7th
Cir. 1993) (evaluating selectivity in public accommodations context). In
fact, CADA already allows businesses to draw sex-based distinctions
that have a “bona fide relationship” to their services. C.R.S. § 24-34-
601(3). If Colorado can allow that, it can allow Lorie to exercise her
freedoms.
And finally, Colorado thinks protecting wedding professionals
would cover every wedding business, service, and objection. Appellees’
Br. 72-73. But Lorie’s alternative tracks a law that only covers
individuals and small businesses that decline specified wedding services
violating their sincere belief in one-man-one-woman marriage. Miss.
Code. § 11-62-1 et. seq. Colorado never explains why it must go further.
Colorado has failed to disprove this alternative, just like every other.
III. The Unwelcome Provision is facially overbroad, vague, and

grants unbridled enforcement authority.
CADA’s Unwelcome Provision fails facially because it vaguely
restricts too much speech by banning any speech that indicates
29
someone’s “patronage or presence” is “unwelcome, objectionable,

unacceptable, or undesirable because of” protected characteristics.
C.R.S. § 24-34-601(2)(a).
This problem extends well beyond commercial speech. Contra
Appellees’ Br. 57-59. Indeed, the Communication Clause’s first part
already bans statements denying service. So the Unwelcome Clause
necessarily goes further. Bd. of Trustees of State Univ. of N.Y. v. Fox,
492 U.S. 469, 481 (1989) (commercial-speech regulation could be
challenged for non-commercial speech applications).
According to Colorado, the Unwelcome Provision only bans
“statements of discriminatory preference” connected to a “commercial
transaction.” Appellees’ Br. 59. But the provision never says that. The
provision bans statements indicating someone’s “presence” is
unwelcome, not just their “patronage.” This language goes far beyond
statements deterring commercial transactions to statements deterring
interactions between public accommodations and their customers. After
all, any critical statement about protected classes or their actions could
be taken to indicate their presence is unwelcome.
But even under Colorado’s interpretation, the Clause is
unconstitutional. Colorado already argued (incorrectly) that everything
on Lorie’s website is commercial speech. Appellees’ Br. 56. So Colorado

apparently considers everything on business websites to be connected to
commercial transactions—including political statements like “I hate
30
Christians for meddling in politics” or “Divorce is wrong.” A business

website could not even say “I serve white racists but that is very
difficult for me and I do so under protest.” That statement indicates

someone’s patronage is “undesirable.”
To make matters worse, Colorado already admitted that its
Unwelcome Clause covers statements indicating someone’s presence is
“offensive,” “unwanted,” and “not pleasing.” Aplt. App. 2—450. Courts
routinely condemn similar language as overbroad and vague. Reno v.
ACLU, 521 U.S. 844, 877-79 (1997) (ban on “patently offensive”
communication transmissions to minors overbroad); United Food &
Commercial Workers Union, Local 1099 v. Sw. Ohio Reg’l Transit Auth.,
163 F.3d 341, 360 (6th Cir. 1998) (ban on “aesthetically pleasing” signs
vague). This Court should too.
CONCLUSION
Lorie wants only the freedom to choose what she says as she
serves everyone, no matter who they are. “[W]hen, as here, [Colorado]
seeks to regulate speech itself as a public accommodation, it has gone
too far under Hurley and its interest must give way to the demands of
the First Amendment.” Telescope, 936 F.3d at 758.
Lorie respectfully asks this Court to reverse the district court’s
decision, grant her summary judgment, and allow her to speak freely.
31
Dated: May 28, 2020
Respectfully submitted,
s/ Jonathan A. Scruggs
Kristen K. Waggoner David A. Cortman

Jonathan A. Scruggs John J. Bursch
Katherine L. Anderson Alliance Defending Freedom
Alliance Defending Freedom 440 First Street NW, Suite 600
15100 N. 90th Street Washington, DC 20001
Scottsdale, AZ 85260 (202) 393-8690
(480) 444-0020 [email protected]
[email protected] [email protected]
[email protected]
[email protected]
Attorneys for 303 Creative LLC and Lorie Smith
32
CERTIFICATE OF COMPLIANCE WITH RULE 32(A)

Certificate of Compliance with Type-Volume Limitation,
Typeface Requirements, and Type Style Requirements
1. This brief complies with the type-volume limitation of Fed.

R. App. P. 32(a)(7)(B) because this brief contains 6,494 words, excluding
the parts of the brief exempted by Fed. R. App. P. 32(f).
2. This brief complies with the typeface requirements of Fed. R.
App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P.
32(a)(6) because it has been prepared in a 14-point or greater
proportionally spaced Century Schoolbook typeface using Microsoft
Office 365 Pro Plus.
Date: May 28, 2020 s/ Jonathan A. Scruggs

Jonathan A. Scruggs
33
CERTIFICATE OF DIGITAL SUBMISSION

1. I hereby certify that all required privacy redactions have
been made.
2. I hereby certify that a hard copy of the Appellants’ Reply
Brief will be submitted to the Court pursuant to 10th Cir. R. 31.5 and
will be an exact copy of the version submitted electronically via the

Court’s ECF system.
3. I hereby certify that this document has been scanned for
viruses with the most recent version of a commercial virus scanning
program, Cortex XDR agent, version 7.1.0, and is free of viruses
according to that program.

Jonathan A. Scruggs
34
CERTIFICATE OF SERVICE
I hereby certify that on May 28, 2020, a true and accurate copy of
this brief was electronically filed with the Court using the CM/ECF
system, which will send notification of such filing to the following:
Eric R. Olson
Solicitor General
Billy Lee Seiber

First Assistant Attorney General
Vincent Edward Morscher

Skippere Spear
Jack D. Patten, III
Senior Assistant Attorneys General
1300 Broadway, 10th Floor

Denver, CO 80203
Telephone: (720) 508-6000
Fax: (720) 508-6037
Email: [email protected]
[email protected]
[email protected]
[email protected]
[email protected]
Attorneys for Defendants-Appellees

Jonathan A. Scruggs
35

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Appellate Case: 19-1413 Document: 010110353956 Date Filed: 05/28/2020 Page: 1

Case No. 19-1413

303 CREATIVE LLC and LORIE SMITH,

AUBREY ELENIS, et al.,

On appeal from the United States District Court