NO 19-333 N HE Supreme Court Of The United States
NO. 19-333IN THESupreme Court of the United StatesARLENE’S FLOWERS, INC., D/B/A ARLENE’S FLOWERS ANDGIFTS, AND BARRONELLE STUTZMAN,Petitioners,v.STATE OF WASHINGTON,Respondent.ARLENE’S FLOWERS, INC., D/B/A ARLENE’S FLOWERS ANDGIFTS, AND BARRONELLE STUTZMAN,Petitioners,v.ROBERT INGERSOLL AND CURT FREED,Respondents.On Petition for Writ of Certiorari to theSupreme Court of WashingtonPETITION FOR REHEARINGDAVID A. CORTMANRORY T. GRAYALLIANCE DEFENDINGFREEDOM1000 Hurricane Shoals Rd.Suite D-1100Lawrenceville, GA 30043(770) 339-0774KRISTEN K. WAGGONERCounsel of RecordJOHN J. BURSCHERIN MORROW HAWLEYALLIANCE DEFENDING FREEDOM440 First Street NWSuite 600Washington, DC 20001(202) 393-8690kwaggoner@ADFlegal.orgCounsel for Petitioners
iCORPORATE DISCLOSUREThe Corporate Disclosure Statement in thepetition remains unchanged.
iiTABLE OF CONTENTSCORPORATE DISCLOSURE . iAPPENDIX TABLE OF CONTENTS . iiiTABLE OF AUTHORITIES . ivPETITION FOR REHEARING . 1REASONS FOR GRANTING REHEARING . 1I. The Tenth Circuit’s decision deepens thelower-court split over when custom weddingexpression constitutes “speech” and whetherpublic accommodation laws may compelartistic expression. . 3A. 303 Creative exacerbates the split ofauthority over whether custom weddingart constitutes “speech.” . 3B. Public accommodations laws are beingused to compel speech in violation of aspeaker’s sincere religious beliefs. . 6II. The Tenth Circuit’s ruling on strict scrutiny,which dovetails with the WashingtonSupreme Court’s here, conflicts with theEighth Circuit’s holding in Telescope Mediaand creates a new inter-circuit split. . 8III.The Tenth Circuit’s decision vividly illustratesthe unworkability of Employment Division v.Smith. . 9IV. This in an appropriate case for rehearing. . 11CONCLUSION . 13Certificate of Counsel. 14
iiiAPPENDIXTABLE OF CONTENTSOpinion, 303 Creative LLC, et al v. AubreyElenis, et al, U.S. Court of Appeals for TenthCircuit (July 26, 2021) . 1
ivTABLE OF AUTHORITIESCases303 Creative LLC v. Elenis,No. 19-1413, F.4th , 2021 WL(July 26, 2021) . 1Brush & Nib Studio, LC v. City of Phoenix,448 P.3d 890 (Ariz. 2019) . 4Craig v. Masterpiece Cakeshop, Inc.,370 P.3d 272 (Colo. App. 2015) . 4Elaine Photography, LLC v. Willock,309 P.3d 53 (N.M. 2013) . 4Employment Division v. Smith,494 U.S. 872 (1990). 9Fulton v. City of Philadelphia,141 S. Ct. 1868 (2021). 1, 8, 10Hurley v. Irish-American Gay, Lesbian &Bisexual Group of Boston,515 U.S. 557 (1995). 3, 6, 8Kaplan v. California,413 U.S. 115 (1973). 3Klein v. Oregon Bureau of Labor & Industries,410 P.3d 1051 (Or. Ct. App. 2017) . 4Masterpiece Cakeshop, Ltd. v. Colorado CivilRights Comm’n,138 S. Ct. 1719 (2018). 3, 4Obergefell v. Hodges,576 U.S. 644 (2015). 12
vRoman Catholic Diocese of Brooklyn v. Cuomo,141 S. Ct. 63 (2020). 12Rumsfeld v. Forum for Academic andInstitutional Rights, Inc.,547 U.S. 47 (2006). 5Scardina v. Masterpiece Cakeshop Inc.,No. 19CV32214 (Denver Dist. Ct.June 15, 2021) . 7Telescope Media Group v. Lucero,936 F.3d 740 (8th Cir. 2019) . 1, 4, 8Trinity Lutheran Church of Columbia, Inc. v.Comer,137 S. Ct. 2012 (2017). 10
1PETITION FOR REHEARINGPetitioners Barronelle Stutzman and Arlene’sFlowers, Inc., d/b/a Arlene’s Flowers and Gifts,petition for rehearing of this Court’s July 2, 2021Order denying their petition for a writ of certiorari.As noted in the Order, Justices Thomas, Alito, andGorsuch would have granted the petition.REASONS FOR GRANTING REHEARINGThis Court’s Rule 44.2 authorizes a petition forrehearing based on “intervening circumstances of asubstantial . . . effect.” Only yesterday, the UnitedStates Court of Appeals for the Tenth Circuit issuedits opinion in 303 Creative LLC v. Elenis, No. 19-1413,F.4th , 2021 WL (July 26, 2021). TheTenth Circuit’s intervening decision substantiallydeepens (to 3-4) the lower-court conflict described inBarronelle’s previous filings in this Court. The TenthCircuit held that Colorado may force a designer tocreate custom websites celebrating same-sexmarriage, despite its ruling that creative artincorporating various media—like Barronelle’s floralart—is “speech.” The Tenth Circuit concluded thatColorado satisfied strict scrutiny, dovetailing with theWashington Supreme Court’s decision below, butconflicting with the Eighth Circuit’s holding inTelescope Media Group v. Lucero, 936 F.3d 740 (8thCir. 2019). Lastly, its opinion vividly illustrates theproblem lower courts will have discerning when a lawis neutral and generally applicable, even after Fultonv. City of Philadelphia, 141 S. Ct. 1868 (2021).
2The Tenth Circuit’s new decision warrants thisCourt’s rehearing and either a grant or hold ofBarronelle’s petition for certiorari.
3I.The Tenth Circuit’s decision deepens thelower-court split over when customwedding expression constitutes “speech”and whether public accommodation lawsmay compel artistic expression.A. 303 Creative exacerbates the split ofauthority over whether custom weddingart constitutes “speech.”This Court’s definition of “speech” extends toartistic expression, Hurley v. Irish-American Gay,Lesbian & Bisexual Group of Boston, 515 U.S. 557,569 (1995), such as “pictures, films, paintings,drawings, and engravings, Kaplan v. California, 413U.S. 115, 119–20 (1973), and even abstract art likePollock’s paint drips and Schöenberg’s atonalinstruments, Hurley, 515 U.S. at 569. It also includesexpressive conduct as diverse as “nude dancing,burning the American flag, flying an upside-downAmerican flag with a taped-on peace sign, . . . andflying a plain red flag.” Masterpiece Cakeshop, Ltd. v.Colorado Civil Rights Comm’n, 138 S. Ct. 1719, 1741–42 (2018) (Thomas, J., concurring).Below, Barronelle introduced unopposed experttestimony establishing that her custom floral designsare artistic expression akin to other visual art.Pet.App.398a–401a. Her multi-media works incorporate plants, fabrics, pictures, and other objects toconvey expressive messages, and she has her own“recognizable” style. Pet.8 (citations omitted). TheWashington Attorney General conceded that thesecustom floral arrangements are “a form ofexpression.” Pet.26.
4Nonetheless, the Washington Supreme Courtruled that her floral art was not protected speech orexpressive conduct, Pet.App.42a, 49a, and that judges“cannot be in the business of deciding whichbusinesses” merit speech protection, Pet.App.49a.This holding followed Elaine Photography, LLC v.Willock, 309 P.3d 53 (N.M. 2013) (weddingphotography is not protected speech), Klein v. OregonBureau of Labor & Industries, 410 P.3d 1051 (Or. Ct.App. 2017) (custom wedding cakes are not protectedspeech), cert. granted, judgment vacated, 139 S. Ct.2713 (2019), and Craig v. Masterpiece Cakeshop, Inc.,370 P.3d 272 (Colo. App. 2015), rev’d sub nom.Masterpiece Cakeshop, 138 S. Ct. 1719 (same). Andthe holding conflicted with Telescope Media Group v.Lucero, 936 F.3d 740 (8th Cir. 2019) (wedding video isprotected speech), and Brush & Nib Studio, LC v. Cityof Phoenix, 448 P.3d 890 (Ariz. 2019) (custom weddinginvitations are protected expression).The Tenth Circuit’s intervening decision comesdown decisively on Barronelle’s side of thatintractable split of authority, concluding that 303’s“creation of wedding websites is pure speech.” App.20.“The websites [303] intend[s] to offer ‘celebrate andpromote the couple’s wedding and unique love story’by combining custom text, graphics, and othermedia,” id., just like Barronelle’s custom floralarrangements. “The websites consequently expressapproval and celebration of the couple’s marriage,which is itself often a particularly expressive event,”id., just like Barronelle’s art. And “[303’s] customwebsites are similar to wedding videos andinvitations, both of which have also been found to be
5speech,” id. at 21 (citing Telescope Media and Brush& Nib), again, just like Barronelle’s custom floral art.Critically, the Tenth Circuit’s “analysis relie[d] onthe custom and unique nature of [303’s] services,rather than their chosen medium.” App.21.“[C]reating a website (whether through words,pictures, or other media) implicates [303’s] uniquecreative talents, and is thus inherently expressive.”Ibid. This holding—supported by seven other circuitswhich have held that visual art merits full speechprotection, Pet.28—conflicts directly with theWashington Supreme Court’s decision here.The Tenth Circuit’s decision also repudiated theWashington Supreme Court’s reasoning. Below, theWashington Supreme Court held that Barronelle’scustom floral art “is like the unprotected conduct in”Rumsfeld v. Forum for Academic and InstitutionalRights, Inc., 547 U.S. 47 (2006) (“FAIR”).Pet.App.42a–43a, 47a. But the Tenth Circuitexplained that what was at issue in FAIR—hostingmilitary interviews and recruiting receptions oncampus—was easily distinguished from an artistusing her “unique creative talents,” which is“inherently expressive.” App.21. And the TenthCircuit further distinguished FAIR because the hostschool there was “not speaking,” whereas 303’s“speech is implicated even where [its] services arerequested by a third-party.” Ibid.Likewise, in ruling against Barronelle, theWashington Supreme Court held that a “decision toeither provide or refuse to provide flowers for awedding does not inherently express a message aboutthat wedding.” Pet.App.43a. Colorado made the exact
6same argument in 303 Creative. App.23 (“Coloradoasserts that [its law] only regulates [303’s] conduct inpicking customers and does not regulate [303’s]speech.”). But the Tenth Circuit rejected that claim asinconsistent with this Court’s decision in Hurley,reasoning: “As with the Massachusetts publicaccommodations law in Hurley, [Colorado’s law] hasthe effect ‘of declaring the sponsors’ speech itself to bethe public accommodation.’” Ibid. (citing Hurley, 515U.S. at 573). In sum, 303 Creative squarely conflictswith the Washington Supreme Court’s decision belowand supports this Court’s review.B.Public accommodations laws are beingused to compel speech in violation of aspeaker’s sincere religious beliefs.In 303 Creative, the Tenth Circuit held that astate may force a creative professional to speak inviolation of his or her religious views. This means thatcreative professionals in the Tenth Circuit, likecreative professionals in Washington State such asBarronelle, must either create expressive art forsame-sex weddings or shutter their weddingbusinesses entirely. These rulings squarely conflictwith the Eighth Circuit and the Arizona SupremeCourt.In 303 Creative, the Tenth Circuit forthrightlyrecognized that Colorado’s public accommodation law“‘compels’ [303] to create speech that celebrates samesex marriages.” App.23. That is, “[b]y compelling[303] to serve customers they would otherwise refuse,[they] are forced to create websites—and thus,speech—that they would otherwise refuse.” Ibid. TheTenth Circuit “recognize[d] that ‘compelled speech is
7deeply suspect in our jurisprudence—and rightly so,given the unique harms it presents,’” yet concludedthat Colorado could still force 303 to create websitescelebrating same-sex marriages. Id. at 32. Similarly,without this Court’s review, Barronelle will be put toa Hobson’s choice: either celebrate same-sex weddingswith her custom floral art or give up her weddingbusiness entirely.Further, in 303 Creative, the Tenth Circuitconcluded its free-speech analysis by holding thatColorado’s law “works as a content-based restriction.”App.23–24. That was because 303 could not “createwebsites celebrating opposite-sex marriages, unless[it] also agree[d] to serve customers who requestwebsites celebrating same-sex marriages.” Id. at 24.Indeed, said the court, eliminating the viewpoint thatmarriage is between one man and one woman was theColorado law’s “very purpose.” Ibid. The same is truein Barronelle’s case, which supports rehearing here.So too for the fact that state officials are becomingincreasingly emboldened in their efforts to compelspeech in violation of a speaker’s sincere religiousbeliefs. See, e.g., Scardina v. Masterpiece CakeshopInc., No. 19CV32214 (Denver Dist. Ct. June 15, 2021)(holding that Colorado may compel Jack Phillips tocreate a gender-transition cake), Supp.App.1a. Thepractical result of the conflicting rulings regardingreligious and free speech protections from publicaccommodations laws that continue to pile up is thatWashington, Oregon, Colorado, Kansas, New Mexico,Oklahoma, Utah, and Wyoming may compelprofessional speech creators to speak, whereasArkansas, Iowa, Minnesota, Missouri, Nebraska,North Dakota, and South Dakota may not. Until this
8Court resolves the questions presented byBarronelle’s petition for certiorari, “[i]ndividuals andgroups across the country will pay the price—indollars, in time, and in continued uncertainty abouttheir religious liberties.” Fulton, 141 S. Ct. at 1930(Gorsuch, J., concurring).II. The Tenth Circuit’s ruling on strict scrutiny,which dovetails with the WashingtonSupreme Court’s here, conflicts with theEighth Circuit’s holding in Telescope Mediaand creates a new inter-circuit split.In Barronelle’s case, the Washington SupremeCourt held that even if strict scrutiny applied, theState could satisfy it, Pet.App.63a–67a, a ruling herpetition argued conflicts with the Eighth Circuit’sanalysis in Telescope Media Group. Pet.33–34. TheEighth Circuit recognized that “as compelling as theinterest in preventing discriminatory conduct may be,speech is treated differently under the FirstAmendment.” 936 F.3d at 755. It held that Minnesotalacked a valid interest in applying its publicaccommodations law to speech because the state “maynot [declar[e] [another’s] speech itself to be [a] publicaccommodation’ or grant ‘protected individuals . theright to participate in [another’s] speech.’” Id. at 755(quoting Hurley, 515 U.S. at 572–73).The Tenth Circuit’s decision in 303 Creative sideswith the Washington Supreme Court and creates anew circuit split. It held that applying Colorado’spublic accommodation law to a custom weddingwebsite designer was narrowly tailored to serve thestate’s “interest in ensuring equal access to publiclyavailable goods and services.” App.27 (quotation
9omitted); accord Pet.App.66a (identifying acompelling interest in “eradicating barriers to theequal treatment of all citizens in the commercialmarketplace”). According to the Tenth Circuit, itsatisfies strict scrutiny for a state to force anyone whooffers “custom and unique services [that] are speech”for sale to do so for same-sex weddings, otherwise itwould “relegate LGBT consumers to an inferiormarket because [these speech creators’] uniqueservices are, by definition, unavailable elsewhere.”App.28; accord id. at 29 (likening speech creators’unique services “to a monopoly”).The circuit conflict is stark. While the TenthCircuit and Washington’s Supreme Court’s strictscrutiny analysis always allows the state to forceprofessional speech creators to lionize same-sexweddings, the Eighth Circuit’s reasoning never allowsthis result. There is no need for further percolation:with the Tenth Circuit’s ruling in 303 Creative, twocourts of appeals and the Washington Supreme Courthave fully explored the issues involved. Rehearing iswarranted.III. The Tenth Circuit’s decision vividlyillustrates the unworkability of EmploymentDivision v. Smith.Barronelle’s petition also highlighted theWashington Supreme Court’s ruling that hercompelled-participation claim under the FreeExercise Clause was foreclosed by EmploymentDivision v. Smith, 494 U.S. 872 (1990). Pet.23 (citingPet.App.50a–56a). As Barronelle explained, if “Smithallows the State [of Washington] to compel [her] toattend and participate in sacred events contrary to
10her faith, it should be overruled.” Pet.25. A majorityof this Court recently expressed general agreementwith that proposition. Fulton v. City of Philadelphia,141 S. Ct. 1868, 1882 (2021) (Barrett, J., joined byKavanaugh J., concurring) (“it is difficult to see whythe Free Exercise Clause—lone among the FirstAmendment freedoms—offers nothing more thanprotection from discrimination”); id. at 1931 (Alito, J.,joined by Thomas and Gorsuch, J.J., concurring)(“Smith committed a constitutional error. Only wecan fix it.”).The Tenth Circuit’s decision in 303 Creativehighlights the need for this Court to overrule andreplace Smith because lower-court judges cannot evendiscern its applicability. For example, the 303Creative panel majority concluded that Colorado’spublic-accommodations law was neutral andgenerally applicable under Smith. App.35. But indissent, Chief Judge Tymkovich vehementlydisagreed because “Colorado has allowed exceptions”to its law. App.88. “In fact, the entire [Colorado]enforcement mechanism is structured to make caseby-case determinations.” Ibid. In this respect, “[t]hereis no meaningful difference between the [Colorado]Commission’s role in enforcing [the publicaccommodations law] and the Commissioner’s role inFulton in parceling out exceptions for foster carecontracts.” Ibid.As members of this Court have emphasized, theFirst Amendment’s text “guarantees the free exerciseof religion, not just the right to inward belief.” TrinityLutheran Church of Columbia, Inc. v. Comer, 137 S.Ct. 2012, 2026 (2017) (Gorsuch, J., concurring). It isinconceivable that the Constitution’s protection for
11religious exercise allows the government to forceBarronelle and many other creative professionals tojoin in a religious exercise that violates their faith.Yet Smith’s continuing viability—and the lowercourts’ inability to agree on when Smith applies, evenafter Fulton—means that such coercion will continueunabated. Again, rehearing is warranted.IV. This in an appropriate case for rehearing.Barronelle has been embroiled in litigation foralmost nine years, and with this Court’s denial of herpetition, she now faces a crippling financial penalty inthe form of Respondents’ claim for attorney fees.Because the Washington Supreme Court affirmedjudgments against her personally and professionally,that may very well bankrupt her. All this because shereferred a request to participate in and create art forone ceremony that violates her religious convictions—after nearly a decade of creating artistic floralarrangements for her friend and his same-sex partnerto celebrate other events.Barronelle’s petition in this case established deepsplits of lower-court authority, attracting three votesfor a grant. Had the 303 Creative decision been addedto the conflicts—supporting in every material respectthat (1) Barronelle’s art is constitutionally protected,and (2) Respondents’ application of Washington’spublic-accommodations law to persecute her requiresapplication of strict scrutiny—it certainly could haveinfluenced the vote of one more Justice.Resolution of the issues raised in Barronelle’spetition and the Tenth Circuit’s 303 Creative rulingcannot wait. Not just Barronelle’s livelihood but those
12of other creative professionals hang in the balance.And the Tenth Circuit’s ruling will result in stateslike Washington and Colorado redoubling their effortsto “stamp out every vestige of dissent” and “vilifyAmericans” who continue to believe that marriage isbetween one woman and one man. Obergefell v.Hodges, 576 U.S. 644, 741 (2015) (Alito, J.,dissenting). The petition in Barronelle’s case is fullybriefed and allows this Court to hear oral argumentand resolve these critical issues at the earliestopportunity.Washington’s harassment of Barronelle “strike[s]at the very heart of the First Amendment’s guaranteeof religious liberty.” Roman Catholic Diocese ofBrooklyn v. Cuomo, 141 S. Ct. 63, 68 (2020). ThisCourt should reconsider its denial of Barronelle’spetition and either grant the petition outright or holdit for consideration with the 303 Creative petition thatis forthcoming later this year. (Barronelle’s counselalso serves as counsel to 303 Creative and representsto the Court that a petition will be filed). If the latter,the Court will have the option of granting bothpetitions and consolidating the cases, or granting onepetition and holding the other for a GVR.
13CONCLUSIONFor the foregoing reasons, and those stated in thepetition for a writ of certiorari, the Court should grantrehearing, grant the petition for writ of certiorari, andreview the judgment below. Alternatively, the Courtshould hold the petition pending the filing of apetition for certiorari by 303 Creative, then considerboth petitions together.Respectfully submitted,DAVID A. CORTMANRORY T. GRAYALLIANCE DEFENDINGFREEDOM1000 Hurricane ShoalsRd. Suite D-1100Lawrenceville, GA 30043(770) 339-0774JULY 27, 2021KRISTEN K. WAGGONERCounsel of RecordJOHN J. BURSCHERIN MORROW HAWLEYALLIANCE DEFENDINGFREEDOM440 First Street NWSuite 600Washington, DC 20001(202) 393-8690kwaggoner@ADFlegal.org
APPENDIX
APPENDIX TABLE OF CONTENTSOpinion, 303 Creative LLC, et al v. AubreyElenis, et al, U.S. Court of Appeals for TenthCircuit (July 26, 2021) . 1
1FILEDUnited States Court of AppealsTenth CircuitJuly 26, 2021Christopher M. WalpertClerk of CourtPublishUNITED STATES COURT OF APPEALSFOR THE TENTH CIRCUIT303 CREATIVE LLC, a limitedliability company; LORIESMITH,Plaintiffs – Appellants,v.AUBREY ELENIS; CHARLESGARCIA; AJAY MENON;MIGUEL RENE ELIAS;RICHARD LEWIS; KENDRAANDERSON; SERGIOCORDOVA; JESSICAPOCOCK; PHIL WEISER,No. 19-1413
2Defendants – l from the United States District CourtFor the District of Colorado(D.C. No. 1:16-CV-02372-MSK-CBS)***Before TMYKOVICH, Chief Judge, BRISCOE, andMURPHY, Circuit Judges.BRISCOE, Circuit Judge.I.IntroductionAppellants Lorie Smith and her website lants”) appeal the district court’s grant ofsummary judgment in favor of Appellees AubreyElenis, Director of the Colorado Civil Rights Division(the “Director”), Anthony Aragon, Ulysses J. Chaney,Miguel Rene Elias, Carol Fabrizio, Heidi Hess, RitaLewis, and Jessica Pocock, members of the ColoradoCivil Rights Commission (the “Commission”), andPhil Weiser, Colorado Attorney General (collectively,“Colorado”). Appellants challenge Colorado’s Anti-
3Discrimination Act (“CADA”) on free speech, freeexercise, and vagueness and overbreadth grounds.As to our jurisdiction, we hold that Appellantshave standing to challenge CADA. As to the merits,we hold that CADA satisfies strict scrutiny, and thuspermissibly compels Appellants’ speech. We also holdthat CADA is a neutral law of general applicability,and that it is not unconstitutionally vague oroverbroad. Accordingly, exercising jurisdiction under28 U.S.C. § 1291, we affirm the district court’s grantof summary judgment in favor of Colorado.II. BackgroundA. Factual Background1. CADACADA restricts a public accommodation’s abilityto refuse to provide services based on a customer’sidentity. Specifically, CADA defines a publicaccommodation as “any place of business engaged inany sales to the public and any place offering services,facilities, privileges, advantages, or accommodationsto the public.” Colo. Rev. Stat. § 24-34-601(1).Exempted from CADA’s definition of publicaccommodations are places that are “principally usedfor religious purposes.” Id.Under CADA’s “Accommodation Clause,” a publicaccommodation may not:directly or indirectly . . . refuse . . . to anindividual or a group, because of . . .sexual orientation . . . the full and equalenjoyment of the goods, services,facilities, privileges, advantages, or
4accommodations of a place of publicaccommodation . . . .Colo. Rev. Stat. § 24-34-601(2)(a).Under CADA’s “Communication Clause,” a publicaccommodation also may not:directly or indirectly . . . publish . . . any. . . communication . . . that indicatesthat the full and equal enjoyment of thegoods, services, facilities, privileges,advantages, or accommodations of aplace of public accommodation will berefused . . . or that an individual’spatronage . . . is unwelcome,objectionable,unacceptable,orundesirable because of . . . sexualorientation . . . .Id.CADA exempts certain sex-based restrictions fromthe Accommodation Clause and CommunicationClause. Specifically, under CADA, “it is not adiscriminatory practice for a person to restrictadmission to a place of public accommodation toindividuals of one sex if such restriction has a bonafide relationship to the goods, services, facilities,privileges, advantages, or accommodations of suchplace of public accommodation.” Colo. Rev. Stat. § 2434-601(3).CADA provides several different means ofenforcement. A person alleging a violation of CADAcan bring a civil action in state court. The state courtmay levy a fine of “not less than fifty dollars nor more
5than five hundred dollars for each violation.” Colo.Rev. Stat. § 24-34-602(1)(a). A complainant can alsofile charges alleging discrimination with the ColoradoCivil Rights Division. The Commission, individualCommissioners, or the Colorado Attorney Generalmay also independently file charges allegingdiscrimination “when they determine that the allegeddiscriminatory or unfair practice imposes asignificant societal or community impact.” Aplts.’App. at 2-315, ¶ 7. The Director of the Civil RightsDivision then investigates the allegations anddetermines whether the charge is supported byprobable cause. If probable cause is found, theDirector provides the parties with written notice andcommences a compulsory mediation. If mediationfails, a hearing may be held before the Colorado CivilRights Commission, a single Commissioner, or anadministrative law judge. If a violation is found aftera hearing, the Commission may issue a cease anddesist order against the offending publicaccommodation.In a different case, Colorado enforced CADAagainst a bakery that, because of its owner’s religiousbeliefs, refused to provide custom cakes thatcelebrated same-sex marriages. That case eventuallymade its way up to the United States Supreme Court,where the Court ruled in favor of the baker. SeeMasterpiece Cakeshop, Ltd. v. Colorado Civil RightsComm’n, 138 S. Ct. 1719 (2018). There, the Court heldthat Colorado violated the Free Exercise Clause byenforcing CADA in a manner “inconsistent with theState’s obligation of religious neutrality.” Id. at 1723.The Court relied, in part, on statements made by aCommissioner who disparaged the baker’s religious
6beliefs when the Commission adjudicated that case.Id. at 1729. The Court also noted that, on at leastthree other occasions, Colorado declined to enforceCADA against other bakers who refused to createcustom cakes that disparaged same-sex marriages.Id. at 1730.At a public meeting held a few days after theCourt’s ruling in Masterpiece Cakeshop, a singleCommissioner opined that, despite the Court’s ruling,the Commissioner who was referenced in MasterpieceCakeshop did not say “anything wrong.” Aplts.’ App.at 3-609. Others at that hearing, however, includingDirector Elenis, voiced agreement with the Court’sruling and their commitment to follow that ruling.See, e.g., id. at 3-606 (Director Elenis: “So in thesecases going forward, Commissioners and ALJs andothers, including the Staff at the Division, have to becareful how these issues are framed so that it’s clearthat full consideration was given to sincerely—whatis termed as sincerely-held religious objections.”).2. Appellants303 Creative is a for-profit, graphic and websitedesign company; Ms. Smith is its founder and solemember-owner. Appellants are willing to work withall people regardless of sexual orientation. Appellantsare also generally willing to create graphics orwebsites for lesbian, gay, bisexual, or transgender(“LGBT”) customers. Ms. Smith sincerely believes,however, that same-sex marriage conflicts with God’swill. Appellants do not yet offer wedding-relatedservices but intend to do so in the future. Consistentwith Ms. Smith’s religious beliefs, Appellants intendto offer wedding websites that celebrate opposite-sex
7marriages but intend to refuse to create similarwebsites that celebrate same-sex marriages.Appellants’ objection is based on the message of thespecific website; Appellants will not create a websitecelebrating same-sex marriage regardless of whetherthe customer is the same-sex couple themselves, aheterosexual friend of the couple, or even adisinterested wedding planner requesting a mock-up.As part of the expansion, Appellants also intend topublish a statement explaining Ms. Smith’s religiousobjections (the “Proposed Statement”):These same religious convictions thatmotivate me also prevent me fromcreating websites promoting andcelebrating ideas or messages thatviolate my beliefs. So I will not be able tocreate websites for same-sex marriagesor any other marriage that is notbetween one man and one woman. Doingthat would compromise my Christi
NO. 19-333 IN THE Supreme Court of the United States ARLENE'S FLOWERS, INC., D/B/A ARLENE'S FLOWERS AND GIFTS, AND BARRONELLE STUTZMAN, Petitioners, v. STATE OF WASHINGTON, Respondent. ARLENE'S FLOWERS, INC., D/B/A ARLENE'S FLOWERS AND GIFTS, AND BARRONELLE STUTZMAN, Petitioners, v. ROBERT INGERSOLL AND CURT FREED, Respondents. On Petition for Writ of Certiorari to the
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