DATE FILED: February 27, 2024 4:25 PM

THE SUPREME COURT OF THE STATEFILING ID: 7D45C7F73861B

OF COLORADO
CASE NUMBER: 2023SC116

2 E. 14th Avenue
Denver, CO 80203

On Petition for Writ of Certiorari to the

Colorado Court of Appeals, Case No.
2021CA1142, Judges Dunn, Grove, Schutz

Defendants-Petitioners: MASTERPIECE
CAKESHOP INC. and JACK PHILLIPS,
and
Plaintiff-Respondent: AUTUMN SCARDINA. ▲ COURT USE ONLY ▲

Attorneys for Petitioners-Appellants/ Case Number: 2023SC116

Cross-Appellees:
ANDREA JOY CAMPBELL
MASSACHUSETTS ATTORNEY GENERAL
Adam M. Cambier
Assistant Attorney General
Office of the Massachusetts Attorney General
One Ashburton Place
Boston, MA 02108
Phone: 617-963-2278
Email: [email protected]
Admitted pro hac vice
Eric Olson, Atty. Reg. # 36414
Olson Grimsley Kawanabe Hinchcliff &
Murray LLC
700 17th Street, Suite 1600
Denver, CO 80202
Phone: 303-535-9155
Email: [email protected]

BRIEF OF AMICI CURIAE MASSACHUSETTS AND 17 OTHER

STATES IN SUPPORT OF PLAINTIFF-RESPONDENT
CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with all requirements of C.A.R.
28, C.A.R. 29, and C.A.R. 32, including all formatting requirements set
forth in these rules. Specifically, the undersigned certifies that the brief
complies with C.A.R. 28(g) and C.A.R. 29, because it contains 4,725
words. I acknowledge that this brief may be stricken if it fails to comply
with any of the requirements of C.A.R. 28, C.A.R. 29, and C.A.R. 32.

/s/ Eric Olson

______________________________
Attorney for Amici Curiae
TABLE OF CONTENTS

CERTIFICATE OF COMPLIANCE ........................................................... i

TABLE OF CONTENTS ............................................................................ i
TABLE OF AUTHORITIES ......................................................................ii
INTERESTS OF AMICI CURIAE ............................................................ 1
ARGUMENT ............................................................................................. 3
I. State Public Accommodation Laws Are Deeply Rooted in History
and Serve to Combat Invidious Discrimination. ................................... 3
A. Public Accommodations Statutes Have Long Been a
Centerpiece of Efforts to Prevent Discrimination in Commercial
Establishments. .................................................................................. 3
B. Public Accommodations Laws Serve to Protect Individuals and
Society At Large from Significant Harms. ........................................ 8
C. LGBTQ Americans Suffer the Harms from Discrimination
That Public Accommodations Laws Strive to Eliminate................. 12
II. The Fact-Intensive Inquiry 303 Creative Requires Does Not
Create a First Amendment Exemption from Colorado’s Public
Accommodations Law in This Case. .................................................... 16
A. The 303 Creative opinion requires courts to pay close attention
to the facts before them in analyzing First Amendment claims. .... 16
B. The facts of this case make clear that applying Colorado’s
public accommodations law to Petitioners in the circumstances
presented does not offend the First Amendment. ........................... 20
III. Petitioners’ Broad Construction of 303 Creative’s Exception to
Public Accommodation Laws Would Allow for Widespread and Varied
Forms of Discrimination. ..................................................................... 24
CONCLUSION ........................................................................................ 26
CERTIFICATE OF SERVICE................................................................. 30

i
TABLE OF AUTHORITIES

CASES

303 Creative LLC v. Elenis,

600 U.S. 570 (2023) ................................................................ passim

Abrams v. United States,

250 U.S. 616 (1919) .............................................................................. 10

Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte,

481 U.S. 537 (1987) .......................................................................... 8

Bostock v. Clayton County, Georgia,

140 S. Ct. 1731 (2020) .................................................................... 15

Christian Legal Soc. v. U.C. Hastings,

561 U.S. 661 (2010) ................................................................... 15-16

Boy Scouts of America v. Dale,

530 U.S. 640 (2000) .................................................................. 20, 22

Daniel v. Paul,
395 U.S. 298 (1969) .................................................................... 8, 10

Fulton v. City of Philadelphia,

141 S. Ct. 1868 (2021) .................................................................... 12

Heart of Atlanta Motel, Inc. v. United States,

379 U.S. 241 (1964) ............................................................. 3, 6, 8-10

Hurley v. Irish American Gay, Lesbian & Bisexual Group

of Boston,
515 U.S. 557 (1995) ................................................. 3, 5, 7, 19-20, 22

ii
Katzenbach v. McClung,
379 U.S. 294 (1964) ........................................................................ 16

Knox v. Service Empls. Int'l Union, Local 1000,

567 U.S. 298 (2012) ........................................................................ 11

Lane v. Cotton,
12 Mod. 472 88 Eng. Rep. 1458 (K.B. 1701) .......................................... 3

Lawrence v. Texas,
539 U.S. 558 (2003) ....................................................................... 16

Lombard v. Louisiana,
373 U.S. 267 (1963) .......................................................................... 3

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights

Comm’n,
138 S. Ct. 1719 (2018) ........................................................ 10, 12, 26

Obergefell v. Hodges,
576 U.S. 644 (2015) ........................................................................ 12

Roberts v. United States Jaycees,

468 U.S. 609 (1984) ..................................................................... 8-10

Romer v. Evans,
517 U.S. 620 (1996) ...................................................................... 4, 5

Rumsfeld v. Forum for Acad. & Inst’l Rights, Inc.,

547 U.S. 47 (2006) ..................................................................... 22-24

Scardina v. Masterpiece Cakeshop Inc.,

528 P.3d 926 (Colo. Ct. App. 2023) .......................... 15, 20-21, 23-24

Snyder v. Phelps,
562 U.S. 443 (2011) ........................................................................ 25

iii
State v. Arlene’s Flowers, Inc.,
441 P.3d 1203 (Wash. 2019) ........................................................... 24

Texas v. Johnson,
491 U.S. 397 (1989) ........................................................................ 22

U.S. v. O’Brien,
391 U.S. 367 (1968) ........................................................................ 23

CONSTITUTIONAL PROVISIONS AND STATUTES

U.S. Const. amend. 1 ....................................................................... passim

Act Forbidding Unjust Discrimination on Account of Color or Race, 1865

Mass. Acts, ch. 277 (May 16, 1865) .................................................. 5

Colo. Rev. Stat. § 24-34-601(1) .................................................................. 7

19 Guam Code Ann. § 2110 ....................................................................... 6

Iowa Code § 67-5902(9) ............................................................................. 7

La. Rev. Stat. § 51:2232(10) ...................................................................... 7

N.J. Stat. Ann. § 10:5-5(l) ......................................................................... 7

P.R. Laws Ann. Tit. 1 § 13......................................................................... 6

S.C. Code § 45-9-10.................................................................................... 7

V.I. Code Ann. Tit. 10 § 3 .......................................................................... 6

Vt. Stat. Ann. Tit. 9, § 4501(1) .................................................................. 7

iv
MISCELLANEOUS

David S. Bogen, The Innkeeper’s Tale: The Legal Development of a

Public Calling, 1996 Utah L. Rev. 51 (1996) ................................... 4

Charles K. Burdick, The Origin of the Peculiar Duties of Public Service

Companies, 11 Colum. L. Rev. 514 (1911) ....................................... 4

Center for the Study of Inequality, Cornell University, What Does the
Scholarly Research Say About the Effects of Discrimination on the
Health of LGBT People?, What We Know Project (2019) .............. 14

First Amended Compl., Zawadski v. Brewer Funeral Servs., No. 17-cv-

19, Dkt. 12 (Cir. Ct., Pearl River Cnty., Miss., Mar. 7, 2017)............... 9

Tim Fitzsimons, Nearly 1 in 5 Hate Crimes Motivated by Anti-LGBTQ

Bias, FBI Finds, NBC News (Nov. 12, 2019)................................. 13

Mark L. Hatzenbuehler et al., State-Level Policies and Psychiatric

Morbidity in Lesbian, Gay, and Bisexual Populations, 99 Am. J.
Pub. Health 2275 (2009) ................................................................ 14

S.E. James et al., Early Insights: A Report of the 2022 U.S. Transgender
Survey, National Center for Transgender Equality (2024) ........... 14

Lisa G. Lerman & Annette K. Sanderson, Discrimination in Access to

Public Places: A Survey of State and Federal Public
Accommodation Laws, 7 N.Y.U. REV. L. & SOC. CHANGE 215 (1978)
.......................................................................................................... 5

Christy Mallory & Brad Sears, Refusing to Serve LGBT People: An

Empirical Assessment of Complaints Filed under State Public
Accommodations Non-Discrimination Laws, 8 J. Res. Gender
Stud. 106 (2018) ............................................................................. 13

v
Christy Mallory & Brad Sears, LGBT Discrimination, Subnational
Public Policy, and Law in the United States, in Oxford Research
Encyclopedia of Politics 1 (2020).................................................... 13

Tasseli McKay et al., Understanding (and Acting On) 20 Years of

Research on Violence and LGBTQ + Communities, 20 Trauma,
Violence, & Abuse 665 (2019) ........................................................ 13

National Conference of State Legislatures, State Public Accommodation

Laws (June 25, 2021) ............................................................................. 6

Julia Raifman et al., Association of State Laws Permitting Denial of

Services to Same-Sex Couples with Mental Distress in Sexual
Minority Adults: A Difference-in-Difference-in-Differences
Analysis, 75 JAMA Psychiatry 671 (2018) ............................... 14-15

Julia Raifman et al., Difference-in-Differences Analysis of the Ass'n

Between State Same-Sex Marriage Policies and Adolescent Suicide
Attempts, 171 JAMA Pediatrics 350 (2017) .............................. 14-15

S. Rep. No. 872, 88th Cong., 2d Sess. (1964) ............................................ 9

Joseph Singer, No Right to Exclude: Public Accommodations and

Private Property, 90 Nw. U. L. Rev. 1283 (1996) ............................. 4

vi
INTERESTS OF AMICI CURIAE

Massachusetts, Connecticut, Delaware, the District of Columbia,

Hawai‘i, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New

Jersey, New York, Oregon, Pennsylvania, Rhode Island, Vermont, and

Washington share sovereign and compelling interests in protecting our

residents and visitors from discrimination. Like Colorado, we support

civil rights protections for people belonging to historically

disenfranchised groups, including prohibitions on discrimination in

places of public accommodation: the restaurants, stores, and other

businesses that are part of daily life in a free society. Responding to the

pervasive discrimination that members of these groups have long

suffered and continue to suffer today, public accommodations laws

ensure equal enjoyment of goods and services and combat the severe

personal, economic, and social harms caused by discrimination.

We also share interests in upholding the rights protected by the

First Amendment. We do not seek to abridge the right to hold and

express views regarding gender identity, which underlie Petitioners’

objection to Colorado’s public accommodations law. But, as courts have

1
long recognized, the right to freedom of speech is not infringed by

prohibiting businesses open to the public from turning away customers

on the basis of their race or other characteristics protected by public

accommodations laws.

While the Supreme Court held last year in 303 Creative LLC v.

Elenis, 600 U.S. 570 (2023), that the First Amendment protects certain

market participants from enforcement of antidiscrimination laws in

limited circumstances where they object to a message the consumer

requests that they create, that decision indicates that a close

examination of the facts underlying a claimed First Amendment

defense is necessary—and here, those facts counsel in favor of a finding

in Respondent’s favor. To hold otherwise—and thus to allow Petitioners

to refuse to make Respondent’s requested product even though it means

nothing in particular to Petitioners—would allow market participants

to deny service to members of protected classes in a broad array of

circumstances and would undermine the vital benefits public

accommodations laws provide to residents and visitors. We therefore

join Respondent in supporting affirmance of the judgment below.

2
ARGUMENT

I. State Public Accommodation Laws Are Deeply Rooted in

History and Serve to Combat Invidious Discrimination.

A. Public Accommodations Statutes Have Long Been a

Centerpiece of Efforts to Prevent Discrimination in
Commercial Establishments.

The American legal and political system has long recognized the

importance of public accommodations being open to all. Modern

statutes codify and expand upon a common law doctrine, dating back at

least to the sixteenth century, that generally required public

accommodations to serve all customers. See Heart of Atlanta Motel, Inc.

v. United States, 379 U.S. 241, 261 (1964); see also, e.g., Lombard v.

Louisiana, 373 U.S. 267, 275-77 & n.6 (1963) (Douglas, J., concurring).

“At common law,” the Supreme Court has explained, “innkeepers,

smiths, and others who ‘made profession of a public employment,’ were

prohibited from refusing, without good reason, to serve a customer.”

Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557,

571 (1995) (quoting Lane v. Cotton, 12 Mod. 472, 484-85, 88 Eng. Rep.

1458, 1464-65 (K.B. 1701)).

3
The common-law duty of an establishment engaged in a public or

common calling to “to entertain all persons,” as William Blackstone

described it, arose from the understanding that when a store “hangs out

a sign and opens” itself for business, the offer of service implicitly

extends to all customers. See Joseph Singer, No Right to Exclude:

Public Accommodations and Private Property, 90 Nw. U. L. Rev. 1283,

1309-10, 1322-25 (1996). This duty applied broadly to a range of

businesses, see Charles Burdick, The Origin of the Peculiar Duties of

Public Service Companies, 11 Colum. L. Rev. 514, 522 & nn. 33-39

(1911), and it applied even when the business would otherwise prefer to

exclude a particular customer based on, for example, their status as a

foreigner, see David S. Bogen, The Innkeeper’s Tale: The Legal

Development of a Public Calling, 1996 Utah L. Rev. 51, 76-77 (1996).

Drawing from this common law history, States since the mid-

nineteenth century have enacted statutes barring discrimination in

places of public accommodation. See Romer v. Evans, 517 U.S. 620, 627-

28 (1996). These statutes emerged from the recognition, informed by

the Civil War and debates leading up to the ratification of the

4
Fourteenth Amendment, that despite the clarity of the doctrine, in

practice common law often did not adequately protect Black Americans’

access to goods and services in commerce. See id.; Hurley, 515 U.S. at

571 (describing the post-Civil War enactment of public accommodations

statutes). The first such statute, adopted by Massachusetts in 1865,

provided that “[n]o distinction, discrimination or restriction on account

of color or race shall be lawful in any licensed inn, in any public place of

amusement, public conveyance or public meeting.” Act Forbidding

Unjust Discrimination on Account of Color or Race, 1865 Mass. Acts, ch.

277 (May 16, 1865). And in the two decades that followed, 13 more

States—Colorado, Connecticut, Illinois, Indiana, Iowa, Kansas,

Michigan, Minnesota, Nebraska, New Jersey, New York, Ohio, and

Rhode Island—enacted comparable laws. See Lisa G. Lerman &

Annette K. Sanderson, Discrimination in Access to Public Places: A

Survey of State and Federal Public Accommodation Laws, 7 N.Y.U. Rev.

L. & Soc. Change 215, 239-40 & nn. 171-72, 179 (1978).

Today, there is widespread agreement across American

jurisdictions that society must not tolerate discrimination by entities

5
that choose to provide goods and services to the public. Forty-five

States, as well as the District of Columbia, Guam, Puerto Rico, and the

U.S. Virgin Islands, have enacted public accommodations laws that

protect the public from discrimination based on a range of

characteristics. 1 All of these jurisdictions forbid discrimination on the

basis of race, sex, ancestry or national origin, and religion or creed.2 In

addition, 26 of these jurisdictions forbid discrimination on the basis of

sexual orientation, 25 on the basis of gender identity, 18 on the basis of

marital status, 7 on the basis of veteran or military status, 35 on the

basis of disability, and 20 on the basis of age. 3 These statutes have long

been held constitutional as applied to a range of establishments,

including commercial businesses. See, e.g., Heart of Atlanta, 379 U.S. at

260. Indeed, the laws “are well within the State’s usual power to enact

when a legislature has reason to believe that a given group is the target

1 See National Conference of State Legislatures, State Public

Accommodation Laws (June 25, 2021), https://tinyurl.com/ed8mnpm5;
P.R. Laws Ann. Tit. 1 § 13; V.I. Code Ann. Tit. 10 § 3; 19 Guam Code
Ann. § 2110.
2 See id.
3 See id.

6
of discrimination, and they do not, as a general matter, violate the First

or Fourteenth Amendments.” Hurley, 515 U.S. at 572.

Importantly, state laws requiring non-discriminatory access to

public accommodations do not regulate conduct by private organizations

that do not hold themselves open to the public. Instead, they regulate

only the conduct of business establishments and other similar entities

that do make the choice to hold themselves open to the public at large.

Some States define the covered commercial entities in general terms.

See, e.g., Iowa Code § 67-5902(9); La. Rev. Stat. § 51:2232(10); Vt. Stat.

Ann. tit. 9, § 4501(1). Others list with particularity the types of

establishments covered by the laws. See, e.g., N.J. Stat. Ann. § 10:5-

5(l); S.C. Code § 45-9-10. Still others, like Colorado—which defines

“place of public accommodation” to include “any place of business

engaged in any sales to the public and any place offering services,

facilities, privileges, advantages, or accommodations to the public” and

then lists examples of such businesses—employ a hybrid approach.

Colo. Rev. Stat. § 24-34-601(1). But all public accommodations laws

7
limit their reach to establishments that choose to provide goods or

services to the public.

B. Public Accommodations Laws Serve to Protect

Individuals and Society At Large from Significant
Harms.

The Supreme Court has long recognized that the protections

afforded by public accommodations laws “‘plainly serv[e] compelling

state interests of the highest order.’” Bd. of Dirs. of Rotary Int’l v.

Rotary Club of Duarte, 481 U.S. 537, 549 (1987) (quoting Roberts v.

United States Jaycees, 468 U.S. 609, 624 (1984)). “[N]o action is more

contrary to the spirit of our democracy and Constitution—or more

rightfully resented by a . . . citizen who seeks only equal treatment”—

than a denial of equal service by a business “ostensibly open to the

general public.” Daniel v. Paul, 395 U.S. 298, 306-08 (1969) (quotations

omitted); see also Heart of Atlanta, 379 U.S. at 292 (Goldberg, J.,

concurring) (“Discrimination is not simply dollars and cents,

hamburgers and movies; it is the humiliation, frustration, and

embarrassment that a person must surely feel when he is told that he is

8
unacceptable as a member of the public because of his race or color.”

(quoting S. Rep. No. 872, 88th Cong., 2d Sess., 16 (1964))).

Discrimination by places of public accommodation causes unique

and severe economic, personal, and social harms. It denies equal access

to important goods and services and, by segregating the market, has a

well-established “substantial and harmful effect” on the economy.

Heart of Atlanta, 379 U.S. at 258 (acknowledging broad impacts of

seemingly local discrimination); see also Roberts, 468 U.S. at 625-26.

And many Americans, particularly those who live in less populated

areas, cannot, having been turned away by one business on account of

their identity, simply obtain the same goods or services from another

business: Across wide swaths of this country, customers do not have a

choice among bakeries or funeral homes.4 And more than that,

4 See, e.g., First Amended Compl., Zawadski v. Brewer Funeral

Servs., No. 17-cv-19, Dkt. 12 (Cir. Ct., Pearl River Cnty., Miss., Mar. 7,
2017) (complaint against Mississippi funeral home that had the only
crematorium in the county and abruptly refused to provide mortuary
services upon learning the deceased man was married to a man, forcing
the spouse to scramble to find services at the last minute, 90 miles from
their home).

9
discrimination by places of public accommodation stigmatizes its

victims, causing them intense dignitary injuries and encouraging social

fragmentation and conflict. See Roberts, 468 U.S. at 625-26; Daniel, 395

U.S. at 306; Heart of Atlanta, 379 U.S. at 250; see also Masterpiece

Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719, 1727

(2018) (allowing wedding service providers to refuse to provide goods

and services to same-sex couples would create “a community-wide

stigma inconsistent with the history and dynamics of civil rights laws”).

Thus, beyond the harms to individuals, discrimination by covered

business establishments engenders balkanization in society, harming

the social fabric of the States and the marketplace of ideas fostered by

the First Amendment. See Abrams v. United States, 250 U.S. 616, 630

(1919) (Holmes, J., dissenting). This Court has long recognized the

“importance, both to the individual and to society, of removing the

barriers to . . . political and social integration that have historically

plagued certain disadvantaged groups.” Roberts, 468 U.S. at 626.

When all members of society can access the restaurants and coffee

shops, barber shops and florists, photography companies and tailors

10
that dot the American landscape, Americans of different creeds,

backgrounds, and viewpoints converge and engage in open discourse.

The right of access upheld by public accommodations laws thereby

contributes to the exchange of ideas between groups that the First

Amendment safeguards. See, e.g., Knox v. Service Empls. Int’l Union,

Local 1000, 567 U.S. 298, 309 (2012) (“The First Amendment creates an

open marketplace in which differing ideas about political, economic, and

social issues can compete freely for public acceptance without improper

government interference.” (cleaned up)). Conversely, broadly construed

First Amendment exemptions to public accommodations laws—under

which businesses with some self-identified expressive aspect could

refuse to serve customers belonging to protected classes based on

meaning that those customers attribute to those businesses’ products—

would give rise to segregation in the commercial sphere detrimental to

the very values the First Amendment protects.

11
C. LGBTQ Americans Suffer the Harms from
Discrimination That Public Accommodations Laws
Strive to Eliminate.

A broad First Amendment exemption to public accommodations

laws threatens to exclude people of any religion, race, sex, or nationality

from businesses across our States—and, of course, threatens

antidiscrimination laws the States have enacted to protect LGBTQ

Americans in particular. LGBTQ Americans have faced a long history

of invidious discrimination: fired from their jobs, evicted from their

homes, targeted by police, and denied service by businesses simply

because of their “distinct identity.” Obergefell v. Hodges, 576 U.S. 644,

660 (2015); see also id. at 660-61, 673-74, 677-78. At present, “‘[o]ur

society has come to the recognition that [LGBTQ] persons . . . cannot be

treated as social outcasts or as inferior in dignity and worth.’” Fulton v.

City of Philadelphia, 141 S. Ct. 1868, 1882 (2021) (quoting Masterpiece

Cakeshop, 138 S. Ct. at 1727). And because the governmental interest

in preventing such adverse treatment “is a weighty one,” id., many

States and other jurisdictions prohibit discrimination against LGBTQ

people in places of public accommodation. See Part I.A, supra.

12
Yet harmful discrimination against LGBTQ Americans remains a

persistent problem. LGBTQ Americans are still much more likely to be

bullied, harassed, and attacked in hate crimes than their non-LGBTQ

peers.5 LGBTQ people also report overt discrimination, particularly in

the form of denial of service by businesses, at rates comparable to, or

greater than, those for other historically disadvantaged groups. 6

Indeed, a recent major survey of transgender and gender-

nonconforming Americans indicate that roughly one in ten respondents

5 See Tasseli McKay et al., Understanding (and Acting On) 20 Years

of Research on Violence and LGBTQ + Communities, 20 TRAUMA,
VIOLENCE, & ABUSE 665, 669-70 (2019); Tim Fitzsimons, Nearly 1 in 5
Hate Crimes Motivated by Anti-LGBTQ Bias, FBI Finds, NBC News
(Nov. 12, 2019), https://tinyurl.com/53awb4mx.
6 See Christy Mallory & Brad Sears, Refusing to Serve LGBT
People: An Empirical Assessment of Complaints Filed under State
Public Accommodations Non-Discrimination Laws, 8 J. RES. GENDER
STUD. 106, 113-16 (2018); Christy Mallory & Brad Sears, LGBT
Discrimination, Subnational Public Policy, and Law in the United
States, in OXFORD RESEARCH ENCYCLOPEDIA OF POLITICS 1, 2-8 (2020),
https://tinyurl.com/yvtrkmwc.

13
had been denied service or equal treatment because of their gender

identity within the last year.7

This continuing discrimination harms the health and well-being of

LGBTQ people, their families, and their communities. A large and

growing body of evidence shows that discriminatory social conditions

have severe negative health impacts on LGBTQ people, including

increased rates of mental health disorders and suicide attempts,

especially for LGBTQ youth. 8 Notably, these outcomes are less severe

and less pervasive in communities that provide LGBTQ people with

7 S.E. James et al., Early Insights: A Report of the 2022 U.S.

Transgender Survey, National Center for Transgender Equality 21
(2024), http://tinyurl.com/4x5c659n.
8 Ctr. for the Study of Inequality, What We Know Project, What
Does the Scholarly Research Say About the Effects of Discrimination on
the Health of LGBT People?, Cornell University (2019),
https://tinyurl.com/2faxfjnu (detailing findings from 300 peer-reviewed
studies); see also, e.g., Julia Raifman et al., Association of State Laws
Permitting Denial of Services to Same-Sex Couples with Mental Distress
in Sexual Minority Adults: A Difference-in-Difference-in-Differences
Analysis, 75 JAMA PSYCHIATRY 671, 672 (2018); Julia Raifman et al.,
Difference-in-Differences Analysis of the Association Between State
Same-Sex Marriage Policies and Adolescent Suicide Attempts, 171
JAMA PEDIATRICS 350, 351 (2017); Mark L. Hatzenbuehler, Structural
Stigma: Research Evidence and Implications for Psychological Science,
71 AM. PSYCHOLOGIST 742, 745-46 (2016).

14
legal protection against discrimination, including in public

accommodations.9

The broad exemption Petitioners seek from Colorado’s public

accommodations law enables precisely the sort of discrimination that

has historically burdened LGBTQ Americans. The company will

provide a pink cake with blue frosting—a cake with no particular

meaning to Petitioners—to a cisgender customer but refuses to do so for

Respondent because of what that cake means to her in light of her

transgender status. This refusal cannot reasonably be divorced from

discrimination based on LGBTQ identity, as the lower court correctly

concluded. See Scardina v. Masterpiece Cakeshop, Inc., 528 P.3d 926,

937-38 (Colo. Ct. App. 2023) (“[T]he Supreme Court has rejected efforts

to differentiate between discrimination based on a person’s status and

discrimination based on conduct that is inextricably intertwined with

such status.”); see also, e.g., Bostock v. Clayton County, 140 S. Ct. 1731,

1741-42 (2020); Christian Legal Soc. v. U.C. Hastings, 561 U.S. 661, 689

9 See Raifman et al. (2018), supra n.8, at 673-75; Raifman et al.

(2017), supra n.8, at 353-55.

15
(2010); Lawrence v. Texas, 539 U.S. 558, 583 (2003). Nor is it a defense

to provide other cakes for LGBTQ customers, see Pet. Br. 31. Public

accommodations laws exist to prevent not only outright exclusion, but

also separate and unequal treatment. Otherwise, our country would be

blighted by segregated businesses that serve in perniciously unequal

ways, reserving some services only for customers who are members of

preferred groups. See, e.g., Katzenbach v. McClung, 379 U.S. 294, 296-

97 (1964) (restaurant serving African American customers only through

a take-out window, not in the dining area). The First Amendment does

not require permitting such unequal treatment by businesses that offer

their goods and services to the public.

II. The Fact-Intensive Inquiry 303 Creative Requires Does Not

Create a First Amendment Exemption from Colorado’s
Public Accommodations Law in This Case.

A. The 303 Creative opinion requires courts to pay close

attention to the facts before them in analyzing First
Amendment claims.

The Supreme Court’s decision last year in 303 Creative LLC v.

Elenis establishes that determining whether the First Amendment may

be invoked by market participants against public accommodations laws,

16
as Petitioners seek to do here, requires a highly fact-intensive inquiry—

an approach consistent with other threads of First Amendment

doctrine. 600 U.S. at 588-92. For that reason, 303 Creative’s ultimate

holding in favor of a wedding website designer claiming a constitutional

exemption from antidiscrimination protections does not reflexively

compel the same result here. Rather, it requires reviewing courts to

take careful account of the facts before them in assessing whether

enforcement of public accommodations laws infringe on First

Amendment freedoms. See id. at 599 (“Doubtless, determining what

qualifies as expressive activity protected by the First Amendment can

sometimes raise difficult questions.”). In this case, the facts before the

Court are dramatically different from the facts of 303 Creative, and they

compel a ruling in favor of Respondent.

The 303 Creative Court’s opinion makes abundantly clear that its

ultimate holding was driven strongly by a series of stipulations entered

into by the parties. Of particular import, the parties stipulated that the

plaintiffs’ “original, customized” wedding websites were “expressive in

nature” and “express [the plaintiffs’] message” concerning marriage. Id.

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at 582-83. These agreed-to facts grounded the legal conclusions that led

to the Court’s ultimate conclusion: Its holding that the plaintiffs’

wedding websites constitute “pure speech” “flow[ed] directly from the

parties’ stipulations,” id. at 587, just as “the parties’ stipulations lead

the way to [the] conclusion” that the plaintiffs’ wedding websites

“involve [their] speech,” id. at 588 (emphasis in original); see also id.

(observing that the ruling in favor of plaintiffs follows from these

conclusions).

The Court also relied directly on the facts of the case in rebutting

arguments against its holding. Colorado, the defendant in that case,

argued that the plaintiffs’ wedding websites were not pure speech and

that the plaintiffs sought to discriminate based on protected status, but

the Court dismissed these positions as “difficult to square with the

parties’ stipulations.” Id. at 593-94; see also id. (noting how “the case

comes to us” in connection with stipulations as lens through which

Colorado’s position should be viewed). The Court’s foundational

reliance on the facts of the case—and its strongest guidance to

subsequent courts analyzing similar claims—is best reflected in its

18
dismissal of the dissent’s proposed hypotheticals concerning other

putatively expressive businesses as irrelevant to the facts before it and

its conclusion that “[t]he parties have stipulated that [the plaintiffs]

seek[] to engage in expressive activity.” Id. at 599 (emphasis in

original). Moreover, the Court agreed with the Tenth Circuit’s

conclusion that, on the facts of the case before it, “the wedding websites

[the plaintiff] seeks to create qualify as ‘pure speech’ under [the

Supreme] Court’s precedents.” Id. at 587 (holding that this “conclusion

… flows directly from the parties’ stipulations”).

The approach for this Court to take is thus clear: Engage robustly

with the facts before it, which sometimes may present “difficult

questions,” id. at 599, and the answer to whether the First Amendment

applies as claimed will follow. This fact-based approach is consonant

with how courts apply the First Amendment in other contexts,

including with respect to public accommodations laws. In Hurley v.

Irish-American Gay, Lesbian and Bisexual Group of Boston, for

instance, the Supreme Court observed that “the reaches of the First

Amendment are ultimately defined by the facts it is held to embrace.”

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515 U.S. at 567. So too in Boy Scouts of America v. Dale, which the

Court deemed “a First Amendment case where the ultimate conclusions

of law are virtually inseparable from findings of fact.” 530 U.S. 640,

648 (2000).

B. The facts of this case make clear that applying

Colorado’s public accommodations law to Petitioners
in the circumstances presented does not offend the
First Amendment.

The facts of this case stand in stark contrast to those that drove

the 303 Creative Court’s holding. The web designer in 303 Creative

sought to provide customers with a product incorporating expressive

messages intended to communicate the designer’s own view of

marriage—leading the Court to conclude that the requested wedding

websites were not just pure speech, but the web designer’s speech. 303

Creative, 600 U.S. at 582, 587-88. Here, however, Petitioners admitted

at trial that the pink and blue cake requested by Respondent “has no

intrinsic meaning and does not express any message.” Scardina, 528

P.3d at 937. The stark question that this case poses, then, is whether a

state law requiring a business to sell an admittedly non-expressive

product to any person wishing to buy it without respect to that person’s

20
protected status offends the First Amendment simply because the buyer

assigns a meaning to it with which the seller disagrees.

The answer to that question is “no.” Unlike 303 Creative, in which

the product for sale (custom-designed wedding websites) was stipulated

to be “expressive in nature” and to “express [plaintiffs’] message

celebrating and promoting [their] view of marriage,” 303 Creative, 600

U.S. at 582 (internal quotation marks omitted), Petitioners here admit

that the product for sale has no expressive meaning to them

whatsoever. Scardina, 528 P.3d at 937. And the Supreme Court has

already rejected the position that the First Amendment somehow

protects refusals to sell products without intrinsic expressive meaning

to members of protected classes. See 303 Creative, 600 U.S. at 598 n.5

(noting that “our case is nothing like a typical application of a public

accommodations law requiring an ordinary, non-expressive business to

serve all customers or consider all applicants”). Consequently, this case

is readily distinguishable from those where a state law circumscribed

inherently expressive conduct and thus was found to run afoul of the

First Amendment. See 303 Creative, 600 U.S. at 587, 594, 603 (where

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Colorado law sought to regulate the sale of custom wedding websites

that constituted “pure speech” and were “expressive in nature,” Court

held that “Colorado seeks to force an individual to speak in ways that …

defy her conscience about a matter of major significance”); Hurley, 515

U.S. at 568 (discussing “inherent expressiveness” of parades); Dale, 530

U.S. at 650 (finding that “an association that seeks to transmit … a

system of values engages in expressive activity”); Texas v. Johnson, 491

U.S. 397, 406 (1989) (“The expressive, overtly political nature of this

conduct was both intentional and overwhelmingly apparent.”).

Rather, the conduct at issue here—selling a cake the vendor does

not view as expressive—is akin to the facts of Rumsfeld v. Forum for

Academic and Institutional Rights, Inc. (FAIR), 547 U.S. 47 (2006),

where law schools refused to allow military recruiters on campus to

protest government policy on military service by gays and lesbians. The

FAIR Court ruled that a law withholding federal funding to schools that

disallowed recruiters on campus did not address expressive conduct

“because the schools are not speaking when they host interviews and

recruiting receptions.” Id. at 64. The Court further explained that “[a]

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law school’s recruiting services lack the expressive quality of a parade, a

newsletter, or the editorial page of a newspaper; its accommodation of a

military recruiter’s message is not compelled speech because the

accommodation does not sufficiently interfere with any message of the

school.” Id. To hold otherwise would be to endorse an “apparently

limitless” view of the First Amendment where conduct becomes

protected expressive speech merely because “the person engaging in the

conduct intends thereby to express an idea”—a view the Court explicitly

rejected. U.S. v. O’Brien, 391 U.S. 367, 376 (1968); FAIR, 547 U.S. at

65-66 (citing O’Brien).

So too here: Any meaning imbued in Respondent’s pink and blue

cake comes from her personal explanation for it, or from her placing it

in a specific context that itself lends additional meaning to the cake’s

colors. Scardina, 528 P.3d at 941. Thus, rather than being a case like

303 Creative where state law would have compelled a business to

engage in pure speech that expressed a message with which the

business disagreed, this is instead a case where Petitioners wish to

refuse to provide an admittedly “nonexpressive product to a protected

23
person based on that person’s intent to use the product as part of a

celebration that [Petitioners] consider[] offensive.” Id. (citing State v.

Arlene’s Flowers, Inc., 441 P.3d 1203 (2019)). Petitioners thus seek

First Amendment protection for their own conduct not based on their

own expression, but based on meaning invested in that conduct by

others—a far-reaching and near-limitless view at odds with existing

constitutional jurisprudence. See, e.g., FAIR, 547 U.S. at 66 (“[W]e have

extended First Amendment protection only to conduct that is inherently

expressive.”).

III. Petitioners’ Broad Construction of 303 Creative’s

Exception to Public Accommodation Laws Would Allow for
Widespread and Varied Forms of Discrimination.

Petitioners’ proposed construction of 303 Creative and related

First Amendment jurisprudence would countenance broad

discrimination, thus undercutting the power of public accommodations

laws and furthering the harms those laws exist to combat. If the First

Amendment protects refusals to make products that creators admit

carry no inherent expressive messages but that may be given meaning

by others, virtually any custom product could be swept into that reach—

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particularly in light of the fact that the meaning at issue here comes

from something as simple as the selection of two colors.

Consequently, members of protected groups could be exposed to

discrimination in a broad swath of the commercial marketplace.

Examples abound of businesses that could refuse to provide a service to

customers based only on the businesses’ objection to some “message”

that, at its core, hinges only on a significance customers belonging to

protected classes give to a particular product that carries no inherent

meaning: A baker could make a red and green cake for a Christmas

party but refuse to make that same cake for a Kwanzaa celebration; a

florist could create celebratory centerpieces for a secular wedding but

not a religious one; or a party planner could set up red, white, and blue

decorations for a Fourth of July event while refusing service to a French

immigrant who wants to celebrate Bastille Day.

Although the First Amendment protects all manner of speech in

the public square, see, e.g., Snyder v. Phelps, 562 U.S. 443 (2011), it

does not require insulating from liability businesses that violate

nondiscrimination laws by turning away customers simply because of

25
their race, religion, sex, sexual orientation, or other protected trait, as

long as doing so does not involve inherently expressive conduct. This

Court should adhere to the Supreme Court’s longstanding recognition,

founded in centuries of legal tradition, that people should not be

subjected “to indignities when they seek goods and services in an open

market.” Masterpiece, 138 S. Ct. at 1732. The States must be

permitted to preserve our residents’ social and economic well-being and

protect all within our borders from the manifest harms of

discrimination in public accommodations.

CONCLUSION

This Court should affirm the judgment below.

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Date: February 27, 2024 Respectfully submitted,

/s/ Eric Olson

Eric Olson, Atty. Reg. # 36414

Olson Grimsley Kawanabe Hinchcliff &
Murray LLC
700 17th Street, Suite 1600
Denver, CO 80202
Phone: 303-535-9155
Email: [email protected]

ANDREA JOY CAMPBELL

MASSACHUSETTS ATTORNEY GENERAL
Adam M. Cambier, 24PHV7764
Assistant Attorney General
Office of the Massachusetts Attorney
General
One Ashburton Place
Boston, MA 02108
Phone: 617-963-2278
Email: [email protected]
Admitted pro hac vice

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WILLIAM TONG DANA NESSEL
Attorney General of Connecticut Attorney General of Michigan
165 Capitol Ave. P.O. Box 30212
Hartford, CT 06106 Lansing, MI 48909

KATHLEEN JENNINGS KEITH ELLISON

Attorney General of Delaware Attorney General of Minnesota
820 North French St. 102 State Capitol
Wilmington, DE 19801 75 Rev. Dr. Martin
Luther King Jr. Blvd.
BRIAN L. SCHWALB St. Paul, MN 55155
Attorney General for the District
of Columbia AARON D. FORD
400 6th St. NW, Ste. 1800 Attorney General of Nevada
Washington, D.C. 20001 100 North Carson St.
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ANNE E. LOPEZ
Attorney General of Hawai‘i MATTHEW J. PLATKIN
425 Queen St. Attorney General of New Jersey
Honolulu, HI 96813 Richard J. Hughes Justice
Complex
KWAME RAOUL 25 Market St.
Attorney General of Illinois Trenton, NJ 08625
100 West Randolph St.
Chicago, IL 60601 LETITIA JAMES
Attorney General of New York
AARON M. FREY 28 Liberty St.
Attorney General of Maine New York, NY 10005
6 State House Station
Augusta, ME 04333 ELLEN F. ROSENBLUM
Attorney General of Oregon
ANTHONY G. BROWN 1162 Court St. NE
Attorney General of Maryland Salem, OR 97301
200 Saint Paul Pl.
Baltimore, MD 21202

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PETER F. NERONHA
Attorney General of Rhode Island
150 S. Main St.
Providence, RI 02903

MICHELLE A. HENRY
Attorney General of
Pennsylvania
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Harrisburg, PA 17120

CHARITY R. CLARK
Attorney General of Vermont
109 State Street
Montpelier, VT 05609

ROBERT W. FERGUSON
Attorney General of Washington
P.O. Box 40100
Olympia, WA 98504

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CERTIFICATE OF SERVICE

I certify that on this 27th day of February 2024, a copy of this brief was
electronically served via e-filing on all counsel and parties of record.

/s/ Katherine Wright

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