Amicus Curiae Brief — 303 Creative LLC, et al., Petitioners v. Aubrey Elenis, et al.

No. 21-476

In the

Supreme Court of the United States

__________________________________________

303 CREATIVE LLC, et al.,

Petitioners,

v.

AUBREY ELENIS, et al.,

Respondents.

__________________________________________

On Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

__________________________________________

BRIEF OF AMICUS CURIAE YOUNG

AMERICA’S FOUNDATION IN SUPPORT

OF PETITIONERS AND REVERSAL

__________________________________________

DAVID H. THOMPSON

Counsel of Record

JOHN D. OHLENDORF

COOPER & KIRK, PLLC

1523 New Hampshire

Avenue, N.W.

Washington, D.C. 20036

(202) 220-9600

dthompson@cooperkirk.com

Counsel for Amicus Curiae

June 2, 2022

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICUS ............................................ 1

INTRODUCTION ........................................................ 1

SUMMARY OF THE ARGUMENT ............................ 4

ARGUMENT ............................................................... 6

I.

II.

Petitioners have standing to challenge both

of CADA’s clauses directly. ................................ 6

A.

Petitioners’ proposed speech is protected by the First Amendment. ................ 7

B.

Petitioners’ proposed speech at least

arguably would violate CADA. .................. 8

C.

Petitioners face a credible risk of prosecution. ..................................................... 10

Petitioners independently have standing to

challenge the Accommodation Clause because their injury is fairly traceable to that

prevision. .......................................................... 16

A.

A plaintiff injured by one provision that

merely implements another has standing to challenge both provisions. ............. 17

B.

Because the Publications Clause

merely implements the Accommodation Clause, Petitioners’ injury is fairly

traceable to both provisions. .................... 21

CONCLUSION ......................................................... 26

ii

TABLE OF AUTHORITIES

Page

CASES

Babbitt v. United Farm Workers National Union,

442 U.S. 289 (1979) ........................................ 11, 15

Bantam Books, Inc. v. Sullivan,

372 U.S. 58 (1963) .................................................. 7

Bowsher v. Synar,

478 U.S. 714 (1986) .............................................. 20

Buckley v. Valeo,

424 U.S. 1 (1976) .................................................. 20

California v. Texas,

593 U.S. ---, 141 S. Ct. 2104 (2021) ............... 24, 25

Clinton v. City of New York,

524 U.S. 417 (1998) .............................................. 19

Collins v. Yellen,

594 U.S. ---, 141 S. Ct. 1761 (2021) ............... 18, 19

Colorado River Water Conservation Dist. v.

United States,

424 U.S. 800 (1976) ................................................ 6

Davis v. Federal Election Commission,

554 U.S. 724 (2008) .................................. 13, 14, 15

DOT v. Association of Am. R.R.s,

575 U.S. 43 (2015) ................................................ 20

Ex Parte Young,

209 U.S. 123 (1908) ............................................ 6, 7

Federal Election Commission v. Ted Cruz for Senate,

596 U.S. ---, 142 S. Ct. 1638 (2022) ........... 8, 17, 18

iii

Financial Oversight & Mgmt. Bd. for P.R. v.

Aurelius Inv., LLC,

590 U.S. ---, 140 S. Ct. 1649 (2020) ..................... 20

Free Enter. Fund v. PCAOB,

561 U.S. 477 (2010) .............................................. 20

Gratz v. Bollinger,

539 U.S. 244 (2003) ........................................ 19, 20

Gundy v. United States,

588 U.S. ---, 139 S. Ct. 2116 (2019) ..................... 20

INS v. Chadha,

462 U.S. 919 (1983) .............................................. 20

Lexmark Int’l, Inc. v. Static Control Components,

Inc., 572 U.S. 118 (2014) ...................................... 23

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) .......................................... 6, 17

Masterpiece Cakeshop Inc. v. Elenis,

445 F. Supp. 3d 1226 (D. Colo. 2019) ........ 9, 10, 12

McIntyre v. Ohio Elections Comm’n,

514 U.S. 334 (1995) ................................................ 1

MWAA v. Citizens for Abatement of Aircraft

Noise, Inc., 501 U.S. 252 (1991) ........................... 19

NLRB v. Noel Canning,

573 U.S. 513 (2014) .............................................. 20

Obergefell v. Hodges,

576 U.S. 644 (2015) ............................................ 3, 8

Secretary of State of Md. v. Joseph H. Munson Co.,

Inc., 467 U.S. 947 (1984) ........................................ 7

Seila Law LLC v. CFPB,

591 U.S. ---, 140 S. Ct. 2183 (2020) ..................... 20

iv

Steffel v. Thompson,

415 U.S. 452 (1974) ................................................ 6

Susan B. Anthony List v. Driehaus,

573 U.S. 149 (2014) ................................. 7, 8, 9, 10,

11, 12, 15,

16

Updegrove v. Herring,

2021 WL 1206805 (E.D. Va. Mar. 30, 2021) ....... 13

Whole Woman’s Health v. Jackson,

595 U.S. ---, 142 S. Ct. 522 (2021) ....................... 19

Wooley v. Maynard,

430 U.S. 705 (1977) .............................................. 12

CONSTITUTIONAL AND STATUTORY PROVISIONS

U.S. CONST. art. III ..................................................... 6

COLO. REV. STAT. § 24-34-601(2)(a) .................. 2, 9, 16,

21, 22

COLO. REV. STAT. § 24-34-602(1)(a) ..................... 10, 12

1

INTEREST OF AMICUS1

Young America’s Foundation (“YAF”) is a

501(c)(3) nonprofit educational organization whose

mission is to educate and inspire increasing numbers

of young Americans concerning the ideas of individual

freedom, a strong national defense, free speech, free

enterprise, and traditional values. YAF engages with

students, parents, and teachers on campuses across

the country and is a robust advocate for protecting

First Amendment freedoms, giving it a strong interest

in ensuring that citizens retain the ability to effectively vindicate those freedoms in court. YAF stands

resolute as a strictly non-partisan organization dedicated to the ideas and principles of the American

founding, providing an abiding, faithful guide for

young Americans here in the 21st century and beyond.

INTRODUCTION

The fundamental right to engage in “advocacy of

a politically controversial viewpoint . . . is the essence

of First Amendment expression. . . . No form of speech

is entitled to greater constitutional protection.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347

(1995). Yet Colorado law prevents Petitioners—Lorie

Smith and her small website design business—from

voicing their most deeply held religious and philosophical views. Ms. Smith wishes to expand her

1 Pursuant to SUP. CT. R. 37.3(a), amicus certifies that all

parties have provided blanket consent to the filing of amicus

briefs. Pursuant to SUP. CT. R. 37.6, amicus certifies that no

counsel for any party authored this brief in whole or in part, no

party or party’s counsel made a monetary contribution to fund

its preparation or submission, and no person other than amicus

or its counsel made such a monetary contribution.

2

business into the design and creation of custom wedding websites—a form of artistic expression that the

court below correctly held to be “pure speech,”

Pet.App.20a—but her religious beliefs will not allow

her to design websites for same-sex weddings. Because Respondents interpret that position as providing a public accommodation that discriminates on the

bases of sexual orientation, they will not let her engage in that “pure speech”—unless she is also willing

to craft websites speaking a message with which she

profoundly disagrees. That restriction on speech violates our Nation’s deepest constitutional commitments—and Respondent’s contention that Ms. Smith

does not even have standing to challenge it is clearly

contrary to this Court’s precedent.

Colorado’s Anti-Discrimination Act (“CADA”)

contains two clauses that are relevant in this case.

First, the “Accommodation Clause” makes it unlawful

for any person to withhold the “services” of “a place of

public accommodation” on the basis of “sexual orientation.” COLO. REV. STAT. § 24-34-601(2)(a). Because

Respondents interpret that language as forbidding

creative professionals from declining to provide wedding-related services promoting same-sex weddings,

Ms. Smith has refrained from entering the weddingwebsite design field out of fear of the following headsI-win, tails-you-lose choice: either being forced to create websites expressing a message that she fundamentally disagrees with, or becoming the subject of an

enforcement action by Respondents under the Accommodation Clause.

Second, CADA’s “Publications Clause” bans a

person from even communicating the intent to provide

services in a way that violates the Accommodation

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Clause. Id. Because of this Clause, Ms. Smith has refrained from even announcing her desire to create custom wedding websites—consistent with her religious

principles—out of fear that her proposed announcement (which is in the record at Pet.App.196a–97a) will

itself trigger an enforcement action under the Publications Clause. Working together, these two provisions of CADA have successfully silenced Ms. Smith,

forcing her to refrain from expressing her deeply held

views on an issue of “open and searching debate.”

Obergefell v. Hodges, 576 U.S. 644, 680 (2015).

Respondents attempt to defend both Clauses on

the merits, but this brief focuses on their threshold argument: the claim that Petitioners lack standing to

challenge them in the first place. The Court of Appeals

rejected that argument, and it was right to do so. Petitioners easily meet the standards this Court has set

out for preenforcement standing as to both the Publications Clause and the Accommodation Clause, since

they face a credible risk of prosecution under each of

them. And even if there were any doubt about Petitioners risk of prosecution under the Accommodation

Clause, their standing to challenge both provisions of

CADA would still be secure. For Petitioners’ standing

to challenge the Publications Clause is beyond reasonable dispute. And since that Clause does nothing more

than provide an enforcement mechanism for the substantive limits of the Accommodation Clause, the imminent injury Petitioners face under the Publications

Clause is also fairly traceable to—and would be redressed by a judgment invalidating—the Accommodation Clause, give them standing to challenge both provisions under this Court’s settled precedent.

4

SUMMARY OF THE ARGUMENT

I. Petitioners have standing to bring a preenforcement challenge to both CADA’s Publications

Clause and Accommodation Clause under this Court’s

precedent. There can be no question that Petitioners’

proposed speech—both the wedding websites Ms.

Smith wishes to create and her proposed announcement expressing her desire to create them—falls

within the First Amendment’s protective ambit.

Nor is there any serious doubt that Petitioners

reasonably fear that this speech would violate CADA:

the proposed wedding websites themselves, by “withhold[ing]” Petitioners’ design services from prospective clients “because of” (as Respondents see it) their

“sexual orientation;” and the announcement, by “publish[ing]” a “communication . . . that indicates” Petitioners’ intent to withhold their services in this manner.

Finally, Petitioners also face a credible risk that

both Clauses would be enforced against them if they

engaged in the speech they wish to express. Respondents do not meaningfully dispute that there is a credible threat that the Publications Clause would be enforced against Petitioners if they published their proposed announcement expanding their business into

the wedding context (and expressing their views of

marriage). And there is also a credible threat of enforcement under the Accommodation Clause: Respondents have repeatedly sued other creative professionals who decline, because of faith, to offer their services to same-sex weddings; they have robustly defended the constitutionality of the Accommodation

Claus’s application to Petitioners throughout this

5

litigation; and they have pointedly refused to disclaim

any intent to enforce the Clause against Petitioners.

II. Even if Petitioners did not have standing to

challenge both the Accommodation and Publications

Clauses directly, their challenge to both Clauses could

still go forward under this Court’s case law. As noted

above, Respondents do not meaningfully dispute Petitioners’ risk of prosecution under—and hence their

standing to bring a preenforcement challenge

against—the Publications Clause. And this imminent

injury inflicted upon Petitioners by the Publications

Clause is also fairly traceable to the Accommodation

Clause. For the Publications Clause is nothing more

than an implementing provision that provides an additional enforcement mechanism for the Accommodation Clause—barring a person from communicating

the intent to engage in conduct that the substantive

provisions of the Accommodation Clause make unlawful.

Petitioners risk of prosecution under the Publications Clause is also redressable by a judgment invalidating the Accommodation Clause. Respondents’ only

defense of the Publications Clause’s constitutionality

is that it bars speech incident to conduct made illegal

by the Accommodation Clause. So if the Accommodation Clause itself cannot constitutionally make the

withholding of services promoting same-sex weddings

illegal, then the Publications Clause’s bar on communicating the intent to withhold those services has

no purpose and is itself obviously unconstitutional

and invalid. The Publications Clause cannot constitutionally bar Petitioners from saying that they are going to engage in conduct that the Accommodation

Clause cannot constitutionally bar them from doing.

6

CADA’s two Clauses are thus inextricably intertwined, and Petitioners’ standing to challenge one

necessarily gives them standing to challenge both.

ARGUMENT

Article III vests the federal courts with authority

to decide all “cases” and “controversies” within their

jurisdiction, U.S. CONST. art. III—a power that, this

court has held, extends to those disputes where the

plaintiff can (1) identify an “injury-in-fact”; (2) trace a

“causal connection between the injury and the conduct

complained of”; and (3) show that it is “likely, as opposed to merely speculative, that injury will be redressed by a favorable decision.” Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560 (1992) (quotation marks

omitted). So long as this “irreducible constitutional

minimum of standing” is satisfied, id., the federal

courts labor under “the virtually unflagging obligation

. . . to exercise the jurisdiction given them,” Colorado

River Water Conservation Dist. v. United States, 424

U.S. 800, 817 (1976). Whatever the validity of its decision on the merits, the Tenth Circuit correctly held

below that Petitioners have standing and that this

“virtually unflagging obligation” thus requires the exercise of jurisdiction in this case.

I.

Petitioners have standing to challenge both

of CADA’s Clauses directly.

It has long been settled that Article III does not

require a plaintiff to “first expose himself to actual arrest or prosecution to be entitled to challenge a statute

that he claims deters the exercise of his constitutional

rights.” Steffel v. Thompson, 415 U.S. 452, 459 (1974).

For if an individual or company could only “test the

validity” of a law by violating it first—and thereby

7

risking “enormous penalties” if “the court should decide that the law was valid”—the necessary result

would “be to preclude a resort to the courts (either

state or Federal) for the purpose of testing its validity.” Ex Parte Young, 209 U.S. 123, 145–46 (1908).

And such a “denial of any hearing” on the constitutionality of a law would be especially intolerable

where First Amendment rights are at stake. For “[i]t

is characteristic of the freedoms of expression in general that they are vulnerable to gravely damaging yet

barely visible encroachments.” Bantam Books, Inc. v.

Sullivan, 372 U.S. 58, 66 (1963). A law that forces a

speaker who wishes to voice disfavored thoughts to do

so only under the pall cast by the threat of prosecution

would thus choke off speech nearly as effectively as

prosecution itself—and “[s]ociety as a whole then

would be the loser.” Secretary of State of Md. v. Joseph

H. Munson Co., Inc., 467 U.S. 947, 956 (1984).

Accordingly, where First Amendment rights are

at stake, this Court has found injury-in-fact so long as

the plaintiff “alleges an intention to engage in a course

of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a

credible threat of prosecution thereunder.” Susan B.

Anthony List v. Driehaus, 573 U.S. 149, 159 (2014)

(quotation marks omitted). Petitioners’ First Amendment challenge to both CADA’s Publications Clause

and Accommodation Clause easily clear all three of

these hurdles.

A.

Petitioners’ proposed speech is protected by the First Amendment.

Petitioners’ proposed conduct is plainly “affected

with a constitutional interest.” Id. Given that a court

8

determining standing generally must “accept as valid

the merits of [a party’s] legal claims,” Federal Election

Commission v. Ted Cruz for Senate, 596 U.S. ---, 142

S. Ct. 1638, 1647 (2022), the burden here is not high,

and Petitioners easily clear it. The announcement Ms.

Smith seeks to post expanding her business into the

creation of wedding websites—but indicating her intent not to design websites for same-sex couples—is

pure speech, giving voice to her religious faith and her

religious and philosophical commitments on an issue

of “open and searching debate.” Obergefell, 576 U.S. at

680. And the wedding website design services she

seeks to provide are likewise protected by the First

Amendment. Indeed, Respondents have expressly

stipulated that all of Petitioners’ “website designs are

expressive in nature,” that they use “words, symbols,

and other modes of expression . . . to communicate a

particular message,” and that “[e]very aspect of the

websites . . . contributes to the overall messages that

[Petitioners]

convey

through

the

websites.”

Pet.App.181a–82a.

B.

Petitioners’ proposed speech at least

arguably would violate CADA.

Petitioners’ proposed announcement, and substantive design services, are also at least “arguably

proscribed” by CADA’s Publications and Accommodation Clauses. Susan B. Anthony List, 573 U.S. at 162.

Begin with the Publications Clause. There is no

guesswork about whether Petitioners wish to speak or

what they want to say: Ms. Smith’s proposed announcement expanding her business to include the design and creation of wedding websites has already

been written and is in the record; and Respondents

9

admit that she wishes to publish it and that it will declare her policy of not “create[ing] websites for samesex marriages or any other marriage that is not between one man and one woman,” based on her “religious convictions” and belief that such websites would

“contradict[ ] God’s true story of marriage—the very

story He is calling me to promote.” Pet.App.187a–89a.

While a plaintiff need not “confess that he will in

fact violate [the challenged] law” to have standing, Susan B. Anthony List, 573 U.S. at 163, Petitioners can

hardly be faulted for concluding that the proposed announcement is at least “arguably proscribed” by the

Publications Clause, id. at 162. After all, (1) that provision bars “any . . . communication … that indicates”

that the party intends to violate the Accommodation

Clause by “refus[ing] [services] . . . because of . . . sexual orientation,” COLO. REV. STAT. § 24-34-601(2)(a);

(2) declining to provide wedding services “for same-sex

marriages,” Pet.App.189a, would appear to violate

this proscription (and Respondents have so interpreted it, see Masterpiece Cakeshop Inc. v. Elenis, 445

F. Supp. 3d 1226, 1233–37 (D. Colo. 2019)); and (3)

Respondents have taken the position in this litigation

that they believe the proposed announcement would

violate the Publications Clause, see Appellees’ Br. 56–

57 (10th Cir. April 23, 2020).

The website design services Petitioners seek to

provide would likewise violate the Accommodation

Clause, and for the same reasons. Indeed, as discussed below, the two Clauses are inextricably linked:

the announcement of an intent to engage in a certain

course of action violates the Publications Clause only

if the course of action itself violates the Accommodation Clause. Based on the face of the law, Colorado’s

10

previous enforcement efforts, the widespread interpretation of laws like these as proscribing Petitioners’

proposed conduct,2 and Respondents position in this

case, Petitioners have “every reason to think” that Respondents would believe them to be in violation of

CADA if they went forward with their plans to expand

into the wedding website business. Susan B. Anthony

List, 573 U.S. at 163.

C.

Petitioners face a credible risk of prosecution.

Finally, Petitioners’ fears that the speech they

wish to engage in would place them in the crosshairs

of an enforcement action are plainly credible. Once

again, that is true under both the Publications and the

Accommodation Clauses.

1. The risk of prosecution under the Publications

Clause is obviously credible, and Respondents do not

seriously contend otherwise. Colorado has actively enforced CADA against other religious business owners

who decline to provide wedding services for same-sex

weddings. See Masterpiece Cakeshop, 445 F. Supp. 3d

at 1233–37. Even if it did not, Petitioners would still

need to fear civil prosecution by private citizens. See

COLO. REV. STAT. § 24-34-602(1)(a). Moreover, Respondents have robustly defended the constitutionality of both Clauses in this litigation and have pointedly declined to bolster their standing argument by

disclaiming any intent to prosecute Petitioners if they

2 See Brief of Amici Curiae Massachusetts, et al. at 10–11,

Carpenter v. James, No. 22-75 (2d Cir. May 16, 2022) (amicus

brief of 19 States arguing that anti-discrimination laws like Colorado’s bar creative wedding professionals from declining to promote same-sex weddings).

11

publish the announcement. This is not a case challenging some moth-eaten statute that has gone into

desuetude.

These circumstances plainly establish pre-enforcement standing under this Court’s precedent. In

Babbitt v. United Farm Workers National Union, for

instance, the Court upheld the standing of Arizona

farmworkers who had previously engaged in consumer publicity campaigns and expressed an intent to

“continue to engage in [similar] activities in that

State.” 442 U.S. 289, 301 (1979). A state statute imposed penalties for “encourag[ing] the ultimate consumer of any agricultural product to refrain from purchasing [the product] . . . by the use of dishonest, untruthful and deceptive publicity.” Id. (quoting ARIZ.

REV. STAT. ANN. §§ 23-1385(B)(8), 23-1392). There was

no specific threat of enforcement against the plaintiffs; moreover, the challenged statute “ha[d] not yet

been applied and may never be applied to . . . consumer publicity” speech of the kind they wished to engage in. Id. at 302. Nonetheless, because the statute’s

language plausibly applied to the plaintiffs’ intended

campaigns and “the State has not disavowed any intention” of enforcing it against them, the Court found

that the statute created a “realistic danger of sustaining a direct injury” and accordingly presented “a case

or controversy.” Id. at 298, 302.

Susan B. Anthony List is to the same effect. The

plaintiffs there were advocacy organizations that had

previously been charged with making false statements in contravention of an Ohio statute. When the

initial charges were withdrawn, plaintiffs brought

both facial and as applied challenges to the statute,

noting that they intended to engage in activities that

12

were “substantially similar” to their previous conduct.

573 U.S. at 161. Based on the government’s “history

of past enforcement,” the fact that “any person” could

enforce the statute through a private action, which

alone imposed significant “burdens . . . on electoral

speech,” and the government’s refusal to “disavow[ ]

enforcement if petitioners make similar statements in

the future,” the Court found a credible risk of prosecution and, hence, standing. Id. at 164–65.

Petitioners have standing to challenge the Publications Clause under the very same reasoning.

2. Petitioners also face a clear and credible risk

of prosecution under the Accommodation Clause, for

much the same reasons. Again, the website design services Petitioners wish to offer appear to fall within the

Accommodation Clause’s scope on the face of that provision, and Respondents have prosecuted other creative professionals for engaging in quite similar conduct in the past. Masterpiece Cakeshop, 445 F. Supp.

3d at 1233–37; cf. Wooley v. Maynard, 430 U.S. 705,

712 n.9 (1977) (Plaintiff could seek injunctive relief

against threatened prosecution based on past prosecutions of her “similarly situated” spouse). Like the

Publications Clause, the Accommodation Clause is

also enforceable through private citizen suits. COLO.

REV. STAT. § 24-34-602(1)(a). And also like the Publications Clause, Respondents in this litigation have robustly defended the Accommodation Clause’s constitutionality and have pointedly declined to foreswear

enforcing it against Petitioners should they expand

into the wedding website business as they wish. “On

these facts, the prospect of future enforcement is far

from imaginary or speculative.” Susan B. Anthony

List, 573 U.S. at 165 (quotation marks omitted).

13

Respondents attempt to resist this conclusion,

but none of their arguments are persuasive. Their

principal contention is that even if an enforcement action would certainly ensue once Petitioners decline to

design a website for a same-sex wedding and the couple files a complaint, enforcement is nonetheless too

speculative because “Colorado responds only to complaints brought to the Division’s attention,” and Petitioners have not yet “been asked to design a custom

website for a same-sex wedding.” BIO at 10, 13. The

district court rejected Petitioners’ standing to challenge the Accommodation Clause on similar grounds,

reasoning that too many “conditions precedent” would

need to be satisfied before enforcement could occur:

“The [Petitioners] must offer to build wedding websites, a same-sex couple must request [Petitioners’]

services, the [Petitioners] must decline, and then a

complaint must be filed.” Pet.App.165a; see also Updegrove v. Herring, 2021 WL 1206805, at *3 (E.D. Va.

Mar. 30, 2021) (Cited in BIO at 9) (finding no standing

because “Plaintiff has ‘no reason to suspect that Defendant might attempt to penalize him using a statute

he has never violated.’ ”).

This line of argument is flatly contrary to this

Court’s precedent. The chain of “conditions precedent”

to prosecution was equally, if not more, “attenuated,”

Pet.App.165a, in Davis v. Federal Election Commission, for example, yet this Court easily found pre-enforcement standing. 554 U.S. 724, 734 (2008). In Davis, a self-funding candidate challenged a provision in

the Bipartisan Campaign Reform Act (“BCRA”) that

asymmetrically raised the contribution limits for the

supporters of the plaintiff’s opponent when the plaintiff spent more than a certain amount of his personal

14

funds. When Davis filed suit, the application of this

provision against him still depended on multiple “conditions precedent”: “his opponent had not yet qualified

for the asymmetrical limits,” and even if he did, there

was no guarantee that third-party donors would make

contributions in the asymmetrically heightened

amounts or that his opponent would accept them. Id.

at 734. Indeed, in the event, “when his opponent did

qualify to take advantage of [the asymmetrical] limits,

he chose not to do so.” Id.

This Court found standing nonetheless. Because

Davis, at the point in time when he filed suit, “had

declared his candidacy and his intent to spend more

than $350,000 of personal funds” and “there was no

indication that his opponent would forgo th[e] opportunity” to “receive contributions on more favorable

terms,” the Court concluded that Davis faced a threat

of injury that was “real, immediate, and direct.” Id. As

in Davis, so too here. Petitioners have “declared . . .

[their] intent” to offer wedding website design services, but for the challenged law, and to do so on a basis that would respectfully decline to offer those services to same-sex weddings. And like in Davis, “there

[i]s no indication” that this course of action would not

prompt a request by a same-sex couple and an ensuing

complaint to Respondents. To the contrary, Petitioners have already received a request for a same-sex

wedding website, Pet. at 5, and there is a clear history

in Colorado of private complaints over alleged violations of CADA by creative professions who decline to

provide wedding services to same-sex couples, Pet. at

6–7; cf. Davis, 554 U.S. at 735 (“[T]he record at summary judgment indicated that most candidates who

15

had the opportunity to receive expanded contributions

had done so.”).

Nor is it of any moment that the “sample website”

in the record purportedly does not show “how the

Company would facilitate a specific future client’s

website[,] what messages the website might contain[,]

and to whom those messages might be attributed.”

BIO at 13. To the extend these things have any relevance at all, Respondent has already stipulated to

them. It expressly stipulated that “[a]ll of [Petitioners’] website designs are expressive in nature,” that

“Ms. Smith’s creative skills transform her clients’ nascent ideas into pleasing, compelling, marketable

graphics or websites conveying a message,” and that

viewers of each website “will know that the websites

are [Petitioners’] original artwork.” Pet.App.181a,

182a, 187a. The Court did not require the plaintiffs in

Babbitt to come forward with the specific content of

the “consumer publicity campaigns” they would have

undertaken but for the challenged law, 442 U.S. at

301, and Article III does not require more here.

Respondents’ remaining arguments are insubstantial. They make much of CADA’s lack of “criminal

penalties,” BIO at 10, but “administrative action, like

arrest or prosecution, may give rise to harm sufficient

to justify pre-enforcement review.” Susan B. Anthony

List, 573 U.S. at 165; see also Davis, 554 U.S. at 734

(no risk of criminal penalties). And even on Respondents’ telling, a plaintiff can bring a pre-enforcement

challenge to a statute lacking criminal penalties if he

“show[s] a credible threat of enforcement,” BIO at 8—

which Petitioners have.

16

Finally, Respondents argue that the availability

of private enforcement suits under CADA does not

support standing because Colorado does not “incentivize” such suits through the “award of attorney fees.”

BIO at 11. There is nothing to this. The “incentive” for

private citizens—apart from any ideological motivation—is that they receive the statutory fine if they prevail. COLO. REV. STAT. § 24-34-601(2)(a). This Court

did not bother to discuss whether Ohio’s private-enforcement scheme in Susan B. Anthony List provided

for attorneys’ fees before concluding that the existence

of private suits “bolstered” the “credibility of th[e]

threat” of enforcement, 573 U.S. at 164, and this case

should be no different.

Accordingly, the Tenth Circuit was clearly correct to conclude that Petitioners have “a credible fear

that Colorado will enforce CADA against them.”

Pet.App.17a.

II.

Petitioners independently have standing to

challenge the Accommodation Clause because their injury is fairly traceable to that

provision.

Even if Petitioners were not directly injured by

both the Publications and Accommodation Clauses

(and they are), they would still have standing to challenge both provisions under settled legal principles.

For the imminent injury inflicted upon Petitioners by

the Publications Clause is clear and undisputed, and

that injury is fairly traceable to the Accommodation

Clause and would be redressed by a judgment invalidating it.

17

A.

A plaintiff injured by one provision

that merely implements another has

standing to challenge both provisions.

As noted above, a plaintiff has standing if he satisfies three elements: (1) an “injury in fact” that is either “actual or imminent,” that (2) is “fairly traceable

to the challenged action of the defendant,” and that (3)

would “likely . . . be redressed by a favorable decision.”

Lujan, 504 U.S. at 560–61 (cleaned up). In the simplest pre-enforcement challenge, of course, all three

elements are satisfied based on the same statutory

provision: the credible threat that the provision will

be enforced against the plaintiff constitutes an imminent injury in fact, the injury is directly traceable to

that provision, and a judgment invalidating that provision would eliminate the threat of enforcement and

thereby redress the injury. The law has long recognized, however, that not all legal challenges are that

simple, and that in some cases multiple legal provisions may work together to cause a plaintiff’s injury,

sometimes in complex ways.

This Court’s decision in Federal Election Commission v. Ted Cruz for Senate, 142 S. Ct. 1638, provides the most recent example. In that case, Senator

Ted Cruz challenged a provision of BCRA that capped,

at $250,000, the amount of loans from a candidate to

his own campaign committee that could be repaid by

the committee with funds raised after the election.

This statutory provision was implemented by a regulation promulgated by the FEC, which largely duplicated the statutory restriction but also added a few

additional implementing details, including a rule requiring repayment within 20 days after the election of

any portion of a candidate loan exceeding $250,000.

18

Senator Cruz challenged both the statute and its implementing regulation, but the FEC argued before

this Court that Senator Cruz lacked standing to challenge the provision of BCRA because his injury-in-fact

($10,000 in unpaid candidate loans arising out of the

2018 election) was purportedly caused by the regulatory 20-day rule, not the restrictions in BCRA itself.

This Court rejected that argument and held that

Senator Cruz had standing to challenge BCRA itself,

not just the FEC’s regulation, because his injury was

fairly traceable to the statutory provision the regulation had been promulgated to implement. “The present inability of the Committee to repay and Cruz to

recover the final $10,000 Cruz loaned his campaign,”

the Court explained “is . . . traceable to the operation

of [BCRA] itself,” “even if [the injury was] brought

about by the agency’s threatened enforcement of its

regulation.” Id. at 1649. After all, “[a]n agency’s regulation cannot operate independently of the statute

that authorized it”— such that “if [BCRA’s statutory

limit] is invalid and unenforceable . . . the agency’s 20day rule is as well.” Id. (cleaned up). The $10,000 injury suffered by Senator Cruz was thus traceable to

both the statutory and regulatory limits, and he had

standing to challenge both the “implementing regulation” and “the statutory provision that, through the

agency’s regulation, is being enforced.” Id. at 1650.

Many other cases reflect this principle that a

plaintiff has standing to challenge not just the regulation or agency action that immediately caused their

injury but the statutory provision that the agency action implements. In Collins v. Yellen, for example, the

Court held that shareholders injured by agency action

taken by the Federal Housing Finance Agency had

19

standing to challenge the constitutionality of the

agency’s structure, expressly concluding that “the

traceability requirement is satisfied” even though “the

shareholder’s concrete injury flows directly from [the

agency action]” rather than “the [statutory] removal

restriction.” 594 U.S. ---, 141 S. Ct. 1761, 1779 (2021).

Similarly, the Court found standing in Clinton v.

City of New York to challenge the Line Item Veto Act

even though the plaintiffs were immediately injured

by the President’s cancellation of certain tax benefits

to which they were otherwise entitled, not the Act’s

general provision authorizing that cancellation, explaining that “traceability” was “easily satisfied” since

their “injury is traceable to the President’s cancellation of [the benefits].” 524 U.S. 417, 433 n.22 (1998).

And in MWAA v. Citizens for Abatement of Aircraft

Noise, Inc., the Court allowed homeowners near

Washington National Airport who alleged injury from

the risk of “increased noise, pollution, and danger of

accidents” posed by the “increased air traffic” that

would result from a master plan imposed by the Metropolitan Washington Airports Authority (“MWAA”)

to challenge the constitutionality of the MWAA’s composition, specifically rejecting the argument that the

plaintiffs’ “injuries are caused by factors independent

of” the alleged constitutional violation. 501 U.S. 252,

264–65 (1991); accord Whole Woman’s Health v. Jackson, 595 U.S. ---, 142 S. Ct. 522, 535–37 (2021) (finding

standing to challenge limits on abortions based on the

threat that “licensing official[s]” could “bring disciplinary actions” under “other laws that regulate abortion” (ellipses omitted)); Gratz v. Bollinger, 539 U.S.

244, 267 (2003) (transfer student could challenge both

the transfer admission policy and the freshman

20

admission policy because both policies implicated “the

same set of concerns”); see also Seila Law LLC v.

CFPB, 591 U.S. ---, 140 S. Ct. 2183, 2195-96 (2020);

Bowsher v. Synar, 478 U.S. 714, 721 (1986); INS v.

Chadha, 462 U.S. 919, 936 (1983); Buckley v. Valeo,

424 U.S. 1, 12, 118 (1976).

Separation-of-powers challenges to the constitutionality of agency actions provide yet another instance where a plaintiff’s injury is traceable to at least

two separate provisions that are intertwined with one

another. In the typical case, for example, where a

party injured by agency action challenges the appointment or removal process of the official who promulgated it, it is the general statutory provision governing the official’s appointment or removal, rather than

the specific statutory provision being implemented,

that is alleged to be invalid. Yet in these types of cases

the Court has routinely proceeded directly to the merits of the constitutional challenge, because no one even

considered arguing that the plaintiff’s injury was not

fairly traceable to the alleged constitutional violation.

See, e.g., Financial Oversight & Mgmt. Bd. for P.R. v.

Aurelius Inv., LLC, 590 U.S. ---, 140 S. Ct. 1649

(2020); Gundy v. United States, 588 U.S. ---, 139 S. Ct.

2116 (2019); DOT v. Association of Am. R.R.s, 575 U.S.

43 (2015); NLRB v. Noel Canning, 573 U.S. 513

(2014); Free Enter. Fund v. PCAOB, 561 U.S. 477

(2010).

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B.

Because the Publications Clause

merely implements the Accommodation Clause, Petitioners’ injury is fairly

traceable to both provisions.

Under these principles, Petitioners’ standing to

challenge both the Publications Clause and the Accommodation Clause is clear—even if they faced no

credible risk of prosecution under the latter. For the

clear and undisputed threat that the Publications

Clause would be enforced against them, if they expressed their prohibited views, is fairly traceable to,

and would be redressed by a judgment invalidating,

the Accommodation Clause.

1. Begin with traceability. The relevant subsection of CADA reads, in full, as follows:

It is a discriminatory practice and unlawful

for a person, directly or indirectly, to refuse,

withhold from, or deny to an individual or a

group, because of disability, race, creed,

color, sex, sexual orientation, gender identity, gender expression, marital status, national origin, or ancestry, the full and equal

enjoyment of the goods, services, facilities,

privileges, advantages, or accommodations

of a place of public accommodation or, directly or indirectly, to publish, circulate, issue, display, post, or mail any written, electronic, or printed communication, notice, or

advertisement that indicates that the full

and equal enjoyment of the goods, services,

facilities, privileges, advantages, or accommodations of a place of public accommodation will be refused, withheld from, or

22

denied an individual or that an individual's

patronage or presence at a place of public accommodation is unwelcome, objectionable,

unacceptable, or undesirable because of disability, race, creed, color, sex, sexual orientation, gender identity, gender expression,

marital status, national origin, or ancestry.

COLO. REV. STAT. § 24-34-601(2)(a).

As in Cruz and the other cases discussed above,

the imminent injury Petitioners have suffered under

the Publications Clause is fairly traceable to the Accommodation Clause because the former is nothing

more than an enforcement mechanism implementing

the substantive limitations of the latter. The substantive conduct that, under the Publications Clause, a

person cannot say they will do—deny “the full and

equal enjoyment” of goods or services “of a place of

public accommodation” because of race, sexual orientation, or one of the other prohibited bases—is the

very conduct that the Accommodation Clause forbids

them to do. And the sole purpose of preventing a person from publishing their intent to discriminate in one

of the forbidden ways is to stop the act of discrimination itself. Indeed, prohibiting the communication of

the intent to engage in such practices would be utterly

pointless if the practices themselves were not prohibited by the Accommodation Clause. The substantive

prohibition of the Accommodation Clause is thus the

but-for cause of Petitioners’ injury under the Publications Clause: if the former did not prohibit them from

restricting their business to opposite-sex weddings,

they plainly could not be sued under the latter for publishing their intent to do so.

23

Further, while “[p]roximate causation is not a requirement of Article III standing, which requires only

that the plaintiff’s injury be fairly traceable to the defendant’s conduct,” Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 134 n.6 (2014),

The Accommodation Clause is the proximate cause of

Petitioners’ injury. The whole reason the Publications

Clause bars Petitioners from saying that they would

decline to create websites for same-sex weddings is

that the Accommodation Clause bars them from declining to create such websites in the first place. Thus,

the only intermediate link in the chain of causation

between Petitioners’ injury and the Accommodation

Clause is a provision that does no more than provide

an additional mechanism for enforcing the Accommodation Clause’s substantive restrictions. See id. at 133

(a single “intervening step … is not fatal to the showing of proximate causation”).

2. Much the same reasoning shows that Petitioners’ injury would also be redressable by a judgment

invalidating the Accommodation Clause. For if the Accommodation Clause’s substantive prohibition could

not be enforced against Petitioners and used to bar

them from declining to create websites for same sex

weddings, then the Publications Clause plainly could

not be enforced against their communication of the intent to run their business in accordance with their religious faith in this way.

That is evident from Respondents’ defense of the

Publications Clause. The beginning and end of their

justification for the Publications Clause’s ban on Petitioners’ proposed announcement is that the clause

“regulates speech that is unprotected because it is incidental to conduct made illegal by the anti-

24

discrimination provision,” i.e., the Accommodation

Clause. Appellees’ Br. at 51 (10th Cir. April 23, 2020);

accord BIO at 31–33. And if the Accommodation

Clause cannot, consistent with the First Amendment,

make Petitioners’ proposed course of conduct “illegal,”

then the only conceivable justification for the Publications Clause’s application in this case falls apart at

the seams. See Pet.App.33a (“[Respondents] appear to

acknowledge that their Accommodation Clause and

Communication Clause challenges go hand in hand,

at least to the extent the merits of those challenges

are ‘intertwined.’ ”). A judgment invalidating the Accommodation Clause’s application to Petitioners substantive conduct would thus perforce render invalid

any application of the Publications Clause to their announcement of that conduct.

3. Because both the causation and redressability

prongs of standing allow Petitioners to challenge both

the Accommodation Clause and Publications Clause—

even if their only risk of prosecution were under the

latter—this case is wholly unlike the Court’s recent

standing decision in California v. Texas, 593 U.S. ---,

141 S. Ct. 2104 (2021).

In California, several States (alongside two individuals) challenged Section 5000A(a) of the Affordable

Care Act—the “minimum essential coverage requirement” (or “individual mandate”)—as unconstitutional. But the alleged injuries that gave rise to their

standing (as relevant here) were inflicted by “other

provisions of the Act, not the minimum essential coverage provision.” 141 S. Ct. at 2108, 2119. And as the

Court repeatedly explained, the statutory provisions

that had injured the State plaintiffs “operate independently of § 5000A(a),” and “[n]othing in the text” of

25

those provisions “suggests that they would not operate without § 5000A(a).” Id. at 2119, 2120 (emphasis

added). Accordingly, “[t]o show that the minimum essential coverage requirement is unconstitutional

would not show that enforcement of any of these other

provisions violates the Constitution,” and the States’

injuries were thus “not fairly traceable to enforcement

of the allegedly unlawful provision of which the plaintiffs complain—§ 5000A(a).” Id. at 2119 (quotation

marks omitted).

Petitioners’ claims in this case are crucially different from the claims in California—and they differ

for precisely the reasons that the Court singled out as

depriving the State plaintiffs of standing in that case.

While California emphasized that the statutory provisions that had injured the State plaintiffs “operate

independently” of the separate provision they challenged as unconstitutional, id. at 2120, here, as discussed above, the Publications Clause cannot operate

at all apart from the Accommodation Clause. The key

problem for the State plaintiffs in California, then,

was that “[t]o show that the minimum essential coverage requirement is unconstitutional would not show

that enforcement of any of these other provisions

[causing the States’ injuries] violates the Constitution.” Id. at 2119. But here, the unconstitutionality of

the Accommodation Clause would nullify the only conceivable justification for applying the Publications

Clause, rendering the latter invalid and unenforceable as well.

California thus has no purchase here. Instead,

the relationship between the two Clauses of CADA at

issue is directly analogous to the provisions in Cruz,

Collins, and the other cases discussed above. Like the

26

regulatory 20-day rule in Cruz, the Publications

Clause merely provides a mechanism to enforce the

substantive prohibitions of the Accommodation

Clause. The Accommodation Clause is thus the butfor and proximate cause of the imminent injury Petitioners face under the Publications clause, and a judgment invalidating the latter would doom the application of the former. Under Article III, that is all Petitioners need to show.

CONCLUSION

For the foregoing reasons, Petitioners have

standing to challenge both CADA’s Accommodation

and Publications Clauses.

June 2, 2022

Respectfully submitted,

DAVID H. THOMPSON

Counsel of Record

JOHN D. OHLENDORF

COOPER & KIRK, PLLC

1523 New Hampshire

Avenue, N.W.

Washington, D.C. 20036

(202) 220-9600

dtompson@cooperkirk.com

Counsel for Amicus Curiae