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

Supreme Court briefAug 19, 2022

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NO. 21-476

In the Supreme Court of the United States

303 CREATIVE LLC, ET AL.,

Petitioners,

AUBREY ELENIS, ET AL.,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF OF PUBLIC ACCOMMODATIONS LAW

SCHOLARS AS AMICI CURIAE IN SUPPORT

OF RESPONDENTS

JOSHUA MATZ

Counsel of Record

RAYMOND P. TOLENTINO

CARMEN IGUINA GONZÁLEZ

Kaplan Hecker & Fink LLP

1050 K Street NW, Suite 1040

Washington, DC 20001

(929) 294-2537

jmatz@kaplanhecker.com

Counsel for Amici Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... iii

INTEREST OF AMICI CURIAE ................................ 1

INTRODUCTION & SUMMARY OF ARGUMENT........................................................................... 1

ARGUMENT ................................................................ 3

THE ACT DOES NOT BURDEN PETITIONERS’ FIRST AMENDMENT RIGHTS ........ 3

A. Public Accommodations Laws Do Not

Generally Burden First Amendment

Rights .............................................................. 3

B. In Rare Cases, Public Accommodations

Laws May Improperly Burden First

Amendment Rights ......................................... 5

1. Interference with a person’s “own message” .......................................................... 5

2. The structure of the objective inquiry ...... 8

C. The Act Does Not Burden Petitioners’

First Amendment Rights on This Sparse

Record............................................................ 12

1. No reasonable observer would see the

Act as interfering with Petitioners’

own message ........................................... 13

2. Generally artistic endeavors are not

wholly exempt from public accommodations laws ............................................ 17

II. THE ACT FURTHERS COMPELLING

INTERESTS IN ASSURING FULL AND

EQUAL ACCESS AND PROTECTING

DIGNITY IN THE MARKET.............................. 20

A. Full and Equal Access to the Market .......... 21

1. This state interest is not achieved by

the provision of partial and unequal

access....................................................... 21

2. There is no basis for limiting this

state interest to businesses with monopoly power ........................................... 23

a. History .............................................. 24

b. Precedent and American Practice .... 28

Practicalities .................................... 29

B. Dignity in the Market ................................... 31

CONCLUSION .......................................................... 33

iii

TABLE OF AUTHORITIES

CASES

Allnutt v. Inglis (1810),

104 Eng. Rep. 206 .................................................. 25

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

Duarte, 481 U.S. 537 (1987) ............................ 21, 23

Bob Jones Univ. v. United States,

461 U.S. 574 (1983) ................................................ 31

Boy Scouts of Am. v. Dale,

530 U.S. 640 (2000) ...................................... 6, 10, 15

Brush & Nib Studio, LC v. City of Phoenix,

247 Ariz. 269 (2019) ............................................... 32

Chevallier v. Straham,

2 Tex. 115 (1847) .................................................... 25

Dallas v. Stanglin,

490 U.S. 19 (1989) .................................................. 19

Dir., Div. on Civil Rights v. Slumber, Inc.,

82 N.J. 412 (1980) .................................................. 22

Donnell v. State,

48 Miss. 661 (1873) ................................................ 27

Dwight v. Brewster,

18 Mass. 50 (1822) ................................................. 25

Elane Photography, LLC v. Willock,

309 P.3d 53 (N.M. 2013) ........................................ 19

Ferguson v. Gies,

82 Mich. 358 (1890) ................................................ 22

Fish v. Chapman & Ross,

2 Ga. 349 (1847) ..................................................... 25

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

379 U.S. 241 (1964) .......................................... 29, 31

Hurley v. Irish-Am. Gay, Lesbian & Bisexual

Grp. of Bos., 515 U.S. 557 (1995) .................. passim

Jencks v. Coleman,

13 F. Cas. 442 (C.C.D.R.I. 1835) ........................... 24

Johnson v. Auburn & Syracuse Elec. R. Co.,

222 N.Y. 443 (1918).......................................... 22, 23

Joseph v. Bidwell,

28 La. Ann. 382 (1876) ........................................... 27

Koire v. Metro Car Wash,

40 Cal. 3d 24 (1985) ............................................... 22

Markham v. Brown,

8 N.H. 523 (1837) ................................................... 24

Masterpiece Cakeshop, Ltd. v. Colorado Civil

Rights Comm’n,

138 S. Ct. 1719 (2018) ........................ 3, 4, 21, 31, 32

Messenger v. State,

41 N.W. 638 (Neb. 1889) ........................................ 27

Munn v. Illinois,

94 U.S. 113 (1876) .................................................. 25

Nebbia v. New York,

291 U.S. 502 (1934) ................................................ 32

New State Ice Co. v. Liebmann,

285 U.S. 262 (1932) .......................................... 26, 27

PruneYard Shopping Ctr. v. Robins,

447 U.S. 74 (1980) .......................................... passim

R.A.V. v. City of St. Paul, Minn.,

505 U.S. 377 (1992) .................................................. 5

Roberts v. Jaycees,

468 U.S. 609 (1984) ........................................ passim

Rumsfeld v. FAIR,

547 U.S. 47 (2006) ................................ 5, 6, 7, 10, 15

Runyon v. McCrary,

427 U.S. 160 (1976) .......................................... 10, 19

Seattle Opera v. NLRB,

292 F.3d 757 (D.C. Cir. 2002) ................................ 19

Spence v. State of Wash.,

418 U.S. 405 (1974) .................................................. 6

State v. Moore,

12 N.H. 42 (1841) ................................................... 25

Telecor Commc’ns, Inc. v. Sw. Bell Tel. Co.,

305 F.3d 1124 (10th Cir. 2002) ........................ 29, 30

Telescope Media Grp. v. Lucero,

936 F.3d 740 (8th Cir. 2019) ............................ 11, 29

Texas v. Johnson,

491 U.S. 397 (1989) ............................................ 6, 10

Turner Broad. Sys., Inc. v. FCC,

512 U.S. 622 (1994) .............................................. 6, 7

Turner Broad. Sys., Inc. v. FCC,

520 U.S. 180 (1997) .................................................. 7

W. Turf Ass’n v. Greenberg,

204 U.S. 359 (1907) ................................................ 27

W. Va. Bd. of Educ. v. Barnette,

319 U. S. 624 (1943) ................................................. 7

Wooley v. Maynard,

430 U. S. 705 (1977) ................................................. 7

OTHER AUTHORITIES

Charles Abrams, “. . . Only the Very Best Christian Clientele,” Commentary, Jan. 1955 ............... 28

Edward A. Adler, Business Jurisprudence, 28

Harv. L. Rev. 135 (1914) ........................................ 26

Atlanta Hotels Drop Color Line, N.Y. Times,

Jan. 12, 1964 .......................................................... 29

John B. Cheadle, Government Control of Business, 20 Colum. L. Rev. 550 (1920)........................ 26

Matthew Hale, An Analysis of the Civil Part of

the Law (6th ed. 1820) ........................................... 25

https://303creative.com/portfolio/dog-breederwebsite/ ................................................................... 14

https://303creative.com/portfolio/fsr/ ........................ 14

https://303creative.com/portfolio/ohio-sportsapparel/................................................................... 14

https://303creative.com/portfolio/slydersbandcom/ ......................................................................... 13

http://morningstarjewelersinc.com/about/ ................ 14

https://web.archive.org/web/20140523175115/htt

p://coloradohousesales.com/about/ ......................... 14

https://web.archive.org/web/20150216132207/htt

p://rpitlerlaw.com/kristen/ ..................................... 14

https://web.archive.org/web/20150216200217/htt

p://rpitlerlaw.com/rachelgillette/ ........................... 14

https://web.archive.org/web/20150410080514/htt

p://rpitlerlaw.com/ .................................................. 14

vii

https://web.archive.org/web/20160529175110/htt

p://303creative.com/wpcontent/uploads/2014/01/DTPWebThumb.jpg ...... 14

https://web.archive.org/web/20160802012020/htt

p://303creative.com/portfolio/steadmanrealest

ate-com/ .................................................................. 14

https://web.archive.org/web/20160802012620/htt

p://303creative.com/portfolio/swanrealtorgrou

p-com/ ..................................................................... 14

https://web.archive.org/web/20160802072314/htt

p://303creative.com/portfolio/dtpweb/ .................... 14

https://web.archive.org/web/20160802080554/htt

p://303creative.com/portfolio/newwestcapitalcom/ ......................................................................... 14

https://web.archive.org/web/20160802080642/htt

p://303creative.com/portfolio/bridgetandnicolecom/ ......................................................................... 14

https://web.archive.org/web/20210623233429/htt

ps://www.slydersband.com/ .............................. 13, 14

Louis Hyman, How Sears Helped Oppose Jim

Crow, N.Y. Times, Oct. 20, 2018 ........................... 28

Breck P. McAllister, Lord Hale and Business

Affected with A Public Interest, 43 Harv. L.

Rev. 759 (1930)................................................. 25, 26

Nat’l Park Serv., Civil Rights in America: Racial Desegregation of Public Accommodations

(2009) ...................................................................... 28

viii

James M. Oleske, Jr., The Evolution of Accommodation: Comparing the Unequal Treatment

of Religious Objections to Interracial and

Same-Sex Marriages, 50 Harv. C.R.-C.L. L.

Rev. 99 (2015)......................................................... 31

Elizabeth Sepper & Deborah Dinner, Sex in

Public, 129 Yale L.J. 78 (2019).............................. 28

Elizabeth Sepper, The Original Meaning of

“Full and Equal Enjoyment” of Public Accommodations, 11 Calif. L. Rev. Online 572

(2021) ...................................................................... 22

Joseph William Singer, No Right to Exclude:

Public Accommodations and Private Property,

90 Nw. U. L. Rev. 1283 (1996) ............................... 24

Eugene Volokh, Treating Social Media Platforms Like Common Carriers?, 1 J. Free

Speech L. 377 (2021) .............................................. 13

INTEREST OF AMICI CURIAE 1

Amici are legal scholars with expertise in the history and modern application of public accommodations law. By virtue of their scholarship, pedagogy,

and public writings, they have a strong professional

interest in the proper development of the law. Amici

include Elizabeth Sepper, Professor of Law, The University of Texas at Austin School of Law; James

Oleske, Professor of Law, Lewis & Clark Law School;

and Joseph William Singer, Bussey Professor of Law,

Harvard Law School. Amici file this brief in their individual capacities.

INTRODUCTION &

SUMMARY OF ARGUMENT

I. The application of the Colorado AntiDiscrimination Act (the “Act”) in this case does not

burden Petitioners’ free speech rights. Public accommodations laws regulate conduct, not speech. So long

as they are content neutral, any incidental impact on

speech generally does not raise First Amendment

concerns.

In some cases, however, a public accommodations

law may burden speech—namely, when it interferes

1 All parties have consented to the filing of this brief. No counsel

for a party authored this brief in whole or in part, and no party

or counsel for a party made a monetary contribution intended to

fund its preparation or submission. No person other than amici

or amici’s counsel made a monetary contribution to the preparation or submission of this brief.

with activity both subjectively intended and objectively understood as expressing the regulated party’s

own message. The objective prong of this test requires a fact-intensive analysis that looks to whether

a regulated party is highly selective, engages in

standard commercial transactions, and engages in an

endeavor that is customarily associated with expressing a message of its own.

Here, no reasonable third party would view the

application of the Act as interfering with any message of Petitioners’ own. Put differently, third parties

can appreciate the difference between Petitioners expressing their own message and their rendering of

services to all customers pursuant to the equal access

requirement of the Act. And there is no merit to Petitioners’ suggestion, and that of their amici, that the

“expressive” nature of their services requires that

their business be wholly exempted from antidiscrimination law.

II. Even if Petitioners could show a burden on

protected speech, Colorado has compelling interests

in assuring full and equal access to the market and

protecting dignity in commercial transactions. Petitioners argue that the full and equal access interest

is not implicated because (a) they will provide some

services to gays and lesbians and (b) there is allegedly no market access issue. These arguments are foreclosed by history, tradition, and precedent, and raise

a nasty swarm of practical problems to which Petitioners offer no serious answers. As to protecting

dignity in the market, Petitioners do not deny Colorado’s interest, but instead claim that their dignity is

burdened by a law that prohibits them from discrim-

inating. This argument misdescribes Colorado law,

and rests on flawed historical and legal foundations.

The Court should reject Petitioners’ position, which

would inflict broad and irreparable damage upon the

very architecture of antidiscrimination law.

ARGUMENT

THE ACT DOES NOT BURDEN PETITIONERS’ FIRST AMENDMENT RIGHTS

A. Public Accommodations Laws Do Not

Generally Burden First Amendment

Rights

Public accommodations laws have a “venerable

history,” with roots in the common law and post-Civil

War enactments. Hurley v. Irish-Am. Gay, Lesbian &

Bisexual Grp. of Bos., 515 U.S. 557, 571 (1995). This

history confirms that “a State enjoys broad authority

to create rights of public access on behalf of its citizens.” Roberts v. Jaycees, 468 U.S. 609, 625 (1984)

(citing PruneYard Shopping Ctr. v. Robins, 447 U.S.

74, 81-88 (1980)). A State can thus assure full and

equal access in the provision of goods and services.

See infra at Part II.A. And it can extend those protections to gays and lesbians, including in the context of

civil marriage. See Masterpiece Cakeshop, Ltd. v.

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

(2018).

Petitioners assert that public accommodations

laws like Colorado’s are content- and viewpointdiscriminatory because “[t]he content of a message

determines whether CADA applies, and the viewpoint of the speaker determines the legality of the

message.” Pet’rs Br. 31. On this view, nearly all pub-

lic accommodations laws would trigger strict scrutiny

because they forbid signs inviting “White Customers

Only” and permit signs declaring “All Races Welcome.”

Petitioners’ theory is not—and never has been—

the law. To the contrary, public accommodations requirements “are well within the State’s usual power

to enact . . . and they do not, as a general matter, violate the First or Fourteenth Amendments.” Hurley,

515 U.S. at 572 (collecting cases). That is because

they regulate conduct, not speech—specifically, they

regulate the act of discriminating in the sale of goods

and services. Jaycees thus held that a ban on sex discrimination in public accommodations “does not aim

at the suppression of speech” and “does not distinguish between prohibited and permitted activity on

the basis of viewpoint.” 468 U.S. at 623. Similarly,

Hurley reasoned that a law did not “target speech or

discriminate on the basis of its content” where the

law concerned “the act of discriminating against individuals in the provision of publicly available goods,

privileges, and services on the proscribed grounds.”

515 U.S. at 572. Most recently, Masterpiece Cakeshop

confirmed the “general rule” that “business owners

and other actors in the economy” have no warrant to

“deny protected persons equal access to goods and

services under a neutral and generally applicable

public accommodations law.” 138 S. Ct. at 1727.

Simply put, where a State seeks to end discrimination in the marketplace and assure its citizens

“equal access to publicly available goods and services,” its goals are wholly “unrelated to the suppression of expression.” Jaycees, 468 U.S. at 624.

Thus, contrary to Petitioners’ account, it is usually irrelevant that public accommodations laws sometimes incidentally impact speech. “Where the government does not target conduct on the basis of its

expressive content, acts are not shielded from regulation merely because they express a discriminatory

idea or philosophy.” R.A.V. v. City of St. Paul, Minn.,

505 U.S. 377, 390 (1992). That rule governs here. The

fact that antidiscrimination laws “will require an

employer to take down a sign reading ‘White Applicants Only’ hardly means that the law should be analyzed as one regulating the employer’s speech rather

than conduct.” Rumsfeld v. FAIR, 547 U.S. 47, 62

(2006). By the same token, nondiscriminatory service

often requires a vendor to speak—and to do so in a

manner that is neither discriminatory nor unwelcoming (e.g., a family restaurant that sings “Happy Anniversary” for all married couples cannot refuse to do

so for interracial couples). The speech required by

civil rights laws, like the speech they prohibit, is

merely incidental to regulated conduct. See, e.g., id.

(rejecting claim that “recruiting assistance” was itself

unlawfully compelled speech).

B. In Rare Cases, Public Accommodations

Laws May Improperly Burden First

Amendment Rights

1. Interference with a person’s “own

message”

Although public accommodations laws usually do

not burden First Amendment rights, they can do so

when applied in “peculiar” ways that go beyond securing equal access to goods and services. Hurley,

515 U.S. at 572. Specifically, public accommodations

laws may impose First Amendment burdens when

they interfere with activity that is both subjectively

intended and objectively understood as expressing

the regulated party’s “own message.” Id. at 573. This

test is familiar from the Court’s expressive conduct

jurisprudence and properly identifies the universe of

peculiar circumstances where prohibiting discrimination in commerce may raise free speech concerns. See,

e.g., Texas v. Johnson, 491 U.S. 397, 404 (1989);

Spence v. State of Wash., 418 U.S. 405, 410-11 (1974).

In evaluating First Amendment burdens alleged

to arise from content-neutral access regulations, the

Court has frequently asked whether third-party observers would objectively perceive the complaining

party to be expressing its own message when providing access under those regulations. In two cases involving peculiar applications of antidiscrimination

law, the Court emphasized the risk that third parties

would be misled as to the complaining party’s own

message. See Boy Scouts of Am. v. Dale, 530 U.S. 640,

653 (2000) (requiring Boy Scouts to accept gay scout

master would “send a message” to “the world”); Hurley, 515 U.S. at 572-73 (requiring parade to include

unwanted group would affect “the message conveyed

by the private organizers” and “alter the expressive

content of [the] parade”). In many more cases, the

Court rejected claims that access requirements alter

the regulated party’s own speech so as to raise First

Amendment concerns. See FAIR, 547 U.S. at 64-65

(“[S]tudents can appreciate the difference between

speech a school sponsors and speech the school permits because legally required to do so, pursuant to an

equal access policy.”); Turner Broad. Sys., Inc. v.

FCC, 512 U.S. 622, 655 (1994) (Turner I) (finding “lit-

tle risk that cable viewers would assume that the

broadcast stations carried on a cable system convey

ideas or messages endorsed by the cable operator”);

PruneYard, 447 U.S. at 87 (finding that the views

expressed by members of the public in a mall “will

not likely be identified with those of the [mall] owner”).

Although this rule has deep roots, Petitioners resist it, warning that “if third-party (mis)perceptions

were all that mattered, there would be few limits to

government-compelled speech.” Pet’rs Br. 30. But Petitioners conflate the analysis that governs in a case

like this one (involving content-neutral laws that incidentally impact speech) with the analysis from very

different cases (where a law was either content based

or facially aimed at speech). See, e.g., Wooley v.

Maynard, 430 U. S. 705 (1977); W. Va. Bd. of Educ. v.

Barnette, 319 U. S. 624 (1943).

That distinction is crucial. See FAIR, 547 U.S. at

62 (warning that it “trivializes the freedom protected

in Barnette and Wooley” to claim that the First

Amendment forbids a content-neutral access regulation at law schools). When laws are aimed at speech,

they lie at the core of what the First Amendment

aims to prohibit. See Turner I, 512 U.S. at 641. Given

that such action is so dangerous and so clearly targeted at speech, the Court has not looked to thirdparty perception. There is no need. In contrast, when

a law regulates only conduct, the risk to First

Amendment values is much lower. See Turner

Broad. Sys., Inc. v. FCC, 520 U.S. 180, 213 (1997)

(Turner II). Moreover, there are many cases where

neutral regulation of conduct—even if it causes inci-

dental impacts on speech—does not have any actual

effect on the regulated party’s own expression. So in

assessing a claim that the government has burdened

speech, it makes sense to start by asking whether a

regulation has altered (and thus burdened) a person’s

own message in a manner recognized by third parties. And that is exactly what this Court has long

done.

2. The structure of the objective inquiry

The essential inquiry is whether the application of

the public accommodations law interferes with activity that is subjectively intended and objectively understood as expressing the regulated party’s own

message. Here, the parties agree that Petitioners subjectively intend to speak. The key question is the objective one: would third parties reasonably understand Petitioners to be expressing their own message

if Petitioners were to comply with the Act and serve a

gay couple?

That inquiry is fact intensive. But this Court has

identified three factors as useful in assessing whether providing service would be perceived as sending

the business’s own message.

The first factor is selectivity: whether a business

offers goods, services, or accommodations widely to

the public (thus suggesting that it serves all comers

and that service to any particular customer does not

convey its own views), or whether it instead acts with

a sustained degree of selectivity indicating approval

or association. In Hurley, the Court saw this factor as

supporting a First Amendment claim, since the parade organizers had picked who could march “rather

like a composer” to comport with their own view of

“what merits celebration.” 515 U.S. at 574. In contrast, in Jaycees, decisions about who could join a civic group did not strike the Court as protected, because “the local chapters of the Jaycees are large and

basically unselective groups.” 468 U.S. at 621. For

similar reasons, the PruneYard Court did not see any

burden on a mall owner’s message where a law allowed members of the public to solicit, since the mall

was “open to the public to come and go as they

please.” 447 U.S. at 87. The question here is whether

a business’s full set of decisions reveals its own message—namely, that serving someone reflects its approval or endorsement of that person or their relationships. When a business serves just about everybody, the provision of service does not send any particular message, and so being required to serve a particular person (or group) would not interfere with

that business’s own message, since a third party

would not see any message in the business’s provision of service. 2

The second factor is commerce: when a business

enters into a commercial transaction—receiving

money in exchange for its offerings—third parties are

2 Because the expectations are that all are served in places open

to the public, refusing service only to people of a particular race

or religion would send a message. But that discriminatory message remains incidental to the core regulated conduct. If it were

protected in its own right, then expressive freedom claims

would logically extend to all businesses that seek to discriminate, eviscerating antidiscrimination laws altogether.

unlikely to see the business as expressing a message

of its own from that transaction (apart from a message about its willingness to accept money in exchange for goods and services). See PruneYard, 447

U.S. at 87; Jaycees, 468 U.S. at 620; Runyon v.

McCrary, 427 U.S. 160, 168, 176 (1976). Only in a

very narrow set of cases could commercial ventures

claim that when they are required to accept profitable commercial transactions with protected groups,

their own message is being burdened in a manner

understood by third parties. See, e.g., Dale, 530 U.S.

at 657 (distinguishing membership organizations

from “clearly commercial entities”); Hurley, 515 U.S.

at 572-73, 576, 579-80 (distinguishing the application

of civil rights laws to commercial entities from cases

of “noncommercial speech restriction”).

The final factor is custom: whether the endeavor

is one that—in our history and tradition—is usually

associated with a business communicating a message

of its own. Put differently, is the business engaged in

activity that has traditionally been seen as involving

its own expressive quality? This factor carried major

weight in Hurley, where “the expressive nature of a

parade was central to [the Court’s] holding.” FAIR,

547 U.S. at 63. FAIR also drew upon custom in contrasting the “expressive quality” of “a law school’s recruiting services” with “a parade, a newsletter, or the

editorial page of a newspaper.” Id. at 64. And many

other cases have looked to custom while addressing

whether conduct is sufficiently expressive as to convey a message. See, e.g., Texas, 491 U.S. at 404-05.

Together, these three factors—selectivity, commerce, and custom—provide a powerful guide to as-

sessing whether a public accommodations law interferes with activity that is objectively understood as

expressing the regulated party’s own message.

Within this inquiry, no one factor is dispositive,

and no profession is wholly exempted from the application of public accommodations laws. Consider the

classically expressive crafts of writing, poetry, and

painting. They are all associated with communicating

a creator’s own message and with an intensely selective approach to potential consumers or purchasers—

and so would generally evoke First Amendment protection. But not every writer, poet, or painter could

lay claim to that principle. Imagine a baker who routinely writes “Happy Anniversary!” on cakes, a poet

who sells birthday cards in a local bookstore, or a

boardwalk caricature artist who draws stylized portraits of any couple that strolls past. No objective observer would perceive them to be expressing their

own personal message of approval in every sale, no

matter how creative their artwork. See Telescope Media Grp. v. Lucero, 936 F.3d 740, 776 (8th Cir. 2019)

(Kelly, J., dissenting) (explaining that a “boardwalk

cartoonist who offers his services to any passing

beachgoer” does not have a right to “refuse[] to paint

the portrait of an interracial couple or a woman in a

hijab”).

Pulling this all together: When a public accommodations law is content neutral—like the Act here at

issue—its incidental impacts on speech are usually

permissible. But when the application of such a law

requires a business to render service in circumstances that subjectively and objectively burden its own

message, then the First Amendment is implicated.

And those rare circumstances occur only when a

business is highly selective, is not engaged in commercial activity, and/or is engaged in an endeavor

where businesses are customarily understood to be

expressing their own message. This test is sensible,

administrable, and consistent with how public accommodations laws have historically been applied in

our Nation.

C. The Act Does Not Burden Petitioners’

First Amendment Rights on This Sparse

Record

There is no merit to Petitioners’ claim that being

required to serve same-sex couples under the Act

would violate their First Amendment rights. As Respondents explain, the Act does not require Petitioners to change the services or products they offer, but

rather requires only that Petitioners not discriminate

in their provision of those services and products. See

Resp’ts Br. 15-20. This is a content-neutral requirement that does not aim at expression. Although it incidentally impacts Petitioners’ speech, that poses no

First Amendment difficulty because the Act does not

interfere with activity that is subjectively intended

and objectively understood to express Petitioners’

own message. There is no basis here to conclude that

the objective part of this standard is met: no reasonable third party would think that Petitioners express

their own message—rather than standard messages

of profit-seeking and legal compliance—when they

render services to customers.

1. No reasonable observer would see the

Act as interfering with Petitioners’

own message

Here, Petitioners do not satisfy any of the three

factors identified by this Court for assessing whether

providing service under the Act would be perceived

as sending the Petitioners’ own message. For starters, Petitioners are not selective. This is apparent

from the public record, which makes clear that Petitioners’ provision of website services would hardly be

perceived as a “coherent speech product” indicating

their own views of “what merits celebration.” Eugene

Volokh, Treating Social Media Platforms Like Common Carriers?, 1 J. Free Speech L. 377, 423-25

(2021).

One of the websites in Petitioners’ portfolio—on

which

the

much-touted

“Designed

303creative.com” notice appears—is a website for a

blues band promoting a song list featuring “Shake

Your Money Maker.” Another—which also bore a

“Designed By 303Creative LLC” notice—was for a

law firm prominently listing divorce and marijuana

law services. Other 303 Creative projects include

website design for real estate and mortgage companies, a roofing company, a sports apparel company, a

jeweler, a DJ service, and a breeder of French bulldogs with puppies to spare. 3

See

https://303creative.com/portfolio/slydersband-com/;

https://web.archive.org/web/20210623233429/https://www.slyder

Petitioners claim that Lorie Smith intends her

“custom websites” to be “her message” and “her

speech,” Pet’rs Br. 12-13, 29, but no reasonable observer familiar with Petitioners’ work and web design

would draw that conclusion. The range and breadth

of clients, causes, and messages represented here

makes clear that Petitioners are exceptionally nonselective. Nobody would review Petitioners’ work and

infer that they approved, endorsed, or otherwise sent

sband.com/;

https://web.archive.org/web/20150410080514/http://rpitlerlaw.co

m/;

https://web.archive.org/web/20150216132207/http://rpitlerlaw.co

m/kristen/;

https://web.archive.org/web/20150216200217/http://rpitlerlaw.co

m/rachelgillette/;

https://web.archive.org/web/20160802080642/http://303creative.

com/portfolio/bridgetandnicole-com/;

https://web.archive.org/web/20160802012020/http://303creative.

com/portfolio/steadmanrealestate-com/;

https://web.archive.org/web/20160802080554/http://303creative.

com/portfolio/newwestcapital-com/;

https://web.archive.org/web/20140523175115/http://coloradohous

esales.com/about/;

https://web.archive.org/web/20160802012620/http://303creative.

com/portfolio/swanrealtorgroup-com/;

https://303creative.com/portfolio/fsr/;

https://303creative.com/portfolio/ohio-sports-apparel/;

http://morningstarjewelersinc.com/about/;

https://web.archive.org/web/20160529175110/http://303creative.

com/wp-content/uploads/2014/01/DTPWebThumb.jpg;

https://web.archive.org/web/20160802072314/http://303creative.

com/portfolio/dtpweb/;

https://303creative.com/portfolio/dog-breeder-website/.

a message of their own concerning divorce, marijuana

use, breeding French bulldogs, hiring a DJ from DanceTraxProductions, or shaking your money maker.

At bottom, Petitioners’ commercial provision of

website design services involves them in nothing

more than a collection of “individual, unrelated segments” of third-party messages. See Hurley, 515 U.S.

at 576. Petitioners’ choice to serve a client does not

send any objective message, even if they use a stamp

on every site and insist in a legal brief that

Ms. Smith promotes “causes closer to her heart.”

Pet’rs Br. 2. Because Petitioners are not selective, being required to serve more clients does not burden a

message of their own apparent to any third-party observer.

This conclusion is confirmed by the commercial

nature of Petitioners’ work. They are not throwing a

parade. See Hurley, 515 U.S. at 574. They are not

running a civic membership organization. See Dale,

530 U.S. at 657. They do not enter into an expressive

association with every prospective customer, and

they do not impliedly adopt every customer’s message

as their own. See, e.g., FAIR, 547 U.S. at 65 (“Nothing about recruiting suggests that law schools agree

with any speech by recruiters.”). Instead, Petitioners

exchange website design services for money, a practice that further undermines any perception that

they are engaged in a fundamentally and inherently

expressive endeavor.

Finally, it is not customary in American life to

presume that web designers approve, endorse, or

otherwise personally associate themselves with every

website they design. The nature of web design ser-

vices is usually transactional and arms-length. When

designers include identifying information on a website, it is generally as part of an effort to solicit additional web design business, rather than to adopt the

website as their own speech. That is one reason why

most Americans have no idea (and don’t care) who

created most websites they visit. They customarily

understand such websites to express the views of the

customers who commissioned the web design.

For all these reasons, the application of the Act

does not burden Petitioners’ First Amendment rights.

No reasonable third party would understand Petitioners to express a message of their own in rendering services under the Act, so there is no basis for

concluding that the Act interferes with their expression.

Although Petitioners’ case falls firmly within the

general rule that public accommodations laws can be

applied without issue under the First Amendment,

some web design services may present closer calls.

We offer one hypothetical here to illustrate how the

approach described above may operate elsewhere.

Imagine a bible study group consisting of three

like-minded Baptists who study graphic design and

make a new website for their church. Word of their

skill spreads within their religious community and

they are asked to develop websites for three nearby

churches. The trio goes into business as True Word

Creative (“TWC”). TWC does not advertise to the

general public. It accepts discounted rates and consistently works only with familiar groups within

their local church community. For that reason, it

turns down requests for design services from several

businesses, a Catholic high school, and a same-sex

couple. In our view, applying public accommodations

laws to a group like TWC would raise First Amendment concerns, since they are highly selective, not

purely commercial, and operating in a way generally

understood as endorsing or expressing approval of

the Baptist clients to whom they provide services.

But if TWC were eventually to change its business

model—offering services to the general public at

standard market rates and entering into contracts

with people from all backgrounds—then there would

no longer be any First Amendment basis for concluding that it could decline to serve groups shielded by

antidiscrimination law.

2. Generally artistic endeavors are not

wholly exempt from public accommodations laws

Petitioners separately suggest, and their amici

contend, that application of the Act burdens their

First Amendment rights because they are engaged in

a generally expressive trade. See Pet’rs Br. 17, 19; see

also, e.g., Br. for Dale Carpenter et al. as Amici Curiae 19. This argument goes awry at every step. We

identify five core errors.

First, Petitioners and their amici misdescribe the

operation of the Act. As Respondents explain, the Act

applies only to the act of selling. Resp’ts Br. 13. It

does not require Petitioners to create anything they

would not otherwise create, and so the artistry or

lack thereof in their commercial venture is beside the

point. The Act requires only that they sell their designs to all buyers.

Second, relatedly, Petitioners and their amici

largely ignore the commercial context here. Many

professions (including the law) involve at least some

acts that would qualify as fully protected speech or

art if done by a citizen while home alone or standing

on a soapbox. But when a person enters “the marketplace of commerce,” they lose the “complete control”

they enjoy in “the marketplace of ideas.” Jaycees, 468

U.S. at 636 (O’Connor, J., concurring in part and concurring in the judgment). Going into business marks

a qualitative change in the nature of a person’s activity.

Third, whereas Petitioners and their amici plant

their flag on Hurley, that case affirmed the constitutionality of public accommodations statutes in most

applications. See 515 U.S. at 571-72. Moreover, in

identifying the scope of the “peculiar” exception it

recognized, Hurley pointed to the uniquely expressive

nature of a parade. Because parades have long been

perceived as an act of “inherent expressiveness,” and

because the groups that march in a parade are themselves a key part of its message, requiring a parade

to include unwanted groups is necessarily to regulate

the core content of the parade’s message as grasped

by the wider world. See id. at 572-73. But a store is

not a parade. Stores do not by their nature exist to

express messages. Even where a store aims to speak,

requiring its offerings to be available to protected

groups does not regulate the content of that message

in a manner evoking the expressive association logic

animating Hurley.

Fourth, the proposed artistic endeavor exemption

is not only theoretically and historically unsound, but

also unworkable. Our legal tradition offers no resources or precedents for pronouncing certain professions too “expressive” to be subject to antidiscrimination law. Nor does our tradition offer any basis to intelligently decide what professions do and don’t make

the cut. See Dallas v. Stanglin, 490 U.S. 19, 25 (1989)

(“It is possible to find some kernel of expression in

almost every activity a person undertakes.”). Even

within a single field, there may be huge variation in

how much artistry, speech, or expression are involved

in particular tasks—which may, in turn, depend on

the client, the context, the price, the locale, and more.

To implement Petitioners’ theory would require

courts to pass judgment about an astonishingly wide

range of activities in virtually every profession. This

would quickly overwhelm the federal judiciary, while

sowing discord about fundamental civil rights protections. See Elane Photography, LLC v. Willock, 309

P.3d 53, 71 (N.M. 2013).

Finally, the exemption would invite mischief beyond antidiscrimination law. For instance, many labor laws regulate strikes and may require workers to

resume their work activities; would applying them to

“expressive” professions raise First Amendment concerns on the theory that ending the strike forces the

artists to speak or create their art? See, e.g., Seattle

Opera v. NLRB, 292 F.3d 757, 759 (D.C. Cir. 2002).

Similarly, Petitioners’ rule may call into doubt the

regulation of educational institutions that describe

their mission in expressive terms. But see Runyon,

427 U.S. at 168-72. And there would surely be many

other settings—including health and safety—where

businesses assert that legal requirements somehow

force them to speak or stay silent in a manner intruding upon their “expressive” aims.

Although Petitioners’ and their amici’s focus on

artistic endeavors is deeply mistaken, it starts from a

reasonable intuition: that in some cases, it matters

whether a business is engaged in activities that seek

to express its own message. As explained above, the

right way to account for this intuition is within the

multi-factor, fact-intensive objective inquiry that

asks whether a public accommodations law interferes

with a business’s own message. Such analysis properly considers whether the business is engaged in an

endeavor customarily seen as expressing a message

of its own. Petitioners’ very different proposal—

identifying whole fields or practices as “expressive”

and declaring them exempt from civil rights law—is

the wrong way to implement this concern and should

be rejected.

II.

THE ACT FURTHERS COMPELLING

INTERESTS IN ASSURING FULL AND

EQUAL ACCESS AND PROTECTING

DIGNITY IN THE MARKET

Even if Petitioners could show that the Act burdens their own message, that burden would be justified by Colorado’s compelling interests in assuring

full and equal access and protecting dignity in the

marketplace. Petitioners’ insistence otherwise lacks

merit. There is no legal or historical support for

blessing partial access or limiting the application of

public accommodations laws to monopolies, a test

that in any event would be extraordinarily confusing

and unworkable. Nor do Petitioners’ own asserted

dignitary interests in discriminating withstand scru-

tiny, let alone outweigh a state interest in protecting

all market participants.

A. Full and Equal Access to the Market

This Court has long held that state laws assuring

citizens “equal access to publicly available goods and

services” further “compelling state interests of the

highest order.” Jaycees, 468 U.S. at 624; accord Bd.

Dirs. Rotary Club Int’l v. Rotary Club of Duarte, 481

U.S. 537, 549 (1987). That principle is deeply rooted

in our legal tradition, and springs from “old common

law” duties that promised “to any member of the public . . . [that] they will not be turned away merely on

the proprietor’s exercise of personal preference.” Hurley, 515 U.S. at 578. While States have gradually expanded the protected classes covered by their public

accommodations laws, this Court has remained

steadfast in affirming the State’s interest in assuring

full and equal access. See Masterpiece Cakeshop, 138

S. Ct. at 1727-28.

Petitioners assert that Colorado’s interest in full

and equal access is not implicated here—either because Petitioners will provide some web design services to gays and lesbians, or because gays and lesbians can seek web design services elsewhere in the

market. On both accounts, Petitioners are mistaken.

1. This state interest is not achieved by

the provision of partial and unequal

access

Petitioners first contend that Colorado lacks a

strong interest here because Ms. Smith “does not discriminate against anyone and will happily serve everyone, regardless of status.” Pet’rs Br. 37. But

Ms. Smith will “happily serve” gay and lesbian clients unless they ask for particular services, in which

case she will completely refuse them even as she renders the same services to everyone else. That is not

full and equal access, and our antidiscrimination

laws would be gutted if read to authorize such denials of service.

Throughout our history, a State’s interest in assuring full and equal access has always been understood to apply to every aspect of a covered business.

Statutes enacted after the Civil War thus forbade a

business from withholding “full and equal enjoyment”

of any goods or services offered to the public. Elizabeth Sepper, The Original Meaning of “Full and

Equal Enjoyment” of Public Accommodations, 11 Calif. L. Rev. Online 572, 580 (2021). Courts repeatedly

reinforced this view. For instance, in 1890, the Michigan Supreme Court held that an eating house had

discriminated by requiring a Black man to move to a

table on the saloon side, six feet from the restaurant—rejecting the defendant’s argument that it did

not refuse equal service because it would “serve him

in precisely the same manner in which he would be

served at the table at which plaintiff had seated himself.” Ferguson v. Gies, 82 Mich. 358, 362 (1890). Citing a line of cases dating to the 1920s, the California

Supreme Court likewise held that the textual guarantee of “full and equal . . . services” demanded

equality in “all aspects of the business.” Koire v. Metro Car Wash, 40 Cal. 3d 24, 29-30 (1985) (emphasis

added). See also Dir., Div. on Civil Rights v. Slumber,

Inc., 82 N.J. 412, 413-16 (1980) (upholding discrimination case where hotel assigned Black patrons to

rooms on one floor of hotel); Johnson v. Auburn & Sy-

racuse Elec. R. Co., 222 N.Y. 443, 448-49 (1918) (holding that an amusement park could not exclude Black

visitors from the dance pavilion).

Petitioners’ argument is thus at odds with history.

It also defies this Court’s precedent, which has twice

rejected arguments that civic groups can exclude

women from full membership even where those

groups allow women some rights of attendance or engagement. See Duarte, 481 U.S. at 541; Jaycees, 468

U.S. at 613.

In sum, Colorado retains a compelling interest in

assuring full and equal access, even if Petitioners allow gay and lesbian customers partial access to the

business.

2. There is no basis for limiting this

state interest to businesses with monopoly power

Petitioners attempt to introduce a second carveout to the full and equal enjoyment interest: they assert that Colorado has no real interest in enforcing

its antidiscrimination requirements because “Coloradoans have no ‘actual problem’ accessing the websitedesign market,” and others can provide the goods and

services that petitioners refuse to provide. See Pet’rs

Br. 37-38; see also, e.g., Br. for Law and Economics

Scholars as Amici Curiae 14-17; Br. for Christopher

R. Green as Amicus Curiae (“Green Br.”) 22-28. Petitioners’ position is that in the absence of monopoly or

uncompetitive markets, States have little interest in

ensuring equal treatment.

This argument has no credible basis in history or

common law; Petitioners’ insistence otherwise plainly

mischaracterizes the historical record. Moreover, this

Court’s precedent—as well as twentieth-century

practice—are firmly at odds with Petitioners’ theory.

Finally, operationalizing a “monopoly” theory of antidiscrimination law would be virtually impossible.

a. History

History offers no support for the notion that a

State’s interest in public accommodations law is limited to businesses with monopoly power. At common

law, the duty to serve was imposed on a wide range

of public accommodations, including those that

lacked any monopoly power. And this duty was based

solely on a holding-out rationale. To be clear, this is

not a case of dueling commentators or competing theories: there is no serious evidence supporting a monopoly reading of the cases, and the few scattered

quotes that Petitioners’ amici rely upon are taken totally out of context.

The common law rule requiring innkeepers, common carriers, and other tradespeople to provide their

services without discrimination rested squarely on

the view that “[t]hose who hold themselves out as

ready to serve the public thereby make themselves

public servants and have a duty to serve.” Joseph

William Singer, No Right to Exclude: Public Accommodations and Private Property, 90 Nw. U. L. Rev.

1283, 1321 (1996) (collecting leading cases and authorities supporting this point). That same holdingout rationale was widely accepted not only by commentators, but also by early American courts. See,

e.g., Markham v. Brown, 8 N.H. 523, 528 (1837);

Jencks v. Coleman, 13 F. Cas. 442, 443 (C.C.D.R.I.

1835) (Story, J.).

Petitioners’ amici attempt to convert Sir Matthew

Hale’s discussion of excessive wharf rates in 1670—

which was first published in 1787 (long after the duty

to serve was established at common law)—into a controlling “scarcity of substitutes” requirement for public accommodations laws. See Green Br. 3-4, 22-24.

But this argument gets Hale wrong. Hale elsewhere

addressed the duties of “common carrier[s]” and other such “tradesmen”—and, in so doing, said their duties were based on “implied contract,” not monopoly.

See Matthew Hale, An Analysis of the Civil Part of

the Law 76-77 (6th ed. 1820).

Regardless, this discussion of Hale is a sideshow:

not a single American case discussing the duties of

common carriers and innkeepers between 1787 and

1868 relied on Hale’s view of wharf rates. Instead,

these cases looked to Blackstone, Story, or James

Kent—none of whom articulated any monopoly rationale and all of whom espoused the holding-out rationale. See, e.g., Chevallier v. Straham, 2 Tex. 115,

116-18 (1847); Fish v. Chapman & Ross, 2 Ga. 349,

353 (1847); State v. Moore, 12 N.H. 42, 45-46 (1841);

Dwight v. Brewster, 18 Mass. 50, 55 n.1 (1822).

In Munn v. Illinois, 94 U.S. 113, 126-29 (1876),

this Court mentioned Hale’s teachings about controlling excessive fees charged by virtual monopolies. See

also Allnutt v. Inglis (1810), 104 Eng. Rep. 206, 21011 (similar). But Munn did not adopt a monopoly rationale as a limitation on legislatures’ power to regulate and create access requirements, and it certainly

did not redefine (or reject) the duty to serve that long

had been applied to all manner of businesses that

lacked monopoly power. See Breck P. McAllister,

Lord Hale and Business Affected with A Public Interest, 43 Harv. L. Rev. 759, 769 (1930) (a monopoly test

could not “have been readily reconciled with the cited

instances of fixing the fees of chimney sweeps, the

rates of hauling by cartmen, the commissions of auctioneers, and the like”); Edward A. Adler, Business

Jurisprudence, 28 Harv. L. Rev. 135, 156 (1914)

(“Nowhere [in common carrier cases] is monopoly

suggested as the distinguishing characteristic.”).

As a fallback, an amicus points to Alfred Avins’

collection of twenty allegedly “representative cases

about the monopoly characteristics of common carriers.” Green Br. 28. But not a single one of the quotations highlighted from these cases—the vast majority

of which concern bridges, turnpikes, ferries, and canals operating as public franchises—purports to declare that a common carrier only had a duty to serve

if it was operating as a monopoly. And, critically,

none of these cases says or even implies that legislatures lack the power to regulate non-monopoly businesses under public accommodations statutes. Cf.

John B. Cheadle, Government Control of Business, 20

Colum. L. Rev. 550, 580 (1920). In the end, the effort

to read into the Avins cases a constitutional limit on

the duty to serve suffers from the same flaws Justice

Brandeis identified with efforts to do likewise with

Hale’s remarks on wharf rates: “Lord Hale was

speaking of the particulars, wharves and cranes in

ports; and did not purport to generalize the obligation to serve all persons at reasonable rates in other

circumstances. He was speaking of duties arising at

common law, and not of limitations upon the legislative power of Parliament.” New State Ice Co. v. Lieb-

mann, 285 U.S. 262, 302 n.43 (1932) (Brandeis, J.,

dissenting).

There is thus overwhelming evidence that the duty to serve arose at common law from a holding-out

rationale—that applied to a wide range of public accommodations, including those that lacked monopoly

power. See Messenger v. State, 41 N.W. 638, 639

(Neb. 1889) (“A barber, by opening a shop, and putting out his sign, thereby invites every orderly and

well-behaved person who may desire his services to

enter this shop during business hours.”); Joseph v.

Bidwell, 28 La. Ann. 382, 382-83 (1876) (upholding

enforcement of nondiscrimination requirement that

applied to “all places of business, or of public resort”).

State public accommodations laws were understood

to codify this duty to serve. Donnell v. State, 48 Miss.

661, 681 (1873).

And on this basis, this Court upheld the application of a public accommodations statute over a century ago. See W. Turf Ass’n v. Greenberg, 204 U.S. 359,

364 (1907). That case did not involve a business with

monopoly power, nor did the Court reference any

such concerns. Instead, consistent with a long line of

authority, the Court based its analysis on the holding-out principle. See id. (“The race course in question, being held out as a place of public entertainment and amusement, is, by the act of the defendant,

so far affected with a public interest that the state

may, in the interest of good order and fair dealing,

require defendant to perform its engagement to the

public.”).

Attempts to redescribe this vast body of law and

commentary as articulating a monopoly theory are

based on a mistaken view of just a handful of sources,

none of which limit a State’s interest in public accommodations law to addressing discrimination by

monopoly businesses.

b. Precedent and American Practice

Any doubt on that score is confirmed by more

modern practice and precedent. Throughout our history, disfavored minorities typically had access to a

market niche, while being denied full and equal enjoyment of the entire market. Before the Civil Rights

Era, for example, Mexican, Asian, and Sikh farm laborers in California might frequent the one market

willing to serve them, while otherwise encountering

signs reading “Just-White-Trade-Only.” Nat’l Park

Serv., Civil Rights in America: Racial Desegregation

of Public Accommodations 92-93 (2009). Black Americans in the South could buy a wide array of goods

from the Sears catalogue. See Louis Hyman, How

Sears Helped Oppose Jim Crow, N.Y. Times, Oct. 20,

2018. In the 1950s, roughly half of the resorts in

Maine, Vermont, and New Hampshire allowed Jews

as guests. See Charles Abrams, “. . . Only the Very

Best Christian Clientele,” Commentary, Jan. 1955, at

13. And in the 1960s, women had robust dining options, but were excluded from businessmen’s lunches

and “men’s grills.” Elizabeth Sepper & Deborah Dinner, Sex in Public, 129 Yale L.J. 78, 86-87 (2019).

Public accommodations laws were enacted to

eradicate precisely such discrimination—even if minorities could ultimately obtain service from another

business within any given market. These laws did

not aim to ensure “access to some places of public accommodation,” but rather to “guarantee equal access

to all goods and services otherwise available to the

public.” Telescope Media Grp., 936 F.3d at 777 (Kelly,

J., dissenting).

This is clear from the Court’s leading case of the

era, Heart of Atlanta Motel, Inc. v. United States, 379

U.S. 241 (1964). The same year that case was decided, “[f]ourteen major Atlanta hotels and motels []

publicly pledged to accept reservations regardless of

race ‘in accordance with usual hotel practices.’” Atlanta Hotels Drop Color Line, N.Y. Times, Jan. 12,

1964, at 1. But this Court did not hesitate to uphold

the application of the public accommodations provisions of the Civil Rights Act of 1964 to an Atlanta hotel. And the Court offered no suggestion whatsoever

that the existence of alternative lodging undermined

the government’s interests in full and equal access.

See 379 U.S. at 253 (referring to “the obvious impairment of the Negro traveler’s pleasure and convenience that resulted when he continually was uncertain of finding lodging”).

That same logic forecloses Petitioners’ suggestion

that Colorado’s interest is diminished by the possibility that gay and lesbian couples could potentially obtain comparable web design services elsewhere.

c. Practicalities

There is also a good practical reason why Petitioners’ monopoly theory has never been accepted: it

is extraordinarily unworkable.

For starters, ascertaining the existence of a monopoly—and defining the relevant market—is itself

complex, often involving burdensome expert testimony and judicial factfinding. See Telecor Commc’ns,

Inc. v. Sw. Bell Tel. Co., 305 F.3d 1124, 1131 (10th

Cir. 2002) (“There is no subject in antitrust law more

confusing than market definition.”). Even for sophisticated and well-resourced firms engaged in high

stakes transactions, mapping potential antitrust concerns is a costly and uncertain endeavor. Transforming every application of antidiscrimination law into

an antitrust question, both at the point of sale and in

any ensuing lawsuit, would invite a logistical nightmare.

Nor do ad hoc, shoot-from-the-hip theories of monopoly power answer the very real, practical questions courts, businesses, and consumers would confront if Petitioners’ theory were adopted:

•

What other businesses are in the same market? Does the existence of web-based services

matter?

•

Do customers’ home addresses set the parameters of the market they are in and thus control

whether discrimination is unlawful?

•

Are regular surveys required to assess whether other businesses will actually serve each

protected group?

•

Will customers—when touring Main Street or

Google—be forced to rely on listings of which

businesses will serve people of their religion,

sex, national origin, or sexual orientation?

Petitioners and their amici offer no serious answers to these questions. That’s because there are

none. To hold that Colorado has only a compelling

interest in enforcing the Act in noncompetitive mar-

kets—as Petitioners and their amici invite the Court

to do—would be ahistorical, legally unjustified, and

(in practice) downright irresponsible.

B. Dignity in the Market

When Jackie Robinson hit the road, he faced more

hardships than merely finding “some hotel that would

have him.” He also faced “the indignity of not being

able stay in the same hotel as his white teammates.”

See James M. Oleske, Jr., The Evolution of Accommodation: Comparing the Unequal Treatment of Religious Objections to Interracial and Same-Sex Marriages, 50 Harv. C.R.-C.L. L. Rev. 99, 138 (2015).

This speaks to yet another “fundamental object” of

public accommodations laws: thwarting “the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.” Heart

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

Cakeshop, 138 S. Ct. at 1723; Bob Jones Univ. v.

United States, 461 U.S. 574, 603-04 (1983).

Rather than acknowledge the dignitary harms

that would result from their position, Petitioners assert that by prohibiting them from discriminating,

the Act fails to respect their own dignity. Pet’rs Br.

39. That argument is mistaken.

To start, Colorado’s Act does not prioritize the interests of gays and lesbians over the interests of religious people. It ensures that everyone—people of all

races, genders, religions, sexual orientations, and

abilities—is afforded full and equal access to the open

marketplace. No group is unfairly benefitted, and no

group is unfairly burdened. Ms. Smith enjoys the

very same legal protections that same-sex couples do

when she goes about her day and seeks to participate

fully and equally in commercial life.

Nor is there merit to Petitioners’ claim that serving all Coloradoans injures their dignity. As the owner of a business, Ms. Smith accepted the benefits and

the responsibilities that come with offering services

to the public in commerce. Nebbia v. New York, 291

U.S. 502, 538-39 (1934) (“The Constitution does not

secure to any one liberty to conduct his business in

such fashion as to inflict injury upon the public at

large, or upon any substantial group of the people.”).

This Court has of course recognized that there are

sincere “religious and philosophical objections to gay

marriage,” Masterpiece Cakeshop, 138 S. Ct. at 1727,

but has never found that dignitary interest to give

license to businesses to engage in discrimination in

the commercial marketplace. Accepting Petitioners’

claim would open the door to businesses to seek exemptions because they cannot tell customers of a different race, religion, or sex: “We do not serve your

kind here.”

Under Colorado’s Act, the Petitioners retain extraordinary latitude to express their own messages.

Because “no specific message is dictated by the

State,” Petitioners remain able to engage in protected

activities and disseminate their preferred views.

PruneYard, 447 U.S. at 87; see also Brush & Nib

Studio, LC v. City of Phoenix, 247 Ariz. 269, 317

(2019) (Timmer, V.C.J., dissenting) (“Plaintiffs retain

control over the type of products they sell, their style

and design, and the specific messages written . . . .

They can freely publish views opposing same-sex

marriages or say nothing at all about marriages.”).

Here, Ms. Smith can design her own website to express her views on marriage. She can devote substantial time and attention—as well as business resources—to advocating against same-sex marriage or

in favor of her own vision of marriage. She can even

include text on her business website that disclaims

“any sponsorship of the message” conveyed by websites she works on. PruneYard, 447 U.S. at 87. But

she may not refuse to serve would-be customers

based on their sexual orientation.

That rule does not invade Ms. Smith’s mind or

deny her dignity. It simply requires a modicum of civility and equality in operating her public-facing

business.

CONCLUSION

For the reasons given above, the judgment below

should be affirmed.

Respectfully submitted,