Amicus Curiae Brief — Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n, 138 S. Ct. 419 (2017) (No. 16-111)

No. 16-111

OF THE CLERK

In the Supreme Court of the

MASTERPIECE CAKESHOP, LTD., ET AL., Petitioners,

Vv.

COLORADO CIVIL RIGHTS COMMISSION, ET AL.,

Respondents.

ON WRIT OF CERTIORARI TO THE

COLORADO COURT OF APPEALS

BRIEF OF AMICI CURIAE COLORADO ORGANIZATIONS

AND INDIVIDUALS IN SUPPORT OF RESPONDENTS

EVAN WOLFSON MELISSA HART

LINO S. LIPINSKY DE ORLOV Schaden Chair and

PETER Z, STOCKBURGER Professor of Law

Eric Y. Wu CRAIG J. KONNOTH

Dentons US LLP Associate Professor of Law

1400 Wewatta Street Counsel of Record

Suite 700 Scott SKINNER-THOMPSON

Denver, CO 80202-5548 Associate Professor of Law

University of Colorado

School of Law

425 Wolf Law Building, 401 UCB

Boulder, CO 80309-0401

(303) 735-6397

Craig.Konnoth@Colorado.edu

Counsel for Amici Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIBEG......................:cceceessseeeeeellll

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

SUMMARY OF ARGUMENT... sasinosinicl

ARGUMENT... _— ‘in

I.

CADA FULFILLS THE STATE’ Ss

COMPELLING INTEREST IN

PROTECTING THE RIGHTS OF

ALL ITS CITIZENS,

INCLUDING LGBT

CO!ORADANS, TO EQUAL

DIGNITY AND THE

OPPORTUNITY TO

PARTICIPATE IN THE PUBLIC

SPHERE BY PROTECTING

THEM AGAINST

DISCRIMINATION IN PUBLIC

ACCOMMODATIONS ... isan neva

A. LGBT Coloradans Aan

faced a history of

demeaning and

discriminatory treatment......... 4

B. The legislative record of

CADA demonstrates that it

was amended to address

this history of

discrimination.................... EO ]

i

TABLE OF CONTENTS

(continued)

Page

IL. AN EXPRESSIVE OR

RELIGIOUS EXCEPTION TO

CADA WOULD SEVERELY

UNDERMINE

ANTIDISCRIMINATION

PROTECTIONS AND SUBJECT

LGBT AND, MOST LIKELY,

OTHER COLORADANS TO

WIDESPREAD

DISCRIMINATION ........................44. 14

A. CADA’s protections reach

across a wide array of

public and commercial!

Qi ceticictncccimnocintvinistenesersees 15

B. An expressive or religious

exception would swee

broadly, harming LGBT

individuals and perhaps

members of other protected

classes as well....................000+ 18

C. CADA is vital to protect

LGBT Coloradans from

ongoing discrimination in

commercial settings................ 26

i TIED ciicsinee sochcienesehacéusbotstaniesetheatasnebiotacenteen 30

APPENDIX: LIST OF AMICI CURIAE......... App. 1

ill

TABLE OF AUTHORITIES

Cases

Arnold v. Anton Co-op. Ass'n,

293 P.3d 99 (Colo. Ct. App. 2011)............

Bob Jones Univ. v. United States,

GEE CEB. BFS CRED cviccesceinsnsstecrccesccssccesees

Bowers v. Hardwick,

SF TB, Be CD vse s screen sescezesevessscensccoces

Colo. Cross-Disability Coal. v. Taco Bell

Corp.,

184 F.R.D. 354 (D. Colo. 1999) ................

Colo. Cross-Disability Coal. v. Women’s

Health Care Assocs., P.C.,

No. 10-cv-01568-RPM, 2010 WL 4318845

CED. CRB SUR, BR, BD weve escceses ccesesesersenes

Creek Red Nation, LLC v. Jeffco Midget

Football Ass'n,

175 F. Supp. 3d 1290 (D. Colo. 2016)......

Etsitty v. Utah Transit Auth.,

502 F.3d 1215 (10th Cir. 2010)................

Evans v. Romer,

882 P.2d 1335 (Colo. 1994), aff'd, 517

REG LEE

Page(s)

lv

TABLE OF AUTHORITIES

(continued)

Page(s)

Hishon v. King & Spalding,

ne Oe dns cas sata eaeranseeedicdenl 24

Hurley v. Irish-Am. Gay, Lesbian and

Bisexual Grp. of Bos.,

te SA ESE eo BRET Riera I ers ESOS 20

Jones v, City of Moultrie,

ee i gic seeeeusavceas 23

King v. Governor of the State of N.-/.,

rouge ets be S| Sag ae ee eeerneeeres Seem 20

Kitchen v. Herbert,

766 F.3d 1108 C1Oth Cir. 2014) .....0ccceccosevcccesnseceses. g

Lawrence v. Texas,

I nn UU ac sameauacenbecondpenia i)

Lewits v. Strong,

No. 09-cv-02861-REB-KMT, 2010 WL

4318884 (D. Colo. Aug. 19, 2010)...................0..... 17

Loving v. Virginia,

te iia caecum edudasealeonaseaniels 25

Lucas v. Kmart Corp.,

No. 99-cv-01923-JLK, 2005 WL 1648182

a es SP EG SE bsciciscucntsiscdadncheskedoctantéestacs 17

Vv

TABLE OF AUTHORITIES

(continued)

Page(s)

Medina v. Income Support Div.,

S13 F.2e LIB1 CEG Cae. BOGGS) vn cicconcesccccssscesssccee 29

Newman v. Piggie Park Enters., Inc.,

Se Oe 24, 25

Norwood v. Harrison,

Se eS II oc cochieisnnceesnsadusuescbsiendineunsApietid 24

Obergefell v. Hodges,

Bs ie EE SD bicciccvecnnticsscssdnecaunseecincs 4,5, 14

Pleasant Grove City v. Summum,

es I an cab ciargthecinhictnnesmncedevatonsensl 19

Reeves v. Queen City Transp..,

10 F. Supp. 2d 1181 (D. Colo. 1998).................... 17

Romer v. Evans,

EF I i sities scenvcrccecasecesesisinses passim

Sch. Dist. No. 11-J v. Howell,

517 P.2d 422 (Colo. Ct. App. 1973)..........00.......02. 17

Shahar v. Bowers,

BES Fae Be Co BO CR. TID ois cecicivccnnsceswniccsccts 23

Smith v. Avanti,

249 F. Supp. 3d 1194 (D. Colo. 2017)................. 27

vl

TABLE OF AUTHORITIES

(continued)

United States v. Seeger,

I a as cen cciniennemnemenniaesdne comncenen 22

Walker v. Tex. Div., Sons of Confederate

Veterans, Inc.,

a visi tdcncnccetaintescisawesevasipeniebesse 19

Statutes

Colo. Rev. Stat. § 24-34-402............... pseusaniesaaasiias 8, 29

Rs CI te SIMI ccc ctnevenscsidnnsdonscaessceaumbi 16

Other Authorities

A Brief LGBT History of Colorado, Out

Front (Aug. 20, 2014),

https://www.outfrontmagazine.com/news/

colorado-lgbt-community/brief-lgbt-

REED Rec AE atfle ELISE eee Pre treme 5

Allison Karpyn & John Weidman, The Food

Trust, Special Report: The Need for More

Supermarkets in Colorado (2009),

http://www.coloradohealth.org/sites/defa

ult/files/documents/2017-

01/Food_Trust_Rpt-Colorado-

Special%20Report%20the%20Need%20fo

r%20More%20Supermarkets%20in%20C

Vil

TABLE OF AUTHORITIES

(continued)

Brief for Amicus Curiae National Bar

Association in Support of Respondents,

Romer v. Evans, 517 U.S. 620 (1996) (No.

EINE hanatcendsdhbedakseteninhiiientinentmimenniaagietpsioss

Colorado Civil Rights Commission, Colorado

Civil Rights Division, 2016 Annual

Report (2016),

https://drive.google.com/file/d/OBloMNU

eCI8FYQ21SNjdwTjhRRzg/view ...........-.-..

Colorado Civil Rights Commission, Colorado

Civil Rights Division, Annual Report

2014 (2014),

https://drive.google.com/file/d/0Bz-

k2zYFIBh6bUxwemlvUGh3VzQ/view.......

Colorado Department of Public Health and

Environment GIS, Primary Care Health

Professional Shortage Areas (HPSAs)

(2015),

https://www.colorado.gov/pacific/sites/def

ault/files/PCO_HPSA-primary-care-

Compendium of Legis. Hist. of SBO8-200

(2008 amendment to CADA),

http://scholar.law.colorado.edu/research-

(Seti elie dae St Ra Ei Set Pw ae

Page(s)

vill

TABLE OF AUTHORITIES

(continued)

Complaint, EEOC v. A&E Tire, Inc., No.

1:17-cv-02362-STV (D. Colo. Sept. 29,

Beach 2 ede AREA ai aD? DA ee

Coy Mathis, Charge No. P20130034X, Colo.

Div. of Civil Rights (2012)

(determination),

https://archive.org/details/7 16966-pdf-of-

oc cecomees

Gerald A. Gerash, On the Shoulders of the

Gay Coalition of Denver, in United We

Stand: The Story of Unity and the

Creation of The Center 3

EERE EY SRR eer

Glenda M. Russell, Voted Out: The

Psychological Consequences of Anti-Gay

BRE I RAs ee ne

Governor Signs Gay-Marriage Ban Among

Flock of Other Bills, Colo. Springs

eg eee

Letter from Michael J. Bowers to Jeff

Graham, Executive Director, Georgia

Equality, Inc. (Feb. 23, 2015),

https://drive.google.com/file/d/OB_KEK8-

LWmzhUjdmMIRHZOh2TEk/view .............

Page(s)

1x

TABLE OF AUTHORITIES

(continued)

Page(s)

Lisa Keen & Suzanne B. Goldberg,

Strangers to the Law: Gay People on

a iii nase sa ncunbamianegins¢ Gauiecnincanehasidowbewsinuty ce 6

Mark Harden, Cherry Creek Mortgage

Chairman Resigns as Company Changes

Same-Sex Benefits Policy, Denver Bus. J.

(Aug. 26, 2017),

https://www.bizjournals.com/denver/new

s/2017/08/26/cherry-creek-mortgage-

chairman-resigns-as-company.html.................... 28

Michael Brewer, Colorado’s Battle Over

Domestic Partnerships and Marriage

Equality in 2006, 4:1 J. GLBT Family

ee II coin incsnesnesunindaduataaniataiocscasdeesnedanien’ 8

Nondiscrimination in Health Programs and

Activities,

81 Fed. Reg. 31,376 (May 18, 2016)

(codified at 45 C.F.R. pt. 92) .................cccceccseneeees 29

One Colorado Education Fund, Invisible:

The State of LGBT Health in Colorado

(2012),

http://www.one-colorado.org/wp-

content/uploads/2012/01/OneColorado_H

eg SE | Ae 26

x

TABLE OF AUTHORITIES

(continued)

Page(s)

Respondent Colorado Civil Rights

Commission Brief,

Masterpiece Cakeshop, Lid. v. Colo. Civil

pe ey bh Lat 9

Sarah Netter, Colorado Catholic School

Boots Student with Lesbian Mothers,

ABC News (Mar. 9, 2010),

http://abenews.go.com/W N/colorado-

catholic-schoo]-kicks-student-lesbian-

mothers/story?7id=10043528..................-ccceceeeeeeees 22

Stephen Bransford, Gay Politics vs.

Colorado: The Inside Story of

Amnomtameent B CLGBED) osc ccccsccsesscsscossesssses seas sala uated 6

Susan Berry Casey, Appealing for Justice:

One Colorado Lawyer, Four Decades,

and the Landmark Gay Rights Case:

ROME U. TONG CHIP ccveivcivisiscetinescciesmsadbiee 6

Tak Landrock, Colorado State Patrol

Payouts Cost Taxpayers $2 Million in

20138, KDVR, Dec. 27, 2013,

http://kdvr.com/2013/12/27/colorado-

=,

INTEREST OF THE AMICI CURIAE

Amici include lesbian, gay, bisexual, or

transgender (LGBT) individuals resident in the State

of Colorado and LGBT membership organizations

based in Colorado that rely on the protections of the

Colorado Anti-Discrimination Act (CADA), Colo. Rev.

Stat. §§ 24-34-301 to -804, to ensure equal access to

basic commercial services. Amici also include

organizations and individuals that seek to address

the discrimination that LGBT Coloradans have faced,

and continue to face, on a daily basis.

Finally, amici include current and former

Colorado lawmakers who have drafted or supported

legislative initiatives pertaining to the rights of

LGBT Coloradans, including CADA’s provisions

protecting LGBT Coloradans. These include former

State Senator Jennifer Veiga and former State

Representative Joel Judd, who sponsored the

amendment to CADA that codified the protections

challenged here.!

1 Pursuant to Rule 37, this brief is filed with the written

consent of Respondents Craig and Mullins. Respondent

Colorado Civil Rights Commission and Petitioner have lodged

blanket consents for the filing of amicus briefs with this Court.

Counsel for a party did not author this brief in whole or in part,

and such counsel or a party did not make a monetary

contribution intended to fund the preparation or submission of

this brief. No person or entity, other than the amici, their

members, and their counsel, made a monetary contribution to

the preparation or submission of this brief.

-2.

SUMMARY OF ARGUMENT

CADA fulfills Colorado’s compelling interest in

protecting the rights of all its citizens, including

LGBT Coloradans, to participate with equal dignity

in the “transactions and endeavors that constitute

ordinary civic life in a free society.” Romer v. Evans,

517 U.S. 620, 631 (1996). Prohibited at various

points in Colorado’s history from engaging in

intimate conduct, from “securing protection

against ... injuries . . . [in] public-accommodations,”

and from marrying their partners of choice, LGBT

Coloradans were for decades treated as “stranger|s]

to [the] laws” of Colorado. Id. at 635. In the pitched,

public, state-wide battles that heralded each act of

stigmatization, LGBT Coloradans were accused of

being immoral and of committing sexual offenses.

These encounters left LGBT individuals vulnerable,

subject to discrimination and public scorn.

Faced with this ongoing history’ of

discrimination, Colorado legislators in 2008 sought to

protect LGBT individuals’ ability to fully participate

in the state’s commercial life. In so doing, they

carefully limited CADA to avoid overburdening

Coloradans’ First Amendment interests’ by

introducing exemptions from the law's reach.

CADA seeks to protect LGBT individuals from

the identical injuries that this Court recognized in

Romer as being “far reaching.” Id. at 627. The range

of transactions and activities in which LGBT

Coloradans are now protected by CADA are almost

identical to the “specific legal protections” that

Amendment 2 “nullifie[d],” including housing, real

-3-

estate, and other business transactions. /d. at 629.

Many of these services—including access to food and

basic health care—are in short supply in remote,

mountainous areas of the state. Further, there is

evidence that LGBT Coloradans face unique barriers

and continued discrimination in accessing these

essential services. Access-—-and discrimination—in

those circumstances does not simply determine

dignity and social acceptance, but can mark the line

between life and _ death. Under _ existing

interpretations of federal law, LGBT Coloradans lack

the explicit protections from most kinds of

discrimination that many other groups enjoy. LGBT

Coloradans are therefore completely reliant on CADA

to ensure this access.

An expression- or religion-based exception to

CADA would achieve at a retail level what

Amendment 2 sought to accomplish wholesale—

denying LGBT individuals equal social dignity. If

the baking of a wedding cake—over whose design and

message the couple would have the final say—could

somehow be construed as the baker’s First

Amendment-protected activity, then, as Colorado’s

history shows, stemming the tide of discrimination

against LGBT Coloradans would prove difficult.

Other vendors who provide essential services, often

through the written or spoken word, could seek

similar exemptions. Employers, likewise, could seek

to escape antidiscrimination strictures. Indeed, it is

hard to see why a First Amendment exemption to

discriminate against LGBT Coloradans would not

extend to other groups that consistently invoke

CADA for their protection.

i.

“[W]hen . . . sincere, personal opposition

becomes... law... it creates an exclusion that soon

demeans or stigmatizes those whose own liberty is

then denied.” Obergefell v. Hodges, 135 S. Ct. 2584,

2608 (2015). While all Coloradans are free to express

sincere opposition to any protected group, allowing

them to embed this opposition into a legal right to

exclude such minorities from commercial activities

would undermine the balance the legislative process

has struck, and would forever alter “the structure

and operation of modern antidiscrimination laws.”

Romer, 517 U.S. at 628.

ARGUMENT

!. CADA FULFILLS THE STATE’S

COMPELLING INTEREST IN

PROTECTING THE RIGHTS OF ALL

{TS CITIZENS, INCLUDING LGBT

COLORADANS, TO UAL DIGNITY

AND THE OPPORTUNITY TO

PARTICIPATE IN THE PUBLIC

SPHERE BY PROTECTING THEM

AGAINST DISCRIMINATION _ IN

PUBLIC ACCOMMODATIONS

A. LGBT Coloradans have faced a

history of demeaning and

discriminatory treatment

The quest for equal treatment of LGBT

individuals in Colorado has been long-running and

has faced persistent, often hostile, opposition. Over

the past 25 years, Colorado has enacted not one, but

two, citizen-initiated amendments to the Colorado

-5-

Constitution specifically designed to declare gay men

and lesbians “unequal to everyone else” and to “deem

[them] a stranger to its laws.” Romer, 517 U.S. at

635. The first, known as Amendment 2, worked a

“[s]}weeping and comprehensive” change in the status

of lesbian, gay, and bisexual individuals that placed

them, “by state decree . . . in a solitary class|.]” Jd. at

627. The second, known as Amendment 43, denied

Colorado’s gay and lesbian citizens “equal dignity in

the eyes of the law” by denying them the freedom to

marry. Obergefell, 135 S. Ct. at 2608. While these

two constitutional amendments garnered the most

attention in Colorado’s battle over the rights of LGBT

people, they are just two chapters in a much longer

story.

Until 1971, Colorado criminalized intimate

conduct between individuals of the same sex. “Gays

and lesbians lived hidden lives and in fear of

exposure that could, and did, result in loss of a job

and professional career—even eviction from one’s

home.” Gerald A. Gerash, On the Shoulders of the

Gay Coalition of Denver, in United We Stand: The

Story of Unity and the Creation of The Center 3, 3

(Phil Nash ed., 2016). Police raided homes of openly

gay men, imprisoned organizers of a prominent gay

rights organization, and confiscated the group’s

mailing lists. A Brief LGBT History of Colorado, Out

Front (Aug. 20, 2014).2 Even after the repeal of

Colorado’s antisodomy laws, gay people faced

2 https://www.outfrontmagazine.com/news/colorado-lgbt-comm

unity/brief-lgbt-history-colorado/.

-G.

significant hostility. When the Boulder, Colorado,

city council voted to prohibit employment

discrimination against gay men and lesbians in 1974,

voters withdrew those protections by ballot initiative.

See Lisa Keen & Suzanne B. Goldberg, Strangers to

the Law: Gay People on Trial 6 (2000).

In subsequent decades, the rights of LGBT

people rode “a political see-saw” in Colorado. Id.

While Boulder reinstated its antidiscrimination

provisions in 1987, and Denver adopted similar

measures in 1990, other cities rejected them. In

these battles, some opponents of equal rights for gay

people compared homosexuality with necrophilia and

bestiality, and argued that homosexuality would lead

to increased child molestation. See Susan Berry

Casey, Appealing for Justice: One Colorado Lawyer,

Four Decades, and the Landmark Gay Rights Case:

Romer v. Evans 196 (2016); Stephen Bransford, Gay

Politics vs. Colorado: The Inside Story of Amendment

2, at 21 (1994). By the time Amendment 2 was

proposed, gay men and lesbians felt “beaten up,

stigmatized, and more isolated than ever.” Casey,

supra, at 201. And even when some communities

decided to protect the rights of LGBT citizens to

participate fully in civic life, opponents responded

with animosity, Jeading the charge for passage of

Amendment 2. See Romer, 517 U.S. at 623.

The Amendment 2 campaign sought to demean

and humiliate LGBT Coloradans. Both in

mainstream media outlets, such as Newsweek and

National Public Radio, and through more targeted

means, proponents falsely claimed that gay men had

sex with minors, that many had more than 1,000

7.

partners, and that they consumed fecal material. See

generally Brief for Amicus Curiae National Bar

Association in Support of Respondents at 6, Romer,

517 U.S. 620 (No. 94-1039) [hereinafter Nat'l Bar

Ass’n Brief] (listing sources).

Throughout the campaign, LGBT Coloradans

“were subjected to constant scrutiny, anger and

vitriol, unfair accusations, and blatant distortions

about their lives.” Glenda M. Russell, Voted Out:

The Psychological Consequences of Anti-Gay Politics

3 (2000). Such invective was backed up by physical

aggression. Even as violence against gay people

decreased across the nation, Colorado saw an uptick.

Nat’l Bar Ass’n Brief at 7 (citation omitted).

Amendment 2, which “classifie[d] homosexuals not to

further a proper legislative end but to make them

unequal to everyone else,” passed with a comfortable

majority. Romer, 517 U.S. at 635.

Romer struck down Amendment 2 as a violation

of the Equal Protection Clause because it was born of

“a bare ... desire to harm a politically unpopular

group.” Jd. at 634 (citations omitted). But even as

Romer lay pending before the Court, prejudice

against Colorado’s LGBT community endured. In

1996, the Colorado legislature enacted a bill to

prohibit marriage between individuals of the same

sex. Governor Roy Romer vetoed the bill, but the

legislature passed it again in 1997, only to have it

vetoed once more. Governor Bill Owens signed yet a

third version into law in 2000. Governor Signs Gay-

Marriage Ban Among Flock of Other Bills, Colo.

Springs Gazette, May 28, 2000, at 2.

-8-

The following years saw additional challenges.

In 2003 and 2004, legislators proposed a civil union

bill to give same-sex couples a portion of the legal

protections afforded their heterosexual counterparts.

The bill faced harsh opposition and died in committee

both years. Michael Brewer, Colorado’s Battle Over

Domestic Partnerships and Marriage Equality in

2006, 4:1 J. GLBT Family Stud. 117, 118 (2008). In

2005 and 2006, Governor Owens vetoed proposed

employment discrimination protections for gay and

lesbian Coloradans. Jd. at 123. And in 2006, the

organizations behind Amendment 2 launched a new

initiative—this time to cement into the State’s

constitution the denial of same-sex couples’ freedom

to marry. Jd. at 118-19. Amendment 43, which

prevented the legislature from ending’ gay

Coloradans’ exclusion from marriage, passed by a

wide margin. /d. at 123.

Recognizing that it would be hard to obtain

their freedom to marry, gay rights advocates sought

to create family protections through state-level

domestic partnership status. Because the Governor

had previously vetoed similar protections for same-

sex couples, advocates placed a domestic partnership

proposal on the ballot. Jd. at 119. Even this limited

measure lost handily. Jd. at 123.

As this history suggests, legal protections for

gay and lesbian Coloradans were sorely needed and

hard won. In 2007, the Colorado legislature finally

passed a law prohibiting discrimination on the basis

of sexual orientation in employment. Colo. Rev. Stat.

§ 24-34-402. In 2008, as discussed further below,

CADA was amended to prohibit discrimination based

x,

on sexual orientation in public accommodations and

housing. In 2013, a civil union law provided some of

the tangible protections and responsibilities of

marriage, and, in 2014, following the Tenth Circuit’s

decision in Kitchen v. Herbert, 755 F.3d 1193 (10th

Cir. 2014), same-sex couples in Colorado finally

obtained equal freedom to marry.

B. The legislative record of CADA

demonstrates that it was

amended to address this history

of discrimination

1. As this Court has recognized, “times can

blind us to certain truths.” Lawrence v. Texas, 539

U.S. 558, 579 (2003). The history of CADA provides

an example of this reality.

Colorado has prohibited discrimination in public

accommodations since 1885. See generally Resp’t

Colo. Civil Rights Comm’n Br. 7-8 (describing

history). The law has been amended over time to add

certain protected characteristics as society gained an

understanding that discrimination on the basis of

those characteristics was invidious, destructive, and

without legitimate or rational purpose. But despite

the long history of discrimination and stigma

described above, sexual orientation was not included

until the law had been in place for well over a

century.

Colorado legislators sought for more than a

decade to add protections for LGBT individuals in

CADA, but their efforts were met with repeated

failure. Compendium of Legis. Hist. of SBO8-200

(2008 amendment to CADA) at 90-91 [hereinafter

-10-

Leg. Record].4 Finally, in 2008, following extensive

evidentiary hearings and debate, the Colorado

General Assembly made clear that sexual orientation

discrimination, like other enumerated forms of

exclusion and disadvantage, should be and was

prohibited in public accommodations and housing.

The purpose of the 2008 amendment was simple:

as Representative Joel Judd, its chief sponsor in the

Colorado House, explained, by extending protections

to LGBT people in ‘places’ of public

accommodation . . . [that] range from . . . barbershops,

to hotels, to hospitals, [to] . . . funeral homes,” the

law ensures that LGBT individuals will “live in

dignity and will ultimately die in dignity.” Jd. at 112.

Many opponents refused to acknowledge that

sexual orientation discrimination is a serious

problem, however, let alone something to be

prevented. One legislator who opposed the bill

suggested, ostensibly in jest, that discrimination

against short people was far more pervasive and

serious than was discrimination against gay people.

Id. at 76-78. Another suggested that discriminating

against gay people in housing was the same as

refusing to rent to a “party|ing] college freshman.” /d.

at 131. Legislators objected to analogizing

discrimination based on race to that based on

homosexuality—‘“the science is still out on that],]”

one claimed. Jd. at 148. Opponents argued that the

measure was about nothing more than putting the

“feelings” of LGBT people above the rights of others

3 http://scholar.law.colorado.edu/research-data/8/.

a

to decide to whom they want to rent apartments. Jd.

at 214.

Supporters of the legislation countered that the

legislation fulfilled CADA’s longstanding central

purpose: protecting all Coloradans’ ability to engage

in “transactions and endeavors that constitute

ordinary civic life in a free society.” Romer, 517

U.S. at 631. As Mark Ferrandino, Colorado’s first

openly gay male legislator, explained, this

amendment was about the State’s compelling interest

in assuring all people the ability to find housing, to

serve on a jury without discrimination, and to engage

in the many other fundamentals of civic and

commercial life. Leg. Record at 272-73. And, these

legislators noted, Colorado had a compelling interest

in enacting a law to end this discrimination,

alongside others, because discrimination on the basis

of sexual orientation was, and is, serious and

ongoing.

In documenting the need for this protection,

legislators relied in part on their own experiences in

Colorado. Senator Chris Romer, the son of former

Governor Roy Romer, described “how painful” it was

for a former staffer of his father “to explain to people

what it means to be afraid and to be gay” after

Amendment 2 passed. Jd. at 78-79. Another

legislator explained how his son, a prosecutor, left

Colorado for Oregon, because he found Colorado to be

hostile to gay people. He concluded, “I don’t have

formal statistics, I just have one, and the one is my

son. He was uncomfortable in Colorado.” Jd. at 88.

Yet another representative explained that what

motivated her was the need to ensure “basic human

-12-

decency,” to guarantee that the housing and health

care needs of her sister, her partner, and their three

children were properly satisfied. Jd. at 222-23.

Witnesses also testified to the prevalence of

discrimination on the basis of sexual orientation. A

representative from the Anti-Defamation League

said that its office received calls about individuals

being denied housing because of their sexual

orientation. Jd. at 42. The director of the LGBT

Center reported calls from people who had heard

doctors in emergency rooms suggesting that they did

not want to treat gay patients because of their sexual

orientation. Jd. at 52.

2. In deliberating on the addition of sexual

orientation to CADA, legislators were careful to

consider possible effects on speech and religion. The

question presented by this case was debated in the

hearings. One witness testified about his concern

that religious people who run businesses would be

required to serve gay people despite their “personal

conscience.” Jd. at 25-27. In response, the law’s

supporters noted that, by prohibiting discrimination

based on sex, race, or creed, CADA already

considered and rejected demands by those who elect

to run a business for unfettered license to

discriminate. Id. at 155-56.

As legislators explained, CADA seeks to strike

the right balance between the desire of some

individuals to discriminate, whatever their reason,

and “the need for individuals to be able to acquire

acceptable housing .. . to raise a family,” id. at 127,

or to access and participate in the marketplace

without injury or insult. That familiar balance,

a.

struck again and again over decades of civil mghts

legislation, one witness noted, separated “private

organizations” that can “choose to exclude people

based on their own creed and practices” from those in

the commercial or “public sphere,” such as “housing

fand] education.” Jd. at 58. Accordingly, as one

legislator observed, “[ijf you choose to go into the

world of commerce and offer your services to the

general public, then, at that point, you’ve given up

the ability to draw a line on the basis of race, on the

basis of religion, or on the basis of sexual preference.”

Id. at 197.

Even while defending the essential purposes

that CADA served, legislators were eager to listen to,

negotiate with, and accommodate religious interests.

As Senator Jennifer Veiga, who sponsored the bill in

the Senate, noted during the hearings, the proposal

was amended to address the Catholic Church’s one

expressed concern: a provision concerning

discrimination based on religion that the Church

perceived as troublesome and duplicative. Jd. at 40,

63-64, 71, 107. The legislature also amended the bill

to allow restrictive covenants on cemetery plots to

respect religious preferences. Jd. at 62. And they

expanded the exemption from CADA beyond just

churches, synagogues, and mosques to include any

“other place that is principally used for religious

purposes,” so that religious camps, among other

entities, would not be subject to the law. /d. at 2@"

62.

Notably, the substantial majority of the

testimony from religious organizations during the

debate over amending CADA was supportive of

ite.

adding protections against discrimination on the

basis of sexual orientation. E.g., id. at 55-56, 176-79.

As a Methodist minister, whose own congregation did

not ordain gays and lesbians, explained, a “bill that

protects gay and lesbian people from discrimination”

in public accommodations helps Coloradans “rise to a

higher standard from that of dehumanizing our

fellow human beings.” Id. at 56-57.

The amendment to CADA to include protections

based on sexual orientation was the culmination of a

“deliberative process” in which “people t[foojk[ |

seriously questions that they may not have even

regarded as questions before.” Obergefell, 135 S. Ct.

at. 2625 (Roberts, C.J., dissenting). The result of the

careful democratic balance thus achieved should not

be overridden.

Il. AN EXPRESSIVE OR RELIGIOUS

EXCEPTION TO CADA WOULD

SEVERELY UNDERMINE

ANTIDISCRIMINATION

PROTECTIONS AND SUBJECT LGBT

AND, MOST LIKELY, OTHER

COLORADANS TO WIDESPREAD

DISCRIMINATION

A novel expressive or religious exception to

CADA would swallow the rule against discrimination

that the law embodies, and mark a departure from

the respect courts have given such laws over decades.

CADA’s protections span a vast array of services,

through which LGBT Coloradans access basic needs,

such as food, shelter, and health care. Weakening

these protections invites would-be discriminators to

-15-

“inflict; ] on them immediate, continuing, and real

injuries.” Romer, 517 U.S. at 635. Moreover,

creating an exemption to permit discrimination on

the basis of sexual orientation would either allow the

same carve-out to discriminate on other bases (e.g.,

gender, race, or even religion), or would

impermissibly single out one class of citizens as

“unequal to everyone else.” Jd. And although some

assert that discrimination against LGBT citizens is

not a “real concern,” Pet’rs’ Br. 52, Colorado’s

experience—and our nation’s broader history—

demonstrates that it is. LGBT people have been

singled out for unequal treatment in critical contexts,

from health care to housing to employment and, of

course, to public accommodations.

A. CADA’s protections reach across

a wide array of public and

commercial contexts

CADA’s protections are nearly identical to the

municipal protections that triggered the passage of

Amendment 2. See Romer, 517 U.S. at 623-24. The

list of “persons or entities subject to a duty not to

discriminate . . . goes well beyond the entities covered

by the coiamon law.” Jd. at 628. The law prohibits

“any place of business engaged in any sales to the

public . . . [or] offering services, facilities, privileges,

advantages, or accommodations to the public” from

discriminating against protected classes of

individuals. To be clear about the breadth of

protection the legislature intended to provide, CADA

non-exhaustively lists several such entities as

examples:

-16-

any business offering wholesale or retail

sales to the public; any place to eat,

drink, sleep, or rest, or any combination

thereof; any sporting or recreational

area and facility; any public

transportation facility; a barber shop,

bathhouse, swimming pool, bath, steam

or massage parlor, gymnasium, or other

establishment conducted to serve the

health, appearance, oor physical

condition of a person; a campsite or

trailer camp; a dispensary, clinic,

hospital, convalescent home, or other

institution for the sick, ailing, aged, or

infirm; a mortuary, undertaking parlor,

or cemetery; an educational institution;

or any public building, park, arena,

theater, hall, auditorium, museum,

library, exhibit, or public facility of any

kind whether indoor or outdoor.

Colo. Rev. Stat. § 24-34-601.

Fulfilling CADA’s intent to eliminate invidious

discrimination in commercial! life, vulnerable groups

have sought the protection of CADA for a wide

variety of purposes. Children have sought access to

recreational facilities to which they were allegedly

denied access because of their race. Creek Red

Nation, LLC v. Jeffco Midget Football Ass'n, 175

F. Supp. 3d 1290, 1292-93 (D. Colo. 2016). Women

have sought access to local stores to purchase basic

-17-

necessities. Arnold v. Anton Co-op. Ass'n, 293 P.3d

99, 102 (Colo. Ct. App. 2011). Disabled individuals

have sought access to major restaurant and retail

chains. Lucas v. Kmart Corp., No. 99-cv-01923-JLK,

2005 WL 1648182, at *1 (D. Colo. July 13, 2005);

Colo. Cross-Disability Coal. v. Taco Bell Corp., 184

F.R.D. 354, 355-56 (D. Colo. 1999). Native

Americans have used CADA to challenge school

regulations that burdened their religious beliefs.

Sch. Dist. No. 11-J v. Howell, 517 P.2d 422, 423

(Colo. Ct. App. 1973). Other plaintiffs have turned to

CADA to combat’ discrimination in _ public

transportation, Reeves v. Queen City Transp., 10 F.

Supp. 2d 1181, 1182-83 (D. Colo. 1998); in obtaining

cellular telephones, Lewis v. Strong, No. 09-cv-02861-

REB-KMT, 2010 WL 4318884, at *1, 5 (D. Colo. Aug.

19, 2010); and in obtaining access to essential

medical care. Colo. Cross-Disability Coal. v. Women’s

Health Care Assocs., P.C., No. 10-cv-01568-RPM,

2010 WL 4318845, at *1-2 (D. Colo. Oct. 25, 2010). In

short, CADA is an essential torl to protect equal

access to a vast array of public accommodations.

Access to these accommodations can be a matter

of life and death for many Coloradans. Although

most of Colorado’s citizens live in or near the Denver

metro area, the vast reaches of the State are rural,

and citizens in those areas frequently lack choice as

to where they can receive essential services. Of

Colorado’s 64 counties, 51 are wholly or partially

designated as Primary Care Health Professional

Shortage Areas by the federal government. Colorado

Department of Public Health and Environment GIS,

Primary Care Health Professional Shortage Areas

-18-

(HPSAs) (2015).* Similarly, a report found that

“lajecess to supermarkets is a problem in many

Colorado neighborhoods but exceedingly so in lower-

income, inner-city and rural communities where the

incidence of diet-related disease is highest.” Allison

Karpyn & John Weidman, The Food Trust, Special

Report: The Need for More Supermarkets in Colorado

at 10 (2009).5 CADA ensures access to stores that do

exist in such areas. Cf. Anton Co-op. Ass’n, 293 P.3d

at 102 (CADA case in which plaintiff noted that the

Association’s store “is the only place within 30 miles

to purchase many necessities”). Colorado's

geography makes secking alternative services in the

Rockies even harder. Any exception to CADA could

transform a shortage into a complete deprivation of

basic services for vulnerable minorities.

B. An expressive or religious

exception would sweep broadly,

harming LGBT individuals and

perhaps members of other

protected classes as well

The implications of a carve-out from CADA

based on the kind of compelled speech or free exercise

claim put forward in this case would be far-reaching.

If a merchant could refuse service in defiance of a

civil rights law simply by asserting that its

¢ https://www.colorado.gov/pacific/sites/default/files/PCO_HPSA

-primary-care-map.pdf.

® http://www.coloradohealth.org/sites/default/files/documents/20

17-01/Food_Trust_Rpt-Colorado-Special%20Report%20the%20

Need%20for%20More%20Supermarkets%20in%20CO pdf.

-19-

expressive or religious beliefs are implicated by the

identity of the customer or the customer’s exercise of

his or her rights, then nearly any merchant could

claim an expressive or religious license to evade the

law. There is no principled way to limit such an

exemption to wedding cake bakers or florists, or to

discrimination based only on sexual orientation. The

First Amendment requires no such exemption from

generally applicable, content neutral

antidiscrimination laws.

1. Even assuming that cakes have an

expressive function, they hardly embody the

merchant's message. Historically and culturally, the

message on the wedding cake is that of the married

couple; the design and any text “are often closely

identified in the public mind with the [couple],”

rather than with the baker; and the customer can

“maintain[ ] direct control” and “final approval

authority” over the product. Walker v. Tex. Div.,

Sons of Confederate Veterans, Inc., 135 S. Ct. 2239,

2248-49 (2015) (quoting Pleasant Grove City v.

Summum, 555 U.S. 460, 472, 473 (2009)) (identifying

factors that determine to whom speech should be

attributed). Similarly, no reasonable person imputes

the message on a T-shirt to the weaver, the message

on a wedding photograph to the photographer, or the

billboard message or campaign ad to the advertising

company. These messages are rightly imputed to the

person with control over the message—the customer

who paid for them. Indeed, why would a customer

-20-

pay a merchant to spread the merchant’s message?®

If a new carve-out were based on a business

owner’s purported expressive interest, then any

vendor who characterizes his or her work as

including an expressive component could assert a

right to refuse service. If this kind of discrimination

were permitted because of a carve-out to CADA, then

LGBT individuals could be denied even essential

services. For example, medical treatment frequently

requires verbal interaction between doctor and

patient. Medical professionals have been held to

engage in “speech” for the purposes of the First

Amendment even when providing treatment. King v.

Governor of the State of N.J., 767 F.3d 216, 225 (3d

Cir. 2014). Funeral parlors might similarly decline

to provide services for same-sex couples, on the

grounds that funerals, like weddings, have

expressive components.

Further, such exemptions would create

challenges for the LGBT groups and organizations

that have been essential for fostering community and

mutual support for individuals who frequently face

familial rejection. For example, amicus Denver Gay

6 So understood, this case is distinct from Hurley v. Irish-

American Gay, Lesbian and Bisexual Group of Boston, 515 U.S.

557 (1995), wherein the organizers of a privately arranged

parade—an inherently politically expressive activity—were

required by the state to include a group in the parade that

would alter their message. Jd. at 559. Importantly, it was the

parade organizer’s message that controlled, not the message

from the outside group. Z/d. at 568-70. Here, the merchant is

not being forced to alter his speech, but is simply facilitating

that of yet another customer.

-21-

Men’s Chorus, with nearly 150 members, might be

denied access to the few venues that can hold a group

its size if the owners of those venues claimed that the

Chorus’s pro-LGBT message would be attributed to

them and thus excused their compliance with the law.

Without a principled limit, exemptions created

to CADA could easily be asserted for other

protections embodied in state law. Just as a vendor

here seeks an exemption to laws that prohibit

discrimination against customers, employers may

seek exemptions from state laws that prohibit

discrimination against employees, arguing that the

employers’ religious or expressive rights entitle them

to distance themselves from members of the LGBT

community.

2. A commercial carve-out in the name of

religious beliefs would have similarly damaging

effects. While this case involves a wedding vendor, it

is not difficult to imagine the landlord who refuses to

rent to a gay couple because their marriage or

cohabitation is contrary to his religious beliefs. Cf.

Evans v. Romer, 882 P.2d 1335, 1342 (Colo. 1994),

aff'd, 517 U.S. 620 (1996) (proponents of Amendment

2 relied on cases holding that laws prohibiting

marital discrimination in rentals burdened free

exercise, even though those cases upheld the validity

of the regulations as neutral principles of general

applicability).

The impact of a religious carve-out could also

cause significant harm to the children or parents of

same-sex couples. In 2010, a preschool student in

Boulder, Colorado was denied enrollment for

kindergarten because the school learned the child’s

29.

parents were a lesbian couple. Sarah Netter,

Colorado Catholic School Boots Student with Lesbian

Mothers, ABC News (Mar. 9, 2010).’ If teachers or

principals in schools covered by CADA were

permitted a religious exemption because of their

personal beliefs, the line the law draws between

religious institutions and those that do not serve a

primarily religious purpose would be eviscerated.

The potential harm to children, to parents secking

care in nursing homes, and to others associated with

same-sex couples, in addition to the couples

themselves, could be significant.

Indeed, a religious carve-out in the case now

before the Court would raise additional concerns

because courts are generally reluctant to question

whether a particular asserted belief is consistent

with a religion’s other precepts or with the commonly

known beliefs of a particular religion. See, e.g.,

United States v. Seeger, 380 U.S. 163, 185 (1965) (the

threshold question of whether a belief is “truly held”

is a question of fact). Thus, while some

businesspeople seeking to discriminate may harbor a

genuine religious objection to married same-sex

couples, others who seek to engage in invidious

discrimination may use the religious carve-out as an

opportunity to do so regardless of their actual

religious convictions.

3. Equally troubling, there is no principled way

to allow an exception for sexual orientation but not

7 http://abcnews.go.com/W N/colorado-catholic-school-kicks-stude

nt-lesbian-mothers/story?id=10043528.

-23-

for other characteristics protected under the same

law. If commercial businesses can claim an

expressive exception to CADA for participation in a

wedding between two people of the same sex, a

business that objected to a marriage between people

of two different races, or two different religions, may

also claim such an exception.

Even former Georgia Attorney General Michael

Bowers—hardly a radical] advocate of the equal rights

of gay people, see Bowers v. Hardwick, 478 U.S. 186

(1986); Shahar v. Bowers, 114 F.3d 1097 (11th Cir.

1997)—has publicly declared that laws creating

sweeping exceptions to non-discrimination statutes

for those who do not want to comply in the name of

religion are “unequivocally an _ excuse to

discriminate.” Letter from Michael J. Bowers to Jeff

Graham, Executive Director, Georgia Equality, Inc.

at 6 (Feb. 23, 2015).* If an exemption were allowed,

Bowers asserted, “there is no limit to the

discrimination and disruption that could be brought

about in the name of religious freedom.” /d. at 3.

Bowers, like many others, has recognized that

“permitting citizens to opt out of laws because of a so-

called burden on the exercise of religion in effect

‘would permit every citizen to become a law unto

himself.” Jd. at 6 (quoting Jones v. City of Moultrie,

27 S.E.2d 39, 42 (Ga. 1943)). “Allowing each person

to become a law unto his or herself,” in turn,

“destroys uniformity to the law and creates mass

8 https://drive.google.com/file/d/OB_KEK8-LWmzhUjdmMIRHZOh

2TEk/view.

24.

uncertainty,” a can of worms that would threaten our

very democracy. Jd. As Bowers concluded, “[t]his.. .

is not about gay marriage, or contraception, or even

so-called ‘religious freedom. It is more important

than all of these, because it ultimately involves the

rule of law.” Jd. at 7.

Accordingly, this Court has consistently rejected

attempts to undermine neutrailly applicable

antidiscrimination laws based on the putative

expressive or religious interests of those who seek to

discriminate. For example, in Hishon v. King &

Spalding, 467 U.S. 69 (1984), this Court rejected the

argument that forcing a law firm to comply with Title

VII's prohibition on gender discrimination infringed

on the firm partnership's First Amendment freedom

of association. Jd. at 78-79. While recognizing that

lawyers’ work involves “a distinctive contribution .. .

to the ideas and beliefs of our society,” the Court

concluded, as it had in other contexts, that

“invidious private discrimination may be

characterized as a form of exercising freedom of

association protected by the First Amendment, but it

has never been accorded affirmative constitutional

protections.” Jd. at 78 (quoting Norwood v. Harrison,

413 U.S. 455, 470 (1973)).

Similarly, in Newman ov. Piggie Park

Enterprises, Inc., 390 U.S. 400 (1968), owners of

drive-in restaurants argued that they should be

exempt from Title II of the Civil Rights Act of 1964

because, by mandating that they not discriminate

against customers based on race, the law infringed on

their free exercise of religion. Jd. at 400. In

awarding attorneys fees to the plaintiffs, the

-25-

Supreme Court characterized the merchant’s free

exercise argument as “patently frivolous.” Jd. at 402

n.5; see also Bob Jones Univ. v. United States, 461

U.S. 574, 580 (1983) (“The sponsors of the University

genuinely believe that the Bible forbids interracial

dating and marriage. To effectuate these views,

Negroes were completely excluded until 1971.”);

Loving v. Virginia, 388 U.S. 1, 3 (1967).

In its amicus brief, the federal government

seeks to limit the damage to civil rights laws that a

carve-out here could unleash by suggesting that, at

least in the case of race, antidiscrimination laws

“may survive heightened First Amendment scrutiny”

because racial bias is “a familiar and recurring evil’

that poses ‘unique historical, constitutional, and

institutional concerns.” United States Br. at 32

(emphasis added). It argues that, by contrast, anti-

gay discrimination is tolerable and that the Colorado

legislature’s considered decision to include a

prohibition of anti-gay discrimination alongside other

prohibited bases somehow does “not advance[ | a

sufficient state interest.” Id. at 33. The

government’s position is belied by the long history of

anti-gay discrimination, the deliberate inclusion of

LGBT protections in CADA, and the importance of

access to vital services, including participation in the

marketplace, which all demonstrate that the

Colorado legislature acted with a compelling and

sufficient interest. The government’s argument

taken to its logical extreme would mark LGBT

Coloradans as uniquely underserving of the

protections that the legislature has deemed

appropriate for similarly vulnerable groups. The

-26-

damage that would flow from a _ license to

discriminate here is a can of worms that should not

be opened.

C. CADA is vital to protect LGBT

Coloradans from ongoing

discrimination in commercial

settings

The compelling need for CADA’s protections is

not theoretical. It is real. LGBT Coloradans require

access to the same services and opportunities as

other Coloradans. CADA is an important measure

for ensuring equal access. The need for CADA’s

protections is demonstrated by the sad reality that

LGBT Coloradans still suffer discrimination that

endangers access to these critical resources. A recent

report on LGBT health care in Colorado revealed

that 21% of health care providers refused to provide

services to LGBT people. One Colorado Education

Fund, Invisible: The State of LGBT Health in

Colorado 9 (2012).9 Among LGBT patients, 55%

feared they would be treated differently if their

provider found they were LGBT. Jd. Another 28%

reported that their sexual orientation stopped them

from seeking health services. Jd. Only 59% are very

open about sexual orientation with their medical

providers. /d. at 11.

Statistics from the Colorado Human Rights

Commission tell a similar story. Since 2008, when

8 http://www.one-colorado.org/wp-content/uploads/2012/01/One

Colorado HealthSurveyResults.pdf

«27.

the Commission began collecting data about

discrimination based on sexual orientation, there has

been a regular uptick in complaints, from 23 in 2007-

08, to 82 in 2015-16. Colorado Civil Rights

Commission, Colorado Civil Rights Division, 2016

Annual Report 9 (2016); 1° Colorado Civil Rights

Commission, Colorado Civil Rights Division, Annual

Report 2014 5 (2014).?!

Those statistics find even greater meaning in

the stories of LGBT people around Colorado who

have faced recent discrimination:

e In 2015, Tonya Smith and her wife,

Rachel, were looking for an apartment to rent after

their landlord sold the home in which they were

living. They had a difficult time finding something in

their price range. When they found a promising unit,

the potential landlord asked invasive questions and

told the couple at the last minute that she would not

rent to them because of their “unique relationship.”

Smith v. Avanti, 249 F. Supp. 3d 1194, 1197-98, 1201

(D. Colo. 2017). Tonya and Rachel ended up having

to get rid of many of their belongings as they were

unable to find another residence on short notice. id.

at 1198.

e In 2017, Cherry Creek Mortgage Company,

Colorado’s largest residential mortgage firm, was

sued by a married lesbian couple because the firm

declined to provide them with the same health care

10 https://drive.google.com/file/d/OBloMNUVeCI8FYQ21SNjdwT)

hRRzg/view.

11 https://drive.google.com/file/d/OBz-k2zYFIBh6bUxwemlvUG

h3VzQ/view.

-28-

coverage that it provided to different-sex married

couples. The company changed its policy to provide

equal treatment to its gay employees only after

facing litigation. Mark Harden, Cherry Creek

Mortgage Chairman Resigns as Company Changes

Same-Sex Benefits Policy, Denver Bus. J. (Aug. 26,

2017).}2

e In 2012, Coy Mathis, a 6-year-old first

grade student who is a transgender girl, was denied

use of the girls’ restroom at her elementary school.

The Colorado Civil Rights Commission found that the

school had “forced her to disengage from her group of

friends” and “tasked [the 6-year-old] with the burden

of having to plan her restroom visits to ensure that

she has sufficient time to get to one of the approved

restrooms.” Coy Mathis, Charge No. P20130034X,

Colo. Div. of Civil Rights, 11 (2012) (determination).'*

e In the fall of 2017, the Equal Employment

Opportunity Commission found sufficient evidence

that a Denver tire company refused to hire a

transgender man to support a lawsuit against the

company under Title VII, and thereafter filed suit.

Complaint at 2-3, EEOC v. A&E Tire, Inc., No. 1:17-

cv-02362-STV (D. Colo. Sept. 29, 2017). The

applicant allegedly had been told that he “had the job

so Jong as he could pass all of the screening process.

Id. at 33. When he acknowledged in paperwork that

he had * een born female, the manager hired someone

else. Id. at 42-55.

12 https://www. bizjournals.com/denver/news/2017/08/26/cherry-

creek-mortgage-chairman-resigns-as-company.html.

‘3 https://archive.org/details/716966-pdf-of-coy-mathis-ruling.

-29.-

e In 2012, two different employees of the

Colorado State Patrol received settlements from the

agency as a result of their claims that they were

discriminated against on the job because of their

sexual orientation. Tak Landrock, Colorado State

Patrol Payouts Cost Taxpayers $2 Million in 2013,

KDVR (Dec. 27, 2013).14

Of course, experience teaches that, for every

instance of discrimination such as the above, there

are many more that go unreported.

Importantly, CADA and its analogous state

protections in the employment context, Colo. Rev.

Stat. § 24-34-402, currently provide the only reliable,

robust, and explicit recourse for these and other

LGBT Coloradans. For instance, federal protections

are frequently interpreted not to include LGBT

individuals. To take one example, Section 1557 of

the Affordable Care Act, prohibits discrimination in

health care settings based on race, sex, and other

characteristics. But the federal government has

stated that sexual orientation is not covered.

Nondiscrimination in Health Programs and

Activities, 81 Fed. Reg. 31,376, 31,390 (May 18, 2016)

(codified at 45 C.F.R. pt. 92). And the Tenth Circuit

Court of Appeals has refused to interpret Title VII to

include protections for members of the LGBT

community. See Etsitty v. Utah Transit Auth., 502

F.3d 1215, 1222 (10th Cir. 2010) (Title VII does not

protect transgender individuals); Medina v. Income

14 http://kdvr.com/201 3/12/27/colorado-state-patrols-payout-cost-

taxpayers-2-million/.

-30-

Support Div., 413 F.3d 1131, 1135 (10th Cir. 2005)

(“Title VII’s protections ... do not extend to

harassment due to a person’s sexuality.”). Granting

would-be discriminators a license to discriminate in

defiance of CADA risks undoing the protections

Colorado has put in place to assure LGBT people,

their families, and others, equal opportunity to

participate in and contribute to the marketplace and

other important areas of life.

. * * *

Colorado has a compelling interest in protecting

the rights of all of its citizens. LGBT Coloradans

have the same right to dignity and participation in

the public sphere that CADA assures to all other

citizens of the State. Creating a carve-out to permit

discrimination against LGBT people would deny

them that essential dignity, and threaten the civil

rights laws themselves.

CONCLUSION

The decision of the Colorado Court of Appeals

should be affirmed.

a.

Respectfully submitted,

EVAN WOLFSON MELISSA HART

LINO S. LIPINSKY DE ORLOV Schaden Chair and

PETER Z. STOCKBURGER Professor of Law

ErRIc Y. Wu CRAIG J. KONNOTH

Dentons US LLP Associate Professor of Law

1400 Wewatta Street Counsel of Record

Suite 700 Scott SKINNER-THOMPSON

Denver, CO 80202-5548 Associate Professor of Law

University of Colorado

School of Law

425 Wolf Law Building, 401 UCB

Boulder, CO 80309-0401

(303) 735-6397

Craig.Konnoth@Colorado.edu

Counsel for Amici Curiae

OCTOBER 30, 2017

APPENDIX

- App. 1 -

APPENDIX: LIST OF AMICI CURIAE

Clemmie Engle is a retired attorney who formerly

worked at the Colorado Attorney General’s Office.

Daneya Esgar has served two terms in the Colorado

House of Representatives. She works with the House

leadership team as the Majority Caucus Chair. She is

also the Chair of the Capital Development

Committee and Vice-Chair of the House Health,

Insurance, and Environment Committee. She sits on

the House Agriculture, Livestock, and Natural

Resource Committee, as well as the House

Transportation and Energy Committee.

Mark Ferrandino is the Chief Financial Officer for

the Denver Public Schools and, until January 2015,

was speaker of the Colorado House of

Representatives. Previously, he was a senior budget

analyst for the Colorado Department of Health Care

Policy and Financing under Governor Bill Owens; a

program analyst for the United States Department of

Justice, Office of the Inspector General; and a policy

analyst for the White House Office of Management

and Budget under Presidents Bill Clinton and George

W. Bush.

Lucia Guzman is the Minority Leader in the

Colorado Senate. Appointed to the Colorado Senate

in May 2010, she represents Senate District 34 in

Denver.

-App. 2-

Leslie Herod is a member of the Colorado House of

Representatives representing District 8.

Joel Judd is an attorney who served in the Colorado

State Legislature from 2003 to 2010, chairing the

House Finance Committee from 2007 to 2010.

Dominick Moreno is the Assistant Majority Leader

in the State Senate. He also serves on the Joint

Budget Committee. He represented the 32nd District

in the Colorado House of Representatives from 2012

to 2016, before being elected to the Colorado State

Senate in 2016.

Paul Rosenthal is a community activist, teacher,

and politician who was elected in 2012 to serve in the

Colorado House of Representatives for House District

9.

Dr. Glenda Russell is a teacher and licensed

psychologist in the state of Colorado. She has a Ph.D.

degree in Clinical Psychology from the University of

Colorado and an internship at the Neuropsychiatric

Institute at UCLA Health Sciences Center.

Pat Steadman is an attorney, former legislator, and

former lobbyist. He was appointed to the Colorado

Senate in May 2009. He represented Senate District

31 from 2009 to 2017.

-App. 3-

Jessie Uliberri served four years in the Colorado

Senate representing District 21 in Adams County.

He is Vice President of Impact and External Affairs

at Wellstone.

Jennifer Veiga is an attorney and a former

Colorado legislator. First elected to the Colorado

House of Representatives in 1996, Veiga was

appointed to the Colorado Senate in 2003 and

subsequently elected to full terms in 2004 and 2008.

She represented Senate District 31.

Center for Health Progress creates opportunities

and eliminates barriers to health equity for

Coloradans.

Colorado Ethics Watch is a Colorado nonprofit

corporation devoted to using legal tools to promote

ethics and transparency in government.

The Colorado Health Foundation is the state’s

largest private foundation and is dedicated to

grantmaking, advocacy, and _ private _ sector

partnerships that advance the Foundation’s mission

of improving the health of Coloradans.

The Colorado Lesbian Gay Bisexual Trans-

gender (“LGBT”) Bar Association is a voluntary

professional association of gay, lesbian, bisexual and

transgender attorneys, judges, paralegals, law

students, and allies who provide a LGBT presence

within Colorado’s legal community.

-App. 4-

The Denver Gay & Lesbian Flag Football

League fosters the community through sport and

promotes positive social and athletic enjoyment of

flag football among the gay, lesbian, bisexual, and

transgender community, as well as our straight allies

living in the greater Denver area.

EBS Support Services, LLC works to advance

social equity by supporting nonprofit organizations

and individuals that use technology and media to

build an educated and engaged public.

Gender Identity Center of Colorado provides

support to anyone gender variant in their gender

identity and expression, with resources available to

anyone, male/female/other, who can benefit from its

services or resources, including spouses, significant

others, parents, and _ siblings. It is also an

informational and educational resource to the

community at large.

The GLBT Community Center of Colorado

engages, empowers, enriches, and advances the gay,

lesbian, bisexual, and transgender community of

Colorado by ensuring that every member of the

community has access to the programs, services, and

resources they need to live happy, healthy, and

productive lives.

The Interfaith Alliance of Colorado brings people

together from multiple faith traditions to drive social

change.

-App. 5-

NARAL Pro-Choice Colorado develops and

sustains a constituency that uses the political process

to guarantee every woman the right to make

personal decisions regarding the full range of

reproductive health choices, including preventing

unintended pregnancies, bearing healthy children,

and choosing legal abortion.

New Era Colorado reinvents politics for young

people, mobilizing and empowering a new generation

to participate in our democracy to make Colorado a

better place for everyone.

Northern Colorado Equality seeks to enhance the

well-being of the LGBT+ community through

activities, programs, services, and education, thus

empowering our members and allies.

One Colorado is the state’s leading advocacy

organization dedicated to advancing equality for

lesbian, gay, bisexual, transgender, and queer

(LGBTQ) Coloradans and their families.

Padres & Jovenes Unidos is a multi-issue

organization led by people of color who work for

educational equity, racial justice, immigrant rights,

and advocating for equal access to achieve a better

quality of life.

-App. 6-

PFLAG Boulder County is the extended family of

the LGBTQ community, made up of LGBTQ

individuals, family members, and allies. Because

together it is stronger, PFLAG Boulder County

provides support, education, and advocacy for the

families, friends, and allies of Jesbians, gays, bisexual,

transgender, queer, and intersex (LBGTQID) people,

as well as for the LGBTQI community itself.

PFLAG Greeley provides support, education, and

advocacy for lesbian, gay, bisexual, transgender, and

queer (LGBTQ) individuals, their families, friends,

and allies in the Greeley community.

Planned Parenthood of the Rocky Mountains,

which includes Planned Parenthood of Southern

Nevada, Planned Parenthood of New Mexico, and

Planned Parenthood of Wyoming, empowers

individuals and families in the communities we serve

to make informed choices about their sexual and

reproductive health by providing high-quality health

services, comprehensive sex education, and strategic

advocacy.

ProgressNow Colorado Education works to

improve the lives of all Coloradans by acting as the

collective voice for the progressive movement in both

traditional and new media.

-App. 7-

Rocky Mountain Arts Association builds

community through music performed by both the

Denver Gay Men’s Chorus and the Denver Women’s

chorus, providing educational, cultural, and social

enrichment for our audiences and our members.

Southern Colorado Equality Alliance brings

LGBTQ and ally communities together through

education, advocacy, and empowerment for support

and inclusion.

Trans* Youth Education and Support (TYES)

empowers and supports families and caregivers of

gender expansive youth by providing resources,

education, outreach, and advocacy, in order to create

supportive environments that allow youth to

experience the joy of authenticity.

The Transformative Freedom Fund supports the

authentic selves of transgender Coloradans by

removing financial barriers to transition-related

health care.

The Women’s Lobby of Colorado has sought to

provide better opportunities for women in our state

since 1993 by ensuring that public policies reflect

gender equity and justice.