This Legal Case is ADF’s Latest Desperate Attempt to Roll Back LGBTQ ProtectionsBy Shane Stahl • April 23, 2018 • 6:19 pm
In the wake of the Alliance Defending Freedom’s Masterpiece Cakeshop case, in which the U.S. Supreme Court heard oral argument on December 5, 2017, and decisions in several other recent cases concerning LGBTQ discrimination, a somewhat lower profile case also filed by ADF has made its way to the 10th Circuit Court of Appeals, seeking to carve out Colorado’s long standing nondiscrimination law prohibiting discrimination in places of public accommodation based on sexual orientation and gender identity. The case was originally scheduled for oral argument for May 15, 2018 – but a scheduling order issued April 23 postponed the argument date until September.
Although the case likely won’t be heard until after the Masterpiece Cakeshop decision is released from the U.S. Supreme Court, it’s worth taking a closer look at the case, its origins, and its arguments – if for no other reason than to keep an eye on a new kind of anti-LGBTQ argument being pushed by one of the nation’s most powerful organizations advocating for shameful discrimination against LGBTQ Americans.
Background on 303 Creative
The case, 303 Creative v. Elenis concerns a business owner, a graphic designer, seeking to actively discriminate against LGBTQ couples by preemptively refusing them service, advertising that she does not serve same-sex couples. The owner claims that state law would force her into “promoting same sex marriage,” and so she has filed a preemptive lawsuit.
Additionally, the owner says she is seeking to actively promote her business as openly discriminatory toward same-sex couples and has stated that the Colorado law prevents her from promoting this view. In reality, the Colorado Public Accommodations Act simply requires that businesses open to the public are open to all, and that no one can be turned away simply because of their sexual orientation or gender identity, just as no one can be turned away because of their race, faith, sex, or ethnicity.
ADF’s Long Anti-LGBTQ History
It should come as no surprise that 303 Creative is represented by the Alliance Defending Freedom (ADF), a notoriously anti-LGBTQ group that has sought to both undo existing nondiscrimination laws and defend discriminatory laws and practices. ADF has been designated a hate group by the Southern Poverty Law Center for promoting known falsehoods that target and harm LGBTQ people in the United States and abroad.
The group has a long history of anti-LGBTQ behavior, including an attempt to criminalize homosexuality in briefs submitted in the Lawrence v. Texas Supreme Court case, as well as actively engaging businesses on how to legally discriminate against LGBTQ people by claiming religious and moral exemptions to nondiscrimination laws.
Most recently, ADF has turned their efforts toward a number of cases seeking to carve out existing non-discrimination protections that cover LGBTQ people.
The organization is behind the Masterpiece Cakeshop v. Colorado Civil Rights Commission case, currently awaiting a decision from the United States Supreme Court. After oral argument on December 5, ADF held a press conference outside the Supreme Court with the case’s plaintiff, a Colorado cake baker who refused service to a same sex couple by claiming a religious exemption, saying he could not “endorse” same sex marriage. ADF has long promoted the belief that nondiscrimination laws are an attack on religion, specifically Christianity. In fact, a statement on their website reads: “These ordinances…are not designed for the innocent purpose of ensuring all people receive basic services. Rather, their primary effect is to legally compel Christians to accept, endorse, and even promote messages, ideas, and events that violate their faith.”
ADF’s Previous Discriminatory Tactics
The Alliance Defending Freedom has worked through its legal cases to attempt every kind of configuration possible to carve out, preempt, or nullify existing protections from anti-LGBTQ discrimination. Here’s a rundown of strategies ADF is using now or has used in the past to roll back or preempt LGBTQ equal treatment:
- Carve Out Existing State Public Accommodations Protections by Claiming Religious Exemptions: In 2008 ADF represented a photographer in New Mexico who wished to discriminate against LGBTQ people in the case Elane Photography v. Willock. The case concerned a photographer who denied service to a same-sex couple seeking to hire a photographer for their commitment ceremony, simply because of their sexual orientation. The case went all the way to the U.S. Supreme Court, which in 2014 ultimately denied review of a decision in favor of the same-sex couple, leaving in a place a ruling from the New Mexico Supreme Court that said the photographer was not exempt from following New Mexico’s nondiscrimination law.
- Carve Out Existing State Public Accommodations Protections by Claiming Freedom of Speech Violations: Over the years, ADF’s arguments about religious exemptions have failed so many times in court that the organization has begun to broaden its argument, now claiming that treating LGBTQ people fairly and equally violates business owners’ beliefs or freedom of speech. This is especially prevalent in Masterpiece Cakeshop, where ADF argues that baking a wedding cake is akin to creating art – and that if a baker sells a cake to a same-sex couple, even if the cake does not include words or a design, the baker is effectively being forced to participate in the couple’s ceremony. This is, of course, a broad and confusing argument – every day businesses sell products to people across the country under no illusion that the sale is tantamount to an endorsement of every element of a person’s life. The U.S. Supreme Court must see through these dubious arguments and uphold LGBTQ-inclusive nondiscrimination laws.
- Carve Out Existing Federal Employment Protections by Claiming Religious Exemptions: In a recent case, EEOC v. R.G. & G.R. Funeral Homes, ADF attempted to argue that employers should be able to exempt themselves from following Title VII of the Civil Rights Act, which prohibits discrimination based on sex. In Michigan, where the case is based, Title VII has been found by the 6th Circuit Court of Appeals to apply to discrimination based on gender identity. The case involves a transgender woman named Aimee Stephens who was fired from a funeral home simply for being open about her gender identity. With regard to the EEOC case, ADF continually pushed forward their narrative that non-religious institutions should have the right to offer religious exemptions. Following a March ruling in favor of the EEOC, ADF claimed that the funeral home was being “strong-armed” into allowing Stephens to affirm her gender identity and continue employment.
ADF’s Latest Effort: Denying Service to LGBTQ People Before LGBTQ People Even Seeking a Service
A more recent run of cases filed by ADF involves businesses who assert they want to offer certain services – but they are afraid to enter the marketplace because they do not want to offer those services to LGBTQ people.
Telescope Media Group v. Lindsey, ADF represents the owners of a video and film production company. While they do not currently offer the service of filming weddings, they say they would like to enter that area of work – but if they do, they want to be able to refuse to film weddings between same-sex couples. ADF reports that they “want to use their wedding cinematography to reanimate the hearts and minds of people about the goodness of marriage between a man and a woman.” Doing so, of course, would violate Minnesota’s LGBTQ-inclusive nondiscrimination law. In September 2017 a federal judge ruled that way, writing in a dismissal, “All of the Larsens’ claims fail as a matter of law.”
A separate case, Brush and Nib Studio v. City of Phoenix, seeks a carveout from Phoenix’s LGBTQ-inclusive nondiscrimination ordinance for a business that sells calligraphy services. The case seeks an exemption from the nondiscrimination ordinance under the “Arizona Free Exercise of Religion Act,” with the business asserting that they should be allowed to refuse service to LGBTQ people. A judge in Arizona knocked down these discriminatory arguments, ruling last October: “The government may permissibly regulate the sale of goods and services by businesses that sell those goods and services to the general public. This is true even if the goods and services at issue involve expression or artistic creativity. … The printing of same-sex persons’ names on wedding invitations does not hinder in any way plaintiffs’ independent exercise of (their) religious belief by attending the church of their choice, engaging in religious activities or functions, and expressing their beliefs on their business website and literature or in their personal lives.”
Both cases are similar to 303 Creative.
There’s a simple reason that these lawsuits should – and have – failed in court, beyond the doubts about whether the businesses even have legal standing to sue. There is a simple truth at the heart of the #OpenToAll campaign: Any business is free to choose what services they wish to offer – but no business should be free to choose who they serve and who they refuse to serve, based solely on sexual orientation or gender identity. That is, a business is free to refuse to film weddings, sell wedding cakes, or design invitations for weddings – but they cannot refuse to offer these services only to same-sex couples. They cannot single out a group of people because of their sexual orientation and deny them service based on who they are.
These latest effort in the 303 Creative case creates a problem out of thin air that simply doesn’t exist. The business owner has never served nor refused service to a same-sex couple, and is seeking to prevent herself from a pure hypothetical. She has never been approached by a same-sex couple seeking to hire her. This case is a runaround regarding basic civil rights protections, a transparent attempt to roll back existing protections under Colorado law and it has no validity.
Why LGBTQ-Inclusive Nondiscrimination Laws Matter
Nondiscrimination laws exist because they uphold the right of people to exist in the world without being afraid that they will be denied service nor refused entry or opportunity in regards to housing, employment, and public accommodations. It has been widely acknowledged that when people are protected from discrimination, the more communities flourish.
The free exercise of religion is a right that all people care about, including LGBTQ people, and it’s already protected in the U.S. Constitution. However, it cannot be used to discriminate against a group of people simply because of who they are and who they love — this runs contrary to the very founding of our country. Colorado’s law, like similar laws in nearly two dozen other states, has been in place for many years, and in that time has prevented people from all walks of life from being unfairly treated or singled out.
Freedom For All Americans is proud to work with our partners at One Colorado, the state’s leading LGBTQ equality group, in continuing to defend this important law in the Centennial State, and continue the movement for comprehensive nondiscrimination protections nationwide.