303 CREATIVE LLC v. ELENIS

No. 19-1413.

6 F.4th 1160 (2021)

303 CREATIVE LLC, a limited liability company; Lorie Smith, Plaintiffs-Appellants, v. Aubrey ELENIS; Charles Garcia; Ajay Menon; Miguel Rene Elias; Richard Lewis; Kendra Anderson; Sergio Cordova; Jessica Pocock; Phil Weiser, Defendants-Appellees. Foundation for Moral Law; Cato Institute; Center for Religious Expression; Catholicvote.org Education Fund; Law and Economic Scholars; Tyndale House Publishers; Crossroads Productions, Inc., d/b/a Catholic Creatives; Whitaker Portrait Design, Inc., d/b/a Christian Professional Photographers; The Briner Institute, Inc.; State of Arizona; State of Alabama; State of Alaska; State of Arkansas; State of Kentucky; State of Louisiana; State of Missouri; State of Montana; State of Nebraska; State of Oklahoma; State of South Carolina; State of Tennessee; State of Texas; State of West Virginia; Robert P. George, Professor; American Civil Liberties Union of Colorado; American Civil Liberties Union Foundation; Americans United for Separation of Church and State; Anti-defamation League; Bend the Arc: a Jewish Partnership for Justice; Central Conference of American Rabbis; Global Justice Institute, Metropolitan Community Churches; Hadassah, the Women's Zionist Organization of America, Inc.; Hindu American Foundation; Interfaith Alliance Foundation; Interfaith Alliance of Colorado; Men of Reform Judaism; People for the American Way Foundation; Reconstructionist Rabbinical Association; Sikh Coalition; Women of Reform Judaism; Union for Reform Judaism; State of Massachusetts; State of California; State of Connecticut; State of Delaware; District of Columbia; State of Hawaii; State of Illinois; State of Maine; State of Maryland; State of Minnesota; State of Nevada; State of New Jersey; State of New Mexico; State of New York; State of North Carolina; State of Oregon; State of Pennsylvania; State of Rhode Island; State of Vermont; State of Virginia; State of Washington; Law Professors of the State of Colorado; Law Professors From the State of Kansas; Law Professors From the State of New Mexico; Law Professors From the State of Oklahoma; Law Professors From the State of Utah; Law Professors From the State of Wyoming; Lawyers' Committee for Civil Rights Under Law; Southern Poverty Law Center; Asian American Legal Defense & Education Fund; LatinoJustice PRLDEF; Leadership Conference on Civil and Human Rights; National Action Network; the Center for Constitutional Rights; Center for Constitutional Rights; Floyd Abrams; Erwin Chemerinsky; Walter Dellinger; Kermit Roosevelt; Amanda Shanor; Rebecca Tushnet; Max H. Bazerman; Monica C. Bell; Issa Kohler-Hausmann; David Laibson; Adam J. Levitin; Mary-Hunter McDonnell; Neeru Paharia; Nina Strohminger; Tom R. Tyler; Lauren E. Willis; Lambda Legal Defense & Education Fund, Inc., Amici Curiae.

United States Court of Appeals, Tenth Circuit.

Filed July 26, 2021.


Attorney(s) appearing for the Case

Kristin K. Waggoner ( Jonathan A. Scruggs and Katherine L. Anderson , Alliance Defending Freedom, Scottsdale, Arizona; David A. Cortman and John J. Bursch , Alliance Defending Freedom, Washington, DC, with her on the briefs), Alliance Defending Freedom, Scottsdale, Arizona, appearing for Plaintiffs-Appellants.

Eric R. Olson , Solicitor General ( Phillip J. Weiser , Colorado Attorney General; Billy Lee Seiber , First Assistant Attorney General; Jack D. Patten, III , Senior Assistant Attorney General; Vincent E. Morscher and Skippere S. Spear , with him on the brief), Colorado Department of Law, Denver, Colorado, appearing for Defendants-Appellees.

Before TYMKOVICH, Chief Judge, BRISCOE, and MURPHY, Circuit Judges.


I. Introduction

Appellants Lorie Smith and her website design company 303 Creative, LLC (collectively, "Appellants") appeal the district court's grant of summary judgment in favor of Appellees Aubrey Elenis, Director of the Colorado Civil Rights Division (the "Director"), Anthony Aragon, Ulysses J. Chaney, Miguel...

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