Brnovich leads push to overturn Colorado anti-discrimination law

Arizona’s top prosecutor is urging a federal appeals court to allow a Colorado woman and the company she owns to refuse to design a web site for a same-sex wedding.

In a new legal brief filed with the 10th Circuit Court of Appeals, Attorney General Mark Brnovich said the rights of Lorie Smith trump a Colorado law which makes it illegal for businesses open to the public to refuse to offer services because of a customer’s sexual orientation. That same law also bars companies from posting notices that they won’t serve gays.

A federal judge had sided with the state in the dispute. Now Brnovich, leading a group of 13 other Republican attorneys general, is telling the appellate court they should reverse that ruling.

Mark Brnovich

The filing comes the same week that some Arizona lawmakers are seeking to expand state laws to prohibit discrimination in public accommodations − including businesses like the one run by Smith − based on sexual orientation and gender identification. The bills sponsored by Sen. Kate Brophy McGee, R-Phoenix, and Rep. Daniel Hernandez, D-Tucson, also would effectively nullify last year’s decision of the Arizona Supreme Court allowing a business here to refuse to design wedding invitations for same-sex couples.

Brnovich would not respond to questions about whether he believes existing laws barring discrimination based on age, sex, religion, race and disability should be extended to include sexual orientation and gender identification. It is the Attorney General’s Office that is empowered to enforce such laws.

But with the new filing, Brnovich makes it clear that he opposes enacting any laws that would allow the state to force a business to serve all clients, regardless of the owner’s religious beliefs. In fact, Brnovich is using the majority decision in that Arizona ruling involving favoring the owners of Brush & Nib Studios − a ruling he urged the judges here to reach — to convince the federal judges in Colorado to reach the same conclusion in this new case.

In the brief, Brnovich said he and his fellow attorneys general “have compelling interests in protecting their citizens’ freedoms of speech and religion as secured by the United States Constitution.”

“(We) do not, however, have legitimate interests in coercing individuals to use their talents to create government sponsored message or in muzzling individual expression by presuming that the exercise of religion is unlawful,” he wrote. “Such practices, if permitted, are not only constitutionally forbidden, they also would undermine the mutuality of obligation upon which our pluralistic and tolerant society is founded.”

Brnovich’s decision to intervene on behalf of Smith is, in many ways, not a surprise. He also filed legal briefs last year siding with Breanna Koski and Joanna Duka, the owners of Brush & Nib, in their claim to exemption from a Phoenix anti-discrimination ordinance protecting same-sex couples.

There are parallels between the case.

Smith, like Koski and Duka, told the federal court in Colorado she is a devout Christian, believes in “biblical marriage” and opposes the extension of marriage rights to same-sex couples.

She asked the judge there to issue a ruling declaring she was not bound by the Colorado law which prohibits discrimination in providing goods and services on various grounds, including on the basis of sexual orientation. And Smith also wanted the court to say that, despite Colorado law, she is free to publicize that she won’t accept such business.

Judge Marcia Krieger ruled that Smith had no legal standing to challenge the anti-discrimination law. And she rejected any claim Smith has a First Amendment right to advertise that she wouldn’t serve gays.

“To be sure, there have been occasions where First Amendment speech or associational rights have been found to prevail over the application of state anti-discrimination laws,” Krieger wrote.

But the judge said that this isn’t a question of Smith declaring her personal views on her own web site or social media page but instead in the context of advertising her own business. And Krieger said that puts her in direct conflict with Colorado laws barring businesses from discriminating based on sexual orientation.

Brnovich, in his filing in that case, said Krieger was assuming that the Colorado law can be legally applied in all circumstances, “including when the law forces individuals to engage in expressive activity contrary to their sincerely held religious beliefs.” That, he wrote is “contrary to the law.”

“Governments cannot force individuals to modify the content of their expression to promote an approved message or discourage a disfavored one, however enlightened either purpose may strike the government,” Brnovich said. “A content-based speech prohibition cannot be justified by a statute that makes constitutionally protected expression unlawful.”

He did acknowledge that there are circumstances where governments can prohibit speech. But Brnovich said that limited exception “only applies when speech proposes conduct that is illegal.”

That, however, goes to the question of whether the Colorado law barring discrimination by businesses against gays is itself constitutional, a contention with which Brnovich disagrees.

And there’s something else. Brnovich said that Colorado cannot constitutionally coerce Smith to say something with which she disagrees.

“It also cannot force (Smith) to stay silent either,” he said. “The fundamental rule of protection under the First Amendment (is) that a speaker has the autonomy to choose the content of his own message, including the right to decide what not to say.”