Shaheen, Kuster, Pappas join amicus brief in high court nondiscrimination case

137 members of Congress oppose potentially weakening of Colorado law by U.S. Supreme Court

Supreme Court Guardian Of LawU.S. Sen. Jeanne Shaheen along with U.S. Reps. Annie Kuster and Chris Pappas, are among 137 members of Congress who have filed an amicus brief to defend nondiscrimination laws in the upcoming Supreme Court case, 303 Creative LLC v. Elenis.

The case is a challenge to a Colorado nondiscrimination law that is seen as potentially weakening federal nondiscrimination laws covering public accommodations – including race, religion, color, national origin and disability – and by providing a constitutional right to discriminate in certain instances against LGBTQ+ people and other marginalized groups.

303 Creative LLC v. Elenis was filed by a Colorado-based graphic designer who wants to develop wedding websites in the future but does not want to create wedding websites for same-sex couples. Colorado law currently prohibits discrimination on the basis of sexual orientation in public accommodations. The Colorado law does not dictate what services a business provides but rather requires that a service offered to the general public be offered to all prospective customers without discriminating based on protected characteristics such as race, religion, or sexual orientation. The graphic designer is arguing that this law violates her First Amendment rights and that she should be able to discriminate. A broad ruling for the graphic designer could not only provide a constitutional basis for discriminating against same-sex couples, but also for discriminating against all marginalized people currently protected by public accommodations nondiscrimination laws.

In the 303 Creative LLC case, owner Lorie Smith, a website designer, sought to warn potential clients that she would not create wedding websites featuring same-sex couples because of her Christian beliefs. Last fall, the 10th Circuit U.S. Court of Appeals ruled that Colorado’s anti-discrimination law is constitutional, and its goal of eliminating prejudicial treatment of marginalized groups outweighs a business’s right to communicate their anti-LGBTQ beliefs.

It ruled that 303 Creative “cannot create websites celebrating opposite-sex marriages, unless they also agree to serve customers who request websites celebrating same-sex marriages. As Colorado makes clear, CADA is intended to remedy a long and invidious history of discrimination based on sexual orientation.”

However, Supreme Court watchers say that the justices are likely to rule in favor of Smith’s business although it remains to seen what, if any, effect whether their decision will have a significant effect on employers’ anti-discrimination policies in general.

But the members of Congress are not taking any chances.

Pappas, who co-chairs the Congressional LGBTQ+ Equality Caucus and is the first openly gay member of Congress from New Hampshire, said the 303 Creative LLC case “threatens the freedom and dignity that all Americans deserve, including LGBTQ+ individuals who still can face discrimination today in far too many aspects of their lives.”

“Nondiscrimination laws are at the heart of our ability to live freely and enjoy fundamental civil liberties. We’ve seen a devastating wave of attacks on civil liberties as of late, and this case poses the latest threat by opening the door to enabling discrimination against LGBTQ+ individuals as a constitutional right,” said Shaheen, who added that the case
“runs counter to our core values of freedom and equality, which is why I’m joining my colleagues in this amicus brief to protect nondiscrimination laws under assault.”

Kuster echoed her colleagues, saying that “businesses that are open to the public should not be permitted to discriminate against people, no matter who they are or who they love. I was proud to help pass the Equality Act in the House and I will continue working to protect the rights of all Americans.”


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