Appeals Court ruling in 303 CREATIVE LLC is begging for SCOTUS review and overturn

The case is 303 Creative LLC v. Elenis; the majority opinion is by Judge Mary Briscoe, joined by Judge Michael Murphy, with a dissent by Chief Judge Timothy Tymkovich.

Thinking some more about this case, I'm beginning to wonder if the judge who wrote the opinion was doing it as a "false flag" operation.  Now, both of the judges who voted for it are Clinton appointees, so they may just be this deranged.

I understand that the Left is functionally insane, but this case is pretty much picture perfect to force SCOTUS to actually put up or shut up on religious freedom.

Let's sum up the case:

303 Creative is a for-profit, graphic and website design company; Ms. Smith is its founder and sole member-owner. Appellants are willing to work with all people regardless of sexual orientation. Appellants are also generally willing to create graphics or websites for lesbian, gay, bisexual, or transgender (“LGBT”) customers. Ms. Smith sincerely believes, however, that same-sex marriage conflicts with God’s will. Appellants do not yet offer wedding-related services but intend to do so in the future. Consistent with Ms. Smith’s religious beliefs, Appellants intend to offer wedding websites that celebrate opposite-sex marriages but intend to refuse to create similar websites that celebrate same-sex marriages. Appellants’ objection is based on the message of the specific website; Appellants will not create a website celebrating same-sex marriage regardless of whether the customer is the same-sex couple themselves, a heterosexual friend of the couple, or even a disinterested wedding planner requesting a mock-up.

Appellants brought a pre-enforcement challenge to CADA in the United States District Court for the District of Colorado.

So, this is a case where a web designer wants to be guaranteed that the Colorado Board of Religious Indoctrination Colorado Civil Rights Division couldn't go after her and try to force her to make web pages celebrating same sex "marriages".

Findings of the majority:

• Reviewing the issue de novo, we conclude that Appellants have shown an injury in fact. Appellants have sufficiently demonstrated both an intent to provide graphic and web design services to the public in a manner that exposes them to CADA liability, and a credible threat that Colorado will prosecute them under that statute.
• We do not decide whether Appellants’ (or any other businesses’) conscience- or message-based objections are a defense against CADA; we only hold that such objections are at least “arguably . . . proscribed by [the] statute.” SBA List, 573 U.S. at 162 (quoting Babbitt, 442 U.S. at 298) (alterations in original).
• According to Colorado, Appellants’ fear of prosecution is not credible because it requires the court to speculate about the actions of Appellants’ would-be customers.  We disagree. Appellants have a credible fear of prosecution because Appellants’ liability under CADA and Colorado’s enforcement of CADA are both “sufficiently imminent.” SBA List, 573 U.S. at 159. Appellants’ potential liability is inherent in the manner they intend to operate—excluding customers who celebrate same-sex marriages. Thus, Appellants are rightfully wary of offering wedding-related services and may challenge CADA as chilling their speech.
• If Appellants violate CADA, it is also “sufficiently imminent” that Colorado will enforce that statute against Appellants.  Indeed, Colorado’s strenuous assertion that it has a compelling interest in enforcing CADA indicates that enforcement is anything but speculative. See Colorado’s Br. at 67 (“That other website designers are willing to serve the LGBT community is of no moment”).2
• 2 For similar reasons, Colorado’s reliance on the Supreme Court’s recent decision in California v. Texas is misplaced. 141 S. Ct. 2104 (2021). In that case, the Supreme Court found that plaintiffs lacked standing to challenge an Affordable Care Act provision that carried a penalty of $0, and thus had “no means of enforcement.” Id. at 2114. By contrast, CADA imposes a minimum penalty of $50. Colo. Rev. Stat. § 24-34-602(1)(a). Colorado provides no indication that those statutory penalties are unenforceable. Colorado’s repeated refutations of both actual and threatened enforcement are puzzling, to say the least.
• Just as Appellants’ injury is traceable to Director Elenis and Attorney General Weiser, enjoining Director Elenis and Attorney General Weiser from enforcing CADA would redress Appellants’ fears that they may be subject to investigation, or face charges brought by the Attorney General. Accordingly, we conclude that Appellants have established Article III standing.3
• For the same reasons Appellants have established standing, we are satisfied that this case is ripe.
• It is a “fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 573 (1995); Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 61 (2006) (recognizing the principle “that freedom of speech prohibits the government from telling people what they must say”).
• a. Compelled Speech
• Appellants’ creation of wedding websites is pure speech. The websites Appellants intend to offer “celebrate and promote the couple’s wedding and unique love story” by combining custom text, graphics, and other media. Aplts.’ App. at 2-325 (¶¶ 81, 84). The websites consequently express approval and celebration of the couple’s marriage, which is itself often a particularly expressive event. ... Appellants’ custom websites are similar to wedding videos and invitations, both of which have also been found to be speech.
• Our analysis relies on the custom and unique nature of Appellants’ services, rather than their chosen medium.
• Nor does a profit motive transform Appellants’ speech into “commercial conduct.” See Colorado’s Br. at 37. The First Amendment’s protections against compelled speech are “enjoyed by business corporations generally and by ordinary people engaged in unsophisticated expression as well as by professional publishers.” Hurley, 515 U.S. at 574.
• The Accommodation Clause also “compels” Appellants to create speech that celebrates same-sex marriages. Colorado asserts that the Accommodation Clause only regulates Appellants’ conduct in picking customers and does not regulate Appellants’ speech. See Colorado’s Br. at 40. Yet, this argument is foreclosed by Hurley. As with the Massachusetts public accommodations law in Hurley, CADA has the effect “of declaring the sponsors’ speech itself to be the public accommodation.” Hurley, 515 U.S. at 573. By compelling Appellants to serve customers they would otherwise refuse, Appellants are forced to create websites— and thus, speech—that they would otherwise refuse.
• Because the Accommodation Clause compels speech in this case, it also works as a content-based restriction. ... Appellants cannot create websites celebrating opposite-sex marriages, unless they also agree to serve customers who request websites celebrating same-sex marriages.
• As the Supreme Court has repeatedly made clear, “[w]hile the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government.” Hurley, 515 U.S. at 579; see also Boy Scouts of Am. v. Dale, 530 U.S. 640, 659 (2000) (“The state interests embodied in New Jersey’s public accommodations law [prohibiting expulsion of a LGBT scoutmaster] do not justify such a severe intrusion on the Boy Scouts’ rights to freedom of expressive association.”).

So, what did they do with all these findings?

CADA only applies here because Appellants intend to sell their unique services to the public. The question then becomes whether Colorado’s interest in ensuring access to the marketplace generally still applies with the same force to Appellants’ case specifically—i.e., “whether [Colorado] has such an interest in denying an exception to [Appellants].” Fulton, 141 S. Ct. at 1881.

Excepting Appellants from the Accommodation Clause would necessarily relegate LGBT consumers to an inferior market because Appellants’ unique services are, by definition, unavailable elsewhere.  As discussed above, our analysis emphasizes the custom and unique nature of Appellants’ services. For the same reason that Appellants’ custom and unique services are speech, those services are also inherently not fungible. To be sure, LGBT consumers may be able to obtain wedding-website design services from other businesses; yet, LGBT consumers will never be able to obtain wedding-related services of the same quality and nature as those that Appellants offer. Thus, there are no less intrusive means of providing equal access to those types of services.4

In short, because the web designer will be making something by her own individual effort, with her own personal thoughts and abilities, she must put those abilities to the service of the State of Colorado's religious belief that everyone must value homosexuality the way the State of Colorado does.

I'm sure Roberts will want to come up with some way to dodge the relevant questions here.  But the Appeals Court did their best to take away all his dodges (standing, etc.).

The only cute plaintiff here is the woman who just wants to make web pages, who will be harassed and abused by CO if she tries to follow her religious beliefs.

If the Supreme Court can't overturn this, it's time for a revolution.