Case 1:16-cv-02372-CBS Document 6 Filed 09/20/16 USDC Colorado Page 1 of 10

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 1:16-cv- 02372-CBS

303 CREATIVE LLC, a limited liability company; and
LORIE SMITH,
Plaintiffs,
vs.
AUBREY ELENIS, Director of the Colorado Civil Rights
Division, in her official capacity;
ANTHONY ARAGON,
ULYSSES J. CHANEY,
MIGUEL MICHAEL RENE ELIAS,
CAROL FABRIZIO,
HEIDI HESS,
RITA LEWIS, and
JESSICA POCOCK, as members of the Colorado Civil Rights
Commission, in their official capacities, and
CYNTHIA H. COFFMAN, Colorado Attorney General,
in her official capacity;
Defendants.

PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION

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Now come Plaintiffs 303 Creative LLC and Lorie Smith, by and through counsel, and
hereby move this Court for a preliminary injunction, pursuant to Federal Rule of Civil Procedure
65. This requested preliminary injunction will prohibit Defendants from enforcing Colo. Rev.
Stat. 24-34-601(2)(a) in a manner that (1) requires Plaintiffs to design, create, or publish
custom wedding websites promoting and celebrating same-sex weddings if they design, create,
or publish custom websites promoting and celebrating weddings between one man and one
woman and (2) bans Plaintiffs from publishing speech explaining their religious reasons for
declining to design, create, and publish custom wedding websites that celebrate any form of
marriage not between one man and one woman, including the specific website (attached to the
Verified Complaint as Exhibit B) that Plaintiffs want to publish but have not done so for fear of
punishment. In support of this motion seeking as-applied relief, Plaintiffs rely upon the Verified
Complaint, the affidavit and appendix filed in support of this motion, the memorandum of law
filed herewith, and any oral argument set by the Court.
Lorie Smith is a graphic and website design artist who always dreamed of using her
artistic ability for a higher purpose. To accomplish this goal, Lorie started her own business, 303
Creative LLC, so that she could more fully integrate her faith and her work, something she could
not do at the traditional graphics and marketing companies where she had worked. As 303
Creatives sole owner/operator and employee, Lorie uses her substantial experience with graphic
design, website design, social media management, and marketing to promote messages that align
with her religious beliefs. Lorie declines to create any artwork, graphics, or textual content that
communicates ideas or messages that are inconsistent with her beliefs. Ver. Compl. 115.

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One key way in which Lorie felt called by God to serve Him through her work was by
designing, creating, and publishing custom wedding websites that depict the beauty of Gods
design for marriage between one man and one woman. This work is expressive in nature and
uses images, words, symbols, and other modes of expression to tell a couples unique story of
love and commitment. Lorie created a special addition to 303 Creatives website announcing
this new service and describing 303 Creatives religious motivation for offering this artistic
service. To be transparent about the services 303 Creative provides, this addition explains that
she will not be able to create websites for same-sex marriage or any other marriage that is not
between one man and one woman because [d]oing that would compromise [her] Christian
witness and tell a story about marriage that contradicts Gods true story of marriagethe very
story He is calling [her] to promote. Ver. Compl. 163. But this website addition never saw
the light of day.
Colorados Anti-Discrimination Act (CADA) bars businesses from discriminating
based on a persons disability, race, creed, color, sex, sexual orientation, marital status, and
national origin or ancestry. Colo. Rev. Stat. 24-34-601(2)(a). It also bars businesses from
publishing statements that would directly or indirectly indicate that service will be denied, or that
a persons patronage or presence is unwelcome, objectionable, unacceptable, or undesirable,
based on these protected grounds. Id. This rule should have no effect on Lories religious
practice because she decides what expression to create based on its message, not any prospective
clients personal characteristics. 1

But Defendants have interpreted CADA as prohibiting

For simplicitys sake, this motion refers to both Plaintiffs collectively as Lorie whenever
possible.

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expressive businesses from declining to create speech that celebrates same-sex marriage for
religious or moral reasons. App. in Supp. of Pls. Mot. for Prelim. Inj. (App.) 1-16, 43-52.
As a result, Defendants have prosecuted Masterpiece Cakeshop, a Christian bakery, under
CADA for declining to create a custom wedding cake for a same-sex couple, even though
Masterpiece Cakeshop declined that order based on the unwelcome message expressed by the
cake and offered to make any number of other items for the prospective clients. Ver. Compl.
70-72; App. 5, 46, 51. Defendants, in contrast, deemed three secular bakeriesAzucar
Bakery, Le Bakery Sensual, Inc., and Gateaux, Ltd.in compliance with CADA when they
refused to create custom cakes expressing a religious message critical of same-sex marriage for a
Christian client but would create other items for Christians. App. 17-34. Thus, with respect to
expressive businesses that approve of same-sex marriage, Defendants recognized a distinction
between (a) discrimination based on a protected status and declining a commission based on a
disagreeable message and (b) the significance of the bakeries willingness to create other items
for members of a protected group. App. 20. But Defendants refuse to apply either consideration
to Masterpiece Cakeshop or other expressive businesses that oppose same-sex marriage, putting
them at imminent risk of incurring investigations, re-education training, reporting requirements,
and fines of up to $500 for each violation of CADA. Colo. Rev. Stat. 24-34-306(2)(a),
-306(9), -602(1)(a), -605; App. 5-6, 15, 46, 51.
303 Creative holds the same religious beliefs regarding marriage as Masterpiece
Cakeshop and has the same policy of not creating speech that promotes same-sex marriage. Ver.
Compl. 113-14. And 303 Creative wishes to publish speech explaining its religious reasons
for declining to promote any form of marriage not between a man and a woman. Ver. Compl.

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162-63, 219-20. It is thus a clear target of Defendants rules that no expressive business may
decline to create speech promoting same-sex marriage on religious or moral grounds or publish
speech explaining its religious reasons for celebrating only marriage between a man and a
woman. As a direct result, 303 Creative has not published the new addition to its website
announcing the availability of custom wedding websites and explaining its religious reasons for
designing, creating, and publishing only speech that promotes Gods design for marriage
between a man and a woman.

Ver. Compl. 177-79.

But for CADA and Defendants

discriminatory application of it, 303 Creative would do so immediately. Ver. Compl. 180,
285.
Defendants application of CADA to expressive businesses that oppose same-sex
marriage on religious groundslike 303 Creativeviolates the First Amendment, the
Unconstitutional Conditions Doctrine, and the Equal Protection Clause. Indeed, Defendants
application of CADA violates three aspects of the First Amendment: (1) the Free Speech Clause,
(2) the Free Press Clause, and (3) the right of expressive association. The Free Speech Clause
protects Lories right to speak about marriage and create art that aligns with her religious beliefs.
But Defendants apply CADA in a content and viewpoint based fashion to target expressive
businesses that disfavor same-sex marriage, like 303 Creative, for censure and punishment.
Defendants also compel Lorie to create expression celebrating same-sex marriage against her
will in violation of the Compelled Speech Doctrine. Defendants application of CADA further
violates the Free Press Clause by prohibiting Lorie from publishing a religious critique of samesex marriage on 303 Creatives website because doing so might directly or indirectly indicate
requests for custom same-sex wedding websites would be unwelcome or denied. Defendants

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application of CADA also unlawfully compels Lorie to engage in expressive association with
persons seeking to partner with an artist to promote a view of marriage that directly opposes her
own.
Furthermore, Defendants apply CADA to condition Lories right to create expression
about marriage between a man and a woman on her agreement to create unwanted expression
about other types of marital unions. This violates the Unconstitutional Conditions Doctrine by
deterring or chilling Lories protected speech in an indirect attempt to do what Defendants
cannot do directly, i.e., force Lorie to engage in speech celebrating same-sex marriage.
Likewise, Defendants application of CADA only to expressive businesses that disfavor samesex marriagelike 303 Creativebut not to expressive businesses that support same-sex
marriagelike Azucar Bakery, Le Bakery Sensual, Inc., and Gateaux, Ltd.violates the Equal
Protection Clause.

Such unequal treatment based on expressive businesses viewpoints on

marriage has no rational, let alone compelling, basis.

Defendants interpretation of CADA has barred, and will continue to bar, Lorie from
engaging in protected speech about marriage. It is imperative that this Court enjoin Defendants
unconstitutional policy and practice of applying CADA to force Lorie to design, create, and
publish speech promoting same-sex marriage and to forbid Lorie from broadcasting her religious
views on marriage on 303 Creatives website. Lorie experiences irreparable harm each day
Defendants prohibit her from engaging in free speech. Lorie thus respectfully requests that this
Court rule on her Motion for Preliminary Injunction as soon as possible.
Lorie also respectfully requests that this Court waive the bond requirement for a
preliminary injunction because this case serves the public interest by vindicating her First and

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Fourteenth Amendment rights, see City of Atlanta v. Metro. Atlanta Rapid Transit Auth., 636
F.2d 1084, 1094 (5th Cir. 1981) (upholding the waiver of bond where plaintiffs were engaged in
public-interest litigation), and there is no likelihood of harm to Defendants, as they already
recognize the free speech rights of expressive businesses that support same-sex marriage, see
Coquina Oil Corp. v. Transwestern Pipeline Co., 825 F.2d 1461, 1462 (10th Cir. 1987) ([A]
trial court may determine a bond is unnecessary to secure a preliminary injunction if there is
an absence of proof showing a likelihood of harm. (quotation omitted)). Lories ability to
protect her constitutional rights should not be contingent upon an ability to pay. Doctor
Johns, Inc. v. City of Sioux City, 305 F. Supp. 2d 1022, 1043-44 (N.D. Iowa 2004); see also
Westfield High Sch. L.I.F.E. Club v. City of Westfield, 249 F. Supp. 2d 98, 128-29 (D. Mass.
2003) (noting that requiring a security bond might deter others from exercising their
constitutional rights).
In keeping with Local Rule 7.1(a), counsel for Plaintiffs conferred with the Office of the
Colorado Attorney General about this motion via telephone on September 20, 2016. Deputy
Attorney General Vincent Morscher indicated to Plaintiffs counsel that he and Assistant
Attorney General Jack D. Patten, III intend to appear as attorney of record in this case on behalf
of Defendant Aubrey Elenis in her official capacity as Director of the Colorado Civil Rights
Division; First Assistant Attorney General Eric Maxfield indicated to Plaintiffs counsel that he
intends to appear as attorney of record in this case on behalf of Defendants Anthony Aragon,
Ulysses J. Chaney, Miguel Michael Rene Elias, Carol Fabrizio, Heidi Hess, Rita Lewis, and
Jessica Pocock in their official capacities as member of the Colorado Civil Rights Commission,
and First Assistant Attorney General LeeAnn Morrill indicated to Plaintiffs counsel that she

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intends to appear as attorney of record in this case on behalf of Defendant Cynthia H. Coffman in
her official capacity as Colorado Attorney General. Attorneys for Defendants indicated that they
were unable to state their position regarding Plaintiffs motion at this time, but Plaintiffs will
notify the Court upon receiving Defendants positions on the motion unless Defendants notify
the Court directly. Accordingly, Plaintiffs counsel filed the present motion with the Court.

Respectfully submitted this 20th day of September, 2016.

s/ Jeremy D. Tedesco
Jeremy D. Tedesco (Arizona Bar No. 023497)
Jonathan A. Scruggs (Arizona Bar No. 030505)
Samuel D. Green (Arizona Bar No. 032586)
Katherine L. Anderson (Arizona Bar No. 033104)
ALLIANCE DEFENDING FREEDOM
15100 N. 90th Street
Scottsdale, AZ 85260
(480) 444-0020
(480) 444-0028 (facsimile)
jtedesco@ADFlegal.org
jscruggs@ADFlegal.org
sgreen@ADFlegal.org
kanderson@ADFlegal.org
David A. Cortman (Georgia Bar No. 188810)
Rory T. Gray (Georgia Bar No. 880715)
ALLIANCE DEFENDING FREEDOM
1000 Hurricane Shoals Road, NE, Suite D-1100
Lawrenceville, GA 30043
(770) 339-0774
(770) 339-6744 (facsimile)
dcortman@ADFlegal.org
rgray@ADFlegal.org
Attorneys for Plaintiffs

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Michael L. Francisco (Colorado Bar No. 39111)

MRD Law
3301 West Clyde Place
Denver, CO 80211
(303) 325-7843
(303) 723-8679 (facsimile)
MFL@MRDlaw.com
Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE
I hereby certify that on September 20th, 2016, the foregoing was filed with the Clerk of
Court using the CM/ECF system. This Plaintiffs Motion for Preliminary Injunction will be
served along with the Complaint and Summons via process server to all defendants.

s/ Jeremy D. Tedesco
Jeremy D. Tedesco (Arizona Bar No. 023497)
ALLIANCE DEFENDING FREEDOM
15100 N. 90th Street
Scottsdale, AZ 85260
(480) 444-0020
(480) 444-0028 (facsimile)
jtedesco@ADFlegal.org