303 Creative LLC et al v. Elenis et al

Filing 125

ORDER by Chief Judge Philip A. Brimmer on 3/26/24. The Opinion and Order Granting Summary Judgment 79 and the Final Judgment 80 are VACATED as to plaintiffs' first cause of action. The Clerk of the Court shall amend the judgment entered on September 26, 2019 80 in accordance with this order. Plaintiffs may file a bill of costs and motion for attorney's fees in compliance with D.C.COLO.LCivR 54.3 within 90 days of the entry of final judgment. The Court will retain jurisdiction over this action for purposes of determining and entering an award for attorney's fees and costs. Plaintiffs' Motion for Attorneys' Fees and Costs and for an Extension of Filing Deadline 96 is DENIED as moot.(sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 16-cv-02372-PAB
303 CREATIVE LLC, a limited liability company, and
LORIE SMITH,
Plaintiffs,
v.
AUBREY ELENIS, Director of the Colorado Civil Rights Division, in her official capacity,
SERGIO RAUDEL CORDOVA,
CHARLES GARCIA,
GETA ASFAW,
MAYUKO FIEWEGER, and
DANIEL S. WARD, as members of the Colorado Civil Rights Commission, in their
official capacities, and
PHILIP J. WEISER, Colorado Attorney General, in his official capacity,
Defendants.
ORDER
This matter comes before the Court on the Order and Judgment of the Tenth
Circuit [Docket No. 100], which remanded the case to the Court for further proceedings
consistent with the Supreme Court’s decision in this case. Docket No. 100 at 4. On
November 7, 2023, the Court held a status conference in this case. Docket No. 112.
Pursuant to the Court’s directive, id. at 2, plaintiffs have filed a brief in support of their
position on the wording of the final judgment and as to whether plaintiffs are the
prevailing party for purposes of an award of attorneys’ fees and costs, Docket No. 119,
and defendants have filed a brief on the same issues. Docket No. 120.

I. BACKGROUND 1
Plaintiff Lorie Smith, through her business, plaintiff 303 Creative LLC (“303
Creative”), offers a variety of creative services, including website design, to the public.
Docket No. 49 at 8, ¶ 45. Ms. Smith intends to expand the scope of 303 Creative’s
services to include the design, creation, and publication of wedding websites. Id. at 12,
¶ 77. However, plaintiffs will decline any request to design, create, or promote content
that promotes any conception of marriage other than marriage between one man and
one woman. Id. at 11, ¶ 66. Plaintiffs have designed an addition to 303 Creative’s
website that includes a statement that they will not create websites “celebrating samesex marriages or any other marriage that contradicts God’s design for marriage.” Id. at
13-14, ¶¶ 86, 90.
On September 20, 2016, plaintiffs filed a lawsuit seeking to prevent defendants
from applying certain provisions of the Colorado Anti Discrimination Act (“CADA”) to 303
Creative’s business. Docket No. 1 at 59-60, ¶¶ 1, 3. CADA contains two provisions
relevant to this action: the Accommodations Clause and the Communication Clause.
The Accommodations Clause prohibits all “public accommodation[s]” from denying “the
full and equal enjoyment” of their goods and services to any customer on the basis of
sexual orientation. Colo. Rev. Stat. § 24-34-601(2)(a). The Communication Clause
prohibits all “public accommodation[s]” from communicating that an individual will be
denied the “full and equal enjoyment” of their goods and services or that an individual’s
patronage is unwelcome on the basis of sexual orientation. Id. The complaint brings

The following facts are drawn from the parties’ Joint Statement of Stipulated
Facts. Docket No. 49.
1

2

five claims: (1) violation of the First Amendment’s free speech and free press clauses;
(2) violation of the First Amendment right to free exercise of religion; (3) violation of the
Fourteenth Amendment right to equal protection; (4) violation of the Fourteenth
Amendment right to due process; and (5) violation of the Fourteenth Amendment right
to substantive due process and equal protection challenge to denial of religious identity,
personal dignity, personal autonomy, and personal liberty. Docket No. 1 at 29-59,
¶¶ 205-399.
The complaint seeks the following relief: (1) a preliminary and permanent
injunction to stop defendants from enforcing the Communications Clause “facially, and
as-applied to Plaintiffs’ desired communications [ ] promoting marriage exclusively as an
institution between one man and one woman, [ ] declining to create websites or
graphics promoting events or ideas that violate their beliefs about marriage, such as
websites for same-sex weddings, and [ ] explaining their religious beliefs about what
they can and cannot create;” (2) a preliminary and permanent injunction to stop
defendants from enforcing the Accommodations Clause by requiring plaintiffs to “create
websites or graphics promoting events or ideas that violate their beliefs that marriage
should only be an institution between one man and one woman, such as websites
promoting same-sex weddings;” and (3) a declaratory judgment that the
Communications Clause and Accommodations Clause violate the First and Fourteenth
Amendments facially and as applied to plaintiffs. Id. at 59-60, ¶¶ 1-4.
On September 1, 2017, Judge Marcia S. Krieger granted defendants’ motion to
dismiss in part, dismissing plaintiffs’ claims for lack of standing insofar as they apply to
the Accommodations Clause. Docket No. 52 at 12-13. On May 17, 2019, Judge

3

Kreiger denied a motion for summary judgment 2 by plaintiffs on the merits of plaintiffs’
claims insofar as they apply to the Communications Clause. Docket No. 72 at 26. On
September 26, 2019, Judge Krieger granted summary judgment in favor of defendants.
Docket No. 79 at 8. On October 25, 2019, plaintiffs appealed these orders to the Tenth
Circuit Court of Appeals. Docket No. 81.
On July 26, 2021, the Tenth Circuit reversed the district court’s finding that
plaintiffs lacked standing to challenge the Accommodations Clause. 303 Creative LLC
v. Elenis, 6 F.4th 1160, 1175 (10th Cir. 2021), reversed on other grounds, 600 U.S. 570
(2023). The Tenth Circuit found that plaintiffs had demonstrated an injury in fact that
was sufficient to sustain a pre-enforcement challenge of CADA because plaintiffs
showed that they intended to discriminate in a manner that is arguably proscribed by
CADA by “excluding customers who celebrate same-sex marriages” and that they had a
credible fear that Colorado would enforce CADA against businesses that object to
same-sex marriage. Id. at 1171-75. Nevertheless, after considering the merits of
plaintiffs’ claims, the court affirmed Judge Kreiger’s grant of summary judgment in favor
of defendants on all of plaintiffs’ claims. Id. at 1190.
Plaintiffs appealed the Tenth Circuit’s decision to the Supreme Court, which
granted certiorari limited to the following question: “Whether applying a publicaccommodation law to compel an artist to speak or stay silent violates the Free Speech
Clause of the First Amendment.” 303 Creative LLC v. Elenis, 142 S. Ct. 1106 (2022)
(memorandum). The Supreme Court reversed the Tenth Circuit’s judgment as to this

This order also denied plaintiffs’ motion for a preliminary injunction on the basis
that plaintiffs had not demonstrated a likelihood of success on the merits. Docket No.
72 at 5 n.4.
2

4

question. 303 Creative, 600 U.S. at 603. It found that compelling plaintiffs to create
custom websites celebrating same-sex marriages would violate the First Amendment.
Id. at 588, 602-03.
On August 14, 2023, plaintiffs filed a Motion for Attorneys’ Fees and Costs and
for an Extension of Filing Deadline. Docket No. 96. This motion asks the Court to issue
an order (1) declaring plaintiffs the prevailing parties in this litigation; (2) declaring that
plaintiffs are entitled to an award of attorneys’ fees, expenses, and costs incurred during
this litigation, and (3) granting an extension of time from the date of final judgment for
plaintiffs to file a motion for attorney fees and bill of costs. Id. at 1-2. On August 31,
2023, the Tenth Circuit remanded the case to this Court for further proceedings
consistent with the Supreme Court’s decision. Docket No. 100 at 4. The Tenth Circuit’s
mandate issued on September 22, 2023. Docket No. 103.
The Court held a status conference on November 7, 2023, at which the Court
ordered the parties to submit a joint recommendation as to the proposed language for
final judgment or, if the parties were unable to agree on proposed language, to submit a
proposed schedule to brief each side’s position on the final judgment language. Docket
No. 112 at 2. On December 6, 2023, the parties filed a joint notice indicating that they
were unable to agree on proposed language for the final judgment and suggesting a
briefing schedule, Docket No. 116 at 1-2, which the Court adopted. Docket No. 117.
II. ANALYSIS
The parties’ proposed final judgment language differs in three respects: (1) the
language granting permanent injunctions in favor of plaintiffs; (2) the language of the
declaratory judgment; and (3) the language declaring plaintiffs the prevailing parties and

5

awarding plaintiffs attorney’s fees. Compare Docket No. 119-1 at 2-3, ¶¶ 1-4, with
Docket No. 120-1 at 2-3, ¶¶ 1-4.
A. Permanent Injunction Language
The parties’ proposed language for the permanent injunction differs with regard
to both the Accommodation Clause and the Communication Clause. Compare Docket
No. 119-1 at 3, ¶ 3, with Docket No. 120-1 at 3, ¶ 3. The Court will address the parties’
arguments regarding each clause separately.
1. Accommodations Clause
Plaintiffs propose the following language to enjoin Colorado from enforcing the
Accommodations Clause against them:
The Court permanently enjoins Defendants, their officers, agents,
servants, employees, attorneys, and those acting in active concert or
participation with them who receive actual notice of this order from
enforcing:
a. CADA’s Accommodations Clause (C.R.S. § 24–34–601(2)(a)) to
compel Smith 3 to create custom websites celebrating or depicting
same-sex weddings or otherwise expressing messages
inconsistent with her beliefs; . . .
Docket No. 119-1 at 3, ¶ 3.a. (footnote and emphasis added). Defendants propose the
following language:
The Court permanently enjoins Defendants, their officers, agents,
servants, employees, attorneys, and those acting in active concert or
participation with them who receive actual notice of this order from
enforcing:
a. CADA’s Accommodations Clause (C.R.S. § 24–34–601(1)) to
compel Smith to create custom websites celebrating or depicting
same-sex weddings or otherwise to create or depict original,

The parties refer to Ms. Smith and 303 Creative collectively as “Smith.” Docket
No. 119-1 at 2; Docket No. 120-1 at 2.
3

6

expressive, graphic or website designs inconsistent with her beliefs
regarding same-sex marriage; . . .
Docket No. 120-1 at 3, ¶ 3.a. (emphasis added).
Plaintiffs argue that defendants should be enjoined from compelling plaintiffs to
create custom websites “otherwise expressing messages inconsistent with [Ms. Smith’s]
beliefs” because “the Supreme Court emphasized that the First Amendment isn’t limited
to wedding websites—it applies to all speech” and “[t]hat same logic extends to
[plaintiffs’] other custom websites.” Docket No. 119 at 2. Plaintiffs also argue that
defendants’ legal position throughout the proceedings, namely, that defendants
“claimed the authority” to compel plaintiffs to provide custom websites for anyone
regardless of the message “justifies relief beyond wedding websites.” Id. at 3.
Defendants respond that plaintiffs’ “proposed language would greatly expand the
Supreme Court’s holding because [they have] not met the threshold requirements for an
injunction for matters other than the subject of this lawsuit: same-sex wedding
websites.” Docket No. 120 at 2. Defendants argue that including the phrase “or
otherwise expressing messages inconsistent with her beliefs” “extends beyond the
stipulated facts and the credible threat that the Supreme Court relied on to establish
jurisdiction.” Id. at 5.
The Court will first take up the issue of whether the language “otherwise
expressing messages inconsistent with her beliefs,” see Docket No. 119-1 at 3, ¶ 3.a.,
is so broad that it would extend the judgment beyond the Supreme Court’s standing
analysis. 4 “Article III of the Constitution limits the jurisdiction of federal courts to ‘Cases’

Plaintiffs argue that “Federal Rule of Civil Procedure 54(c) authorizes this Court
to grant Smith relief she ‘has not demanded . . . in [her] pleadings’ so long as she is
4

7

and “Controversies.’” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157 (2014)
(quoting U.S. Const., Art. III, § 2.) “The doctrine of standing gives meaning to these
constitutional limits by identifying those disputes which are appropriately resolved
through the judicial process.” Id. (quotations, citation, and alteration omitted). To
establish Article III standing, a plaintiff must allege “that (1) he or she has suffered an
injury in fact; (2) there is a causal connection between the injury and the conduct
complained of; and (3) it is likely that the injury will be redressed by a favorable
decision.” Ward v. Utah, 321 F.3d 1263, 1266 (10th Cir. 2003) (quoting Phelps v.
Hamilton, 122 F.3d 1309, 1326 (10th Cir. 1997)). In order to show the first element of
standing, a plaintiff must show she has “suffered an injury in fact – an invasion of a
legally protected interest which is (a) concrete and particularized, and (b) actual or
imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555,
560-61 (1992); see also Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016) (“Injury in fact
is a constitutional requirement.”).
Where, as here, a plaintiff seeks prospective relief such as an injunction, “the
plaintiff must be suffering a continuing injury or be under a real and immediate threat of
being injured in the future.” Tandy v. City of Wichita, 380 F.3d 1277, 1283 (10th Cir.
2004). “The threatened injury must be certainly impending and not merely speculative.”
Id. (quotations and citation omitted). In some narrow circumstances, a plaintiff may
seek prospective relief for a law she fears may be enforced against her in the future.

‘entitled’ to it.” Docket No. 121 at 2 (quoting Fed. R. Civ. P. 54(c)). Plaintiffs are only
entitled to injunctive relief that they have established standing to pursue. See U.S.
Const., Art. III, § 2. Therefore, in order to determine what relief the Court is authorized
to grant plaintiffs under Rule 54(c), the Court must first analyze standing.
8

See, e.g., Bronson v. Swensen, 500 F.3d 1099, 1108-09 (10th Cir. 2007). Consistent
with the usual standing requirements described above, courts have held that, for a
threat of enforcement to be sufficient for Article III injury, a plaintiff must allege “an
intention to engage in a course of conduct arguably affected with a constitutional
interest, but proscribed by a statute, and there exists a credible threat of prosecution
thereunder.” Susan B. Anthony List, 573 U.S. at 159 (quoting Babbitt v. United Farm
Workers Nat’l Union, 442 U.S. 289, 298 (1979)).
The Tenth Circuit found that plaintiffs had established standing to raise a preenforcement challenge to the Accommodations Clause. 5 303 Creative, 6 F.4th at 1175.
The court also found that plaintiffs demonstrated a “credible fear of prosecution,” and
thus established an injury in fact, because “the manner they intend to operate—
excluding customers who celebrate same-sex marriages” —would render them liable
under CADA and defendants’ prior conduct created “a credible fear that CADA will be
enforced against businesses that object to same-sex marriage.” Id. at 1171-75. This
was the only grounds on which the Tenth Circuit found that plaintiffs had established
standing. 6 The Supreme Court noted that the Tenth Circuit had found that plaintiffs

Judge Kreiger found that plaintiffs had standing to challenge the
Communications Clause. Docket No. 52 at 9. The Tenth Circuit, however, discussed
standing solely in regard to the Accommodations Clause because plaintiffs only
challenged Judge Kreiger’s ruling that they lacked standing with regard to that clause.
303 Creative, 6 F.4th at 1170-71.
6 Moreover, the parties’ joint statement of stipulated facts does not contain facts
that would establish standing to raise a pre-enforcement challenge based on plaintiffs’
intended course of action unrelated to same-sex wedding websites. Although the joint
statement states that “Plaintiffs will decline any request to design, create, or promote
content that: contradicts biblical truth; demeans or disparages others; promotes sexual
immorality; supports the destruction of unborn children; [or] incites violence,” Docket No.
49 at 11, ¶ 66, it includes no facts indicating that defendants previously enforced CADA
against businesses that refused to design, create, or promote content concerning these
5

9

“had established a credible threat that, if [Ms. Smith] follows through on her plans to
offer wedding website services, Colorado will invoke CADA to force her to create
speech she does not believe or endorse,” but the Supreme Court did not take up the
question of standing because no party challenged the Tenth Circuit’s conclusion
concerning standing. 303 Creative, 600 U.S. at 583. Thus, although the Supreme
Court’s consideration of the First Amendment rights at issue discussed a state’s ability
to compel speech in broad terms, see, e.g., id. at 592 (“When a state public
accommodations law and the Constitution collide, there can be no question which must
prevail.”) (citation omitted), the Tenth Circuit’s finding on plaintiffs’ standing remains
undisturbed.
Under the Tenth Circuit’s ruling, plaintiffs have established standing to challenge
the constitutionality of the Accommodations Clause insofar as defendants would enforce
it by compelling plaintiffs to create websites depicting or celebrating same-sex
weddings. 303 Creative, 6 F.4th at 1175. Therefore, the Court will enjoin defendants
from enforcing Accommodation Clause to compel plaintiffs to create custom websites
celebrating or depicting same-sex weddings or otherwise expressing messages
inconsistent with Ms. Smith’s beliefs concerning same-sex marriage.
2. Communication Clause
Plaintiffs propose the following language to enjoin defendants from enforcing the
Communication Clause against them:
The Court permanently enjoins Defendants, their officers, agents,
servants, employees, attorneys, and those acting in active concert or
topics. Therefore, plaintiffs have not demonstrated a credible fear that CADA will be
enforced against plaintiffs if they refuse to design, create, or promote content
concerning such issues.
10

participation with them who receive actual notice of this order from
enforcing: . . .
b. CADA’s Communication Clause (C.R.S. § 24–34–601(2)(a)) to
prevent Smith from posting the [proposed statements] 7 on her website
and from making materially similar statements on her website and
directly to prospective clients.
Docket No. 119-1 at 3, ¶ 3.b. (emphasis and footnote added). Defendants propose the
following language:
The Court permanently enjoins Defendants, their officers, agents,
servants, employees, attorneys, and those acting in active concert or
participation with them who receive actual notice of this order from
enforcing: . . .
b. CADA’s Communication Clause (C.R.S. § 24–34–601(2)(a)) to
prevent Smith from posting the [Proposed Statements] on her website
and from making materially similar statements regarding the effect
of her beliefs on the expressive, graphic or website design
services she offers on her website and directly to prospective clients.

7

The proposed statements state:
I firmly believe that God is calling me to this work. Why? I am
personally convicted that He wants me – during these uncertain
times for those who believe in biblical marriage – to shine His
light and not stay silent. He is calling me to stand up for my
faith, to explain His true story about marriage, and to use the
talents and business He gave me to publicly proclaim and
celebrate His design for marriage as a life-long union between
one man and one woman.
These same religious convictions that motivate me also prevent
me from creating websites promoting and celebrating ideas or
messages that violate my beliefs. So I will not be able to create
websites for same-sex marriages or any other marriage that is
not between one man and one woman. Doing that would
compromise my Christian witness and tell a story about
marriage that contradicts God’s true story of marriage – the very
story He is calling me to promote.

Docket No. 119-1 at 2, ¶ 2; see also Docket No. 120-1 at 2-3, ¶ 2.
11

Docket No. 120-1 at 3, ¶ 3.b. (emphasis added).
Because any materially similar statement to the Proposed Statements would
discuss the effect of Ms. Smith’s beliefs on the website design services she offers, the
Court will not adopt the portion of defendants’ proposed language referencing “the
effect of [Ms. Smith]’s beliefs on the . . . website design services she offers” because it
would be redundant. See Docket No. 120-1 at 3, ¶ 3.b.
Furthermore, plaintiffs’ standing to challenge the Communication Clause is based
on the Proposed Statement that was included in the parties’ joint statement of stipulated
facts. Judge Krieger found that plaintiffs had standing to challenge the Communication
Clause because, once the plaintiffs posted the Proposed Statement to the 303 Creative
website, “they arguably will have violated the Communication Clause” and defendants
have no discretion not to enforce the statute. Docket No. 52 at 9. Judge Kreiger’s
finding was not challenged before the Tenth Circuit or the Supreme Court. See 303
Creative, 6 F.4th at 1170-71; 303 Creative, 600 U.S. at 583. Because standing was
based on the Proposed Statements and the Proposed Statements concern only the
effect of Ms. Smith’s beliefs on the website design services she offers, the Court will not
include defendant’s proposed language referencing expressive and graphic design
services in its order.
The final judgment will adopt defendants’ proposed language with regard to the
Accommodation Clause and plaintiffs’ proposed language with regard to the
Communication Clause.

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B. Declaratory Judgment Language
The parties’ disagreements concerning the declaratory judgment language in the
final judgment mirror their disagreements concerning the permanent injunction
language. Plaintiffs propose the following language:
The Court declares that the First Amendment’s Free Speech Clause
prohibits Colorado from enforcing the Accommodation Clause (C.R.S.
§ 24–34–601(2)(a)) of Colorado’s Anti-Discrimination Act (“CADA”) to
compel Smith to create custom websites celebrating or depicting samesex weddings or otherwise expressing messages inconsistent with
her beliefs.
The Court declares that the First Amendment’s Free Speech Clause
prohibits Colorado from enforcing CADA’s Communication Clause (C.R.S.
§ 24–34–601(2)(a)) to prevent Smith from posting the following statement
on her website or from making materially similar statements on her
website and directly to prospective clients:
I firmly believe that God is calling me to this work. Why? I am
personally convicted that He wants me – during these uncertain
times for those who believe in biblical marriage – to shine His
light and not stay silent. He is calling me to stand up for my faith,
to explain His true story about marriage, and to use the talents
and business He gave me to publicly proclaim and celebrate His
design for marriage as a life-long union between one man and
one woman.
These same religious convictions that motivate me also prevent
me from creating websites promoting and celebrating ideas or
messages that violate my beliefs. So I will not be able to create
websites for same-sex marriages or any other marriage that is
not between one man and one woman. Doing that would
compromise my Christian witness and tell a story about marriage
that contradicts God’s true story of marriage – the very story He
is calling me to promote.
Docket No. 119-1 at 2, ¶¶ 1-2 (emphasis added). Defendants propose the
following language for the declaratory judgments:
The Court declares that the First Amendment’s Free Speech Clause
prohibits Colorado from enforcing the Accommodation Clause (C.R.S. §
24–34– 601(2)(a)) of Colorado’s Anti-Discrimination Act (“CADA”) to
13

compel Smith to create custom websites celebrating or depicting samesex weddings or otherwise create or depict original, expressive,
graphic or website designs inconsistent with her beliefs regarding
same-sex marriage.
The Court declares that the First Amendment’s Free Speech Clause
prohibits Colorado from enforcing CADA’s Communication Clause (C.R.S.
§ 24–34– 601(2)(a)) to prevent Smith from posting the following statement
on her website or from making materially similar statements regarding
the effect of her beliefs on the expressive, graphic or website design
services she offers on her website and directly to prospective clients:
I firmly believe that God is calling me to this work. Why? I am
personally convicted that He wants me – during these uncertain
times for those who believe in biblical marriage – to shine His
light and not stay silent. He is calling me to stand up for my
faith, to explain His true story about marriage, and to use the
talents and business He gave me to publicly proclaim and
celebrate His design for marriage as a life-long union between
one man and one woman.
These same religious convictions that motivate me also prevent
me from creating websites promoting and celebrating ideas or
messages that violate my beliefs. So I will not be able to create
websites for same-sex marriages or any other marriage that is
not between one man and one woman. Doing that would
compromise my Christian witness and tell a story about
marriage that contradicts God’s true story of marriage – the very
story He is calling me to promote.
Docket No. 120-1 at 2-3, ¶¶ 1-2 (emphasis added).
The final judgment will adopt defendants’ proposed language with regard to the
Accommodation Clause and plaintiffs’ proposed language with regard to the
Communication Clause.
C. Prevailing Party and Attorney’s Fees Language
Plaintiffs propose the following language declaring plaintiffs the prevailing party
and awarding attorney’s fees:

14

Smith is the prevailing party in this action under 42 U.S.C. § 1988(b). She
and her counsel are entitled to recover their reasonable attorney’s fees,
costs, and expenses for work done at all stages of this litigation.
Docket No. 119-1 at 3, ¶ 4. Defendants propose the following language:
Smith is the prevailing party in this action under 42 U.S.C. § 1988(b) as to
her as-applied First Amendment claim for which certiorari was
granted. She and her counsel are entitled to recover their reasonable
attorney’s fees, costs, and expenses for work done pertaining to that
claim at all stages of this litigation.
Docket No. 120-1 at 3-4, ¶ 4 (emphasis added).
Section 1988(b) of Title 42 permits the “prevailing party, other than the United
States” in a civil rights action to receive an award of reasonable attorney’s fees. 42
U.S.C. § 1988(b). The Supreme Court has held that “plaintiffs may be considered
‘prevailing parties’ for attorney’s fees purposes if they succeed on any significant issue
in litigation which achieves some of the benefit the parties sought in bringing suit.”
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (quoting Nadueau v. Helgemoe, 581
F.2d 275, 278-79 (1st Cir. 1978)). The Tenth Circuit has observed that “many civil
rights suits involve multiple claims based on ‘a common core of facts or related legal
theories,’” holding that, in “such cases, it is inappropriate for a district court to evaluate
the individual claims as though they were discrete and severable.” Robinson v. City of
Edmond, 160 F.3d 1275, 1283 (10th Cir. 1998) (quoting Hensley, 461 U.S. at 435)
(alteration omitted). Accordingly, if the court’s disposition on one of plaintiff’s claims
“achieved plaintiff[’s] primary purpose in bringing . . . litigation,” the plaintiff is entitled to
attorneys fees related to the successful claim and to any unsuccessful claims that put
forth alternative arguments to achieve the same end as the successful claim. Jane L. v.
Bangerter, 61 F.3d 1505, 1512 (10th Cir. 1995) (holding that plaintiffs were entitled to

15

attorneys fees related to their unsuccessful claims because the “plaintiffs’ successful
due process claim was related to their unsuccessful alternative claims made in support
of the argument against the same statutory provision”); see also Robinson, 160 F.3d at
1283 (“when a plaintiff achieves the principal goal of her lawsuit, lack of success on
some of her interrelated claims may not be used as a basis for reducing the plaintiff’s
fee award”). Plaintiffs “can argue alternative legal theories without being penalized at
the attorneys fees stage if the court only adopts one of the theories.” Jane L., 61 F.3d
at 1512.
Here, each of plaintiffs’ claims presents an alternative legal theory designed to
challenge the constitutionality of CADA’s Accommodation Clause and Communication
Clause as applied to plaintiffs. See Docket No. 1 at 29-59, ¶¶ 205-399. Plaintiffs’
complaint seeks injunctions preventing defendants from enforcing the Communications
Clause and Accommodations Clause against them and declaratory judgments that
these clauses are unconstitutional. See id. at 59-60, ¶¶ 1-4. Plaintiffs argue that, “[w]ith
the entry of judgment, [plaintiffs] will obtain the relief [they] sought—to prevent Colorado
from compelling [Ms. Smith to] speak views she disagrees with and from restricting her
speech explaining her beliefs.” Docket No. 119 at 5. The Court agrees. The Court
finds that plaintiffs’ success on their first cause of action precludes the reduction of
attorneys fees because plaintiffs’ other causes of action were dismissed. See
Robinson, 160 F.3d at 1283; Bangerter, 61 F.3d at 1512. The Court’s amended final
judgment will state that plaintiffs are the prevailing parties in this action and are
therefore entitled to attorney’s fees and costs.

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III. CONCLUSION
Therefore, it is
ORDERED that the Opinion and Order Granting Summary Judgment [Docket No.
79] and the Final Judgment [Docket No. 80] are VACATED as to plaintiffs’ first cause of
action. It is further
ORDERED that the Clerk of the Court shall amend the judgment entered on
September 26, 2019 [Docket No. 80] in accordance with this order. It is further
ORDERED that the amended final judgment shall include the following language:
It is ORDERED that plaintiffs are the prevailing parties in this action under
42 U.S.C. § 1988(b). Plaintiffs and their counsel are entitled to recover
their reasonable attorney’s fees, costs, and expenses for work related to
litigation before the district court. It is further
ORDERED that the First Amendment’s Free Speech Clause prohibits
Colorado from enforcing the Accommodation Clause of Colorado’s AntiDiscrimination Act (“CADA”), Colo. Rev. Stat. § 24-34- 601(2)(a)), to
compel plaintiffs to create custom websites celebrating or depicting
same-sex weddings or otherwise create or depict original, expressive,
graphic or website designs inconsistent with her beliefs regarding samesex marriage. It is further
ORDERED that the First Amendment’s Free Speech Clause prohibits
Colorado from enforcing CADA’s Communication Clause to prevent
plaintiffs from posting the following statement on her website or from
making materially similar statements on her website and directly to
prospective clients:
I firmly believe that God is calling me to this work. Why? I am
personally convicted that He wants me – during these
uncertain times for those who believe in biblical marriage –
to shine His light and not stay silent. He is calling me to
stand up for my faith, to explain His true story about
marriage, and to use the talents and business He gave me
to publicly proclaim and celebrate His design for marriage as
a life-long union between one man and one woman.
These same religious convictions that motivate me also
prevent me from creating websites promoting and
17

celebrating ideas or messages that violate my beliefs. So I
will not be able to create websites for same-sex marriages or
any other marriage that is not between one man and one
woman. Doing that would compromise my Christian witness
and tell a story about marriage that contradicts God’s true
story of marriage – the very story He is calling me to
promote.
It is further
ORDERED that defendants, their officers, agents, servants, employees,
attorneys, and those acting in active concert or participation with them
who receive actual notice of this order are permanently enjoined from
enforcing:
a. CADA’s Accommodations Clause to compel plaintiffs to create
custom websites celebrating or depicting same-sex weddings or
otherwise to create or depict original, expressive, graphic or
website designs inconsistent with her beliefs regarding same-sex
marriage; and
b. CADA’s Communication Clause to prevent plaintiffs from posting
the above statement on her website and from making materially
similar statements on her website and directly to prospective
clients.
It is further
ORDERED that plaintiffs may file a bill of costs and motion for attorney’s fees in
compliance with D.C.COLO.LCivR 54.3 within 90 days of the entry of final judgment. It
is further
ORDERED that the Court will retain jurisdiction over this action for purposes of
determining and entering an award for attorney’s fees and costs. It is further

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ORDERED that plaintiffs’ Motion for Attorneys’ Fees and Costs and for an
Extension of Filing Deadline [Docket No. 96] is DENIED as moot.
DATED March 26, 2024.
BY THE COURT:
___________________________
PHILIP A. BRIMMER
Chief United States District Judge

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