From 'hate state' to pioneer, Colorado has another LGBTQ+ case at Supreme Court

In the previous two cases, the high court sided with a web developer and a baker who refused to serve same-sex couples.Show Caption

Colorado, a pioneering beacon for gay rights that has also been vilified as the "hate state," is in the rainbow spotlight again as the Supreme Court hears its third case from the state dealing with LGBTQ+ issues in seven years.In recent years, the high court sided with a website developer and a cake baker who opposed providing certain services to gay customers because of their religious beliefs.On Oct. 7, the justices will be hearing arguments that the state’s ban on providing conversion therapy to LGBTQ+ children under 18 violates a private therapist's rights to free speech.The Minor Conversion Therapy Law defined conversion therapy as "any practice or treatment" that attempts "to change an individual's sexual orientation or gender identity." The prohibited therapy could include "efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction or feeling toward individuals of the same sex."Free speech versus regulating healthcareLawyers for therapist Kaley Chiles argued the state law represents "a sharp break from historical counseling regulations" and violates her First Amendment right to express her Christian views "on a topic of 'fierce public debate.'""When Chiles counsels young people with gender dysphoria, Colorado allows her to speak if she helps them embrace a transgender identity," her lawyers wrote in a filing. "But if those clients choose to align their sense of identity with their sex by growing comfortable with theirbodies, Chiles must remain silent or risk losing her license, her livelihood, and the career she loves."State Attorney General Philip Weiser, a Democrat, said the 2019 law bars conversion therapy aimed at changing a child's sexual orientation or gender identity. But he said that counselors were still free to speak about the treatment and criticize the state's ban.The law's prohibition is narrower than what Chiles describes, Weiser said in his response.“Colorado’s law prohibits licensed professionals from performing conversion therapy on minor patients,” Weiser's filing said. If the court agrees with Chiles, it “would gut states’ power to ensure mental healthcare professionals comply with the standard of care.”Colorado sees extremes over gay rightsColorado has been a pioneering state for gay rights but also became known as the “hate state” for opposition to those protections.In March 1975, two men were granted a marriage license in Boulder County, marking what may have been the first documented time the U.S. granted a same-sex marriage license. That was 40 years before the Supreme Court upheld the right to gay marriage in an Ohio case.But in 1992, the state approved a ballot measure that sought to block any legislation that would protect people based on their “homosexual, lesbian or bisexual orientation, conduct, practices or relationships.” The U.S. Supreme Court struck down the measure in 1996 by ruling it had no “identifiable legitimate purpose” and appeared “born of animosity.”In 2018, Colorado Gov. Jared Polis became the country's first openly gay man elected governor. He signed the conversion-therapy law at stake in the latest Supreme Court case in May 2019.“In just 27 years, we’ve had a remarkable transformation from what was derogatorily called the ‘hate state’ to a place where the rights of all Coloradans are respected,” Polis said, according to NPR.But animosity remained. Five people were shot to death and more than a dozen were wounded at Club Q, an LGBTQ+ club in Colorado Springs, in November 2022. Anderson Lee Aldrich was sentenced to life in prison after pleading guilty to murdering five people, injuring 19, attempting to murder 26, hate crimes and firearms charges.Supreme Court previously sided with web designer in discrimination complaintThe Supreme Court has sided with two Colorado business owners in recent years, in cases arguing the state's anti-discrimination laws infringed on their free speech or exercise of religion.In June 2023, the high court sided with web designer Lorie Smith, who wanted her business, 303 Creative LLC, to have the freedom to decline to create websites for same-sex weddings because of her religious beliefs.She had worried the Colorado Anti-Discrimination Act would compel her to create websites for marriages she didn't endorse, so she filed a lawsuit to block the statute."As surely as Ms. Smith seeks to engage in protected First Amendment speech, Colorado seeks to compel speech Ms. Smith does not wish to provide,” Justice Neil Gorsuch wrote for the 6-3 majority, comparing the law to forcing a Muslim director to make a film with a Zionist message. “Taken seriously, that principle would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty.”Justice Sonia Sotomayor wrote a scathing dissent. She said a majority of the court agreed that the First Amendment shields the business from laws prohibiting discrimination in selling goods and services."That is wrong,” Sotomayor wrote. “Profoundly wrong."Baker absolved of discrimination because state exhibited 'hostility': KennedyIn June 2018, the high court cleared a Colorado baker of discrimination for refusing to create a custom wedding cake for a same-sex couple, ruling the state law exhibited religious "hostility” against him.Justice Anthony Kennedy wrote the 7-2 decision against the same-sex couple, Charlie Craig and Dave Mullins, despite his long history of writing opinions in favor of gay rights. Kennedy had previously written the 2015 landmark decision legalizing gay marriage nationwide and the 1996 decision in the Colorado case about the ballot measure.Kennedy acknowledged that business owners generally cannot deny gay people equal access to goods and services. But he noted that the baker in the case, Jack Phillips of Masterpiece Cakeshop, turned down the same-sex couple in 2012, before Colorado had recognized gay marriage.The high-court majority ruled that the state Civil Rights Commission, where the couple brought their complaint, compromised the case with "clear and impermissible hostility toward the sincere religious beliefs motivating" the baker's objection."The outcome of cases like this in other circumstances must await further elaboration in the courts," Kennedy wrote for the court. "These disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”That long-awaited decision didn’t resolve whether other opponents of same-sex marriage, including bakers, florists, photographers and videographers, could refuse commercial wedding services to gay couples.