Colorado Attorney General Phil Weiser and U.S. Department of Transportation Secretary Pete Buttigieg announced a partnership that will streamline airline consumer complaints on April 16, 2024 at Denver International Airport. (Lindsey Toomer/Colorado Newsline)

Policy, politics and progressive commentary

A new partnership between the U.S. Department of Transportation and a bipartisan coalition of state attorneys general aims to streamline efforts to resolve airline consumer complaints.

Colorado Attorney General Phil Weiser and Transportation Secretary Pete Buttigieg announced the program at Denver International Airport Tuesday. The program comes in response to the record numbers of airline customer complaints their offices are fielding.

“It’s very important for passengers to know that they’re getting a fair deal and for airlines to know that they will be held accountable if they don’t fulfill their end of the bargain,” Buttigieg said. “The support that’s being offered by the state attorney generals offices means that our capacity to protect airline passengers is expanded.”

Historically, the federal DOT has been solely responsible for resolving complaints and enforcing protections for airline consumers. Now, for the 25 states and territories that agreed to participate, their attorney general will take complaints and attempt to resolve them with the company and the consumer. If necessary, the attorney general will refer the complaint to the DOT’s Office of Aviation Consumer Protection.

“We’re going to hold accountable companies who are breaking the law and undermine travel experience and we’re going to make sure to send an important message: Consumers have rights, they deserve to be treated fairly,” Weiser said. “This enforcement is going to encourage and enable and reward responsible companies who follow the rules. That is the way it should be.”

The agreement between Colorado and the DOT will last for two years, and both parties will have the option to extend the agreement if necessary. Buttigieg said states have been receiving increased airline-related complaints, particularly following the pandemic, but prior to this agreement they weren’t able to help other than by directing consumers to the DOT.

Weiser said that prior to the agreement, if his office received complaints about an airline, it could only pass the complaint along to the DOT, and wouldn’t receive updates on whether the issues were resolved. Now his office will have a direct line of communication to make sure complaints from Colorado are properly handled.

Buttigieg said the Office of Aviation Consumer Protection has a team of about three dozen people who have to sort through tens of thousands of complaints. He said this partnership will help that team process complaints more quickly and efficiently.

“This partnership is new, but really it has roots in the responsibilities of the federal government to protect airline passengers that go back at least to the Civil Aeronautics Act of 1938, which was signed into law by President Franklin Roosevelt,” Buttigieg said. “After the deregulation that replaced that framework, it became even more important for us to be proactive with guardrails to make sure that people are treated fairly by airlines.”

Others that signed an agreement with the DOT include California, Connecticut, the District of Columbia, Illinois, Maine, Maryland, Michigan, Nevada, New York, New Hampshire, North Carolina, the Northern Mariana Islands, Oklahoma, Pennsylvania, Rhode Island, the U.S. Virgin Islands, and Wisconsin. States that have expressed their intent to participate include Delaware, Massachusetts, Minnesota, Oregon, Tennessee, Vermont, and Washington.

Buttigieg said he could see the program going nationwide, given that it already has bipartisan support and that there are airline consumers “who need that support in every state and territory.” Weiser said he would encourage other state attorneys general to participate as well.

This story was originally published in Colorado Newsline, which like Nevada Current, is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity.

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Lorie Smith, the owner of 303 Creative, a website design company in Colorado, speaks with supporters outside of the U.S. Supreme Court Building on Dec. 5, 2022, in Washington, DC. The U.S. Supreme Court ruled in her favor Friday. (Anna Moneymaker/Getty Images)

Policy, politics and progressive commentary

Colorado cannot compel a website designer to create custom sites for same-sex couples, the U.S. Supreme Court ruled in an opinion released Friday.

The 6-3 ruling, written by Justice Neil Gorsuch, came in 303 Creative v. Elenis. Plaintiff Lorie Smith argued the Colorado Anti-Discrimination Act, which prohibits discrimination based on sexual orientation, violates her constitutional right to free speech.  She believes, based on her religion, that marriage should be between one man and one woman, and therefore she does not want to create wedding websites that feature her own original content for same-sex couples.

Aubrey Elenis, who is named as a defendant, is the director of the Colorado Civil Rights Division.

“The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees,” the court said.

Colorado Attorney General Phil Weiser, during a Friday news conference at the Ralph L. Carr Colorado Judicial Center in Denver, cast the ruling as an extreme shift that will allow all sorts of businesses to discriminate against many different communities.

“Today’s decision in 303 Creative permits businesses to turn away customers because of who they are,” Weiser said. “Based on the claimed ‘expressive’ interest, this radical opinion is far out of step of the will of the American people and our values as Americans. It is a significant departure from decades of established cases that all uphold the principle that our nation is committed to equal justice for all.”

Smith argued that creating the kind of websites she envisions is a form of speech, while the defendants argued it’s a service, and therefore “public accommodation” laws apply. Smith’s team said during oral arguments in December that the anti-discrimination law constitutes compelled speech in Smith’s case, meaning she would be forced to convey messages against her personal beliefs.

The court’s opinion says that while many states’ public accommodations laws have extended to cover most forms of business operations, “no public accommodations law is immune from the demands of the Constitution,” and therefore cannot compel speech.

“In this case, Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance,” the court said. “As this Court has long held, the opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong.

Gorsuch was joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh and Amy Coney Barrett in the majority opinion. Justice Sonia Sotomayor wrote a dissenting opinion, joined by Justices Elena Kagan and Ketanji Brown Jackson.

“The law in question targets conduct, not speech, for regulation, and the act of discrimination has never constituted protected expression under the First Amendment,” Sotomayor wrote in her dissent. “Our Constitution contains no right to refuse service to a disfavored group.”

This is the second case from Colorado related to LGBTQ discrimination that made its way to the Supreme Court. The first was Masterpiece Cakeshop v. Colorado Civil Rights Commission, which involved a cake shop owner who denied a same-sex couple a wedding cake based on religious beliefs. The Masterpiece case focused on the First Amendment’s freedom of religion clause, while the 303 Creative case focused on the free speech clause.

Sweeping effects

In his remarks Friday, Weiser emphasized the potential broad implications of the ruling. He said the court’s decision “means a business could refuse to serve an interracial couple claiming that interracial marriage is wrong. It means a payroll company or photographer could say, ‘I don’t want to do business with women-owned businesses, because I don’t believe women should be working outside the home.’ It means a bookseller of religious texts could say, ‘I’m not going to sell books to a member of the Church of Jesus Christ of Latter-day Saints, because I don’t believe that it’s a legitimate religion,’ and so on.”

President Joe Biden in a statement echoed Weiser’s interpretation.

“While the Court’s decision only addresses expressive original designs, I’m deeply concerned that the decision could invite more discrimination against LGBTQI+ Americans,” Biden said in a statement. “More broadly, today’s decision weakens long-standing laws that protect all Americans against discrimination in public accommodations — including people of color, people with disabilities, people of faith, and women.”

Colorado Gov. Jared Polis, the country’s first openly gay man elected governor, noted that while the ruling did not invalidate the Colorado Anti-Discrimination Law, it opened a legal pathway for business owners who claim they’re selling “expressive” or “artistic” items to discriminate.

“Unfortunately, Americans have seen the Supreme Court become increasingly obsessed with taking away freedoms,” Polis said in a statement.

Weiser suggested a solution Friday.

“On the legal front, we’re going to do all we can to work to limit the impact of this decision and, ultimately, to overturn this decision,” Weiser said during the news conference, adding, referring to the Supreme Court’s reversal of the constitutional right to get an abortion, “Like the Dobbs decision of last year, this decision is not what our Constitution, what our democratic republic, stands for, which is founded on the promise of equal justice for all.”

The most important response to the ruling is for businesses to choose to serve everyone, he said.

This was a message that Nadine Bridges, executive director of One Colorado, which advocates for the LGBTQ community, voiced during the news conference.

“We call on all fair-minded businesses and owners to condemn discrimination and continue the long-standing commitment to treat everyone with dignity and respect and to remain open to all,” Bridges said.

This story was originally published in Colorado Newsline.

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Lorie Smith, the owner of 303 Creative, a website design company in Colorado, speaks with supporters outside of the U.S. Supreme Court Building on December 05, 2022 in Washington, DC. (Photo by Anna Moneymaker/Getty Images)

Policy, politics and progressive commentary

The U.S. Supreme Court on Monday heard oral arguments in the 303 Creative v. Elenis case, which involves a Colorado website designer who believes her First Amendment right to free speech is violated by Colorado’s Anti-Discrimination Act.

Plaintiff Lorie Smith, who owns 303 Creative, said the Colorado law preventing discrimination based on sexual orientation violates her right to free speech because, based on her religion, she doesn’t believe in same-sex marriage and therefore does not want to create wedding websites for same-sex couples. Aubrey Elenis, who is named as a defendant, is the director of the Colorado Civil Rights Division. The Colorado solicitor general argued on the state’s behalf.

One of the key debates in the case is whether the creation of a website is considered a form of speech or a service. Smith argues it’s speech, while the defendants argue it is a service and public accommodation laws should therefore apply. Essentially, Smith’s argument is that the anti-discrimination laws constitute compelled speech, forcing her to create a website against her personal beliefs. The court is not making decisions related to the First Amendment’s freedom of religion clause.

Many watching the case have a sense of deja vu, especially Coloradans familiar with Masterpiece Cakeshop v. Colorado Civil Rights Commission, which involved a cake shop owner who denied a same-sex couple a wedding cake. That case also went before the Supreme Court. Another debate that came up in oral arguments Monday related to how creating a cake or other such service differs from creating a website.

Colorado Attorney General Phil Weiser said in a news conference following opening arguments that if someone opens their doors to the public, they must accommodate all comers, and he reiterated Colorado’s number of protected classifications, including race, gender and sexual orientation. He said categorical exemptions like the one sought in the 303 Creative case deprive a group of people access to the marketplace.

“You can’t deny someone access to a product or service based on who they are,” Weiser said in the news conference.

Weiser reiterated Colorado’s reliance on the Rumsfeld v. Forum for Academic and Institutional Rights case, which said schools could not selectively exclude military recruiters from their schools. He also echoed concerns from some justices that if an exemption for Smith is permitted it could “easily spread to cover a range of other scenarios.”

“In the argument, it was clear that the justices understood the gravity of this case, both the importance of protecting the principle that we’re advocating for — a principle that has roots in the 1860s in Colorado where we first adopted a public accommodations requirement,” Weiser said.

During oral arguments, justices presented Smith’s attorney, Kristen Waggoner, with a variety of hypotheticals while going through the plaintiff’s arguments, with Waggoner repeatedly emphasizing Smith’s belief that same-sex marriage is false and that she should not be forced to create speech against her beliefs and the First Amendment. Waggoner argued that a website design company is different from another service like a restaurant, caterer or tailor because the website designer is creating speech.

Justice Sonya Sotomayer asked Colorado Solicitor General Eric Olson, who argued for the defense, to verify that if the court ruled in Smith’s favor it would be the first time in the court’s history it would allow a business to refuse a customer service based on their race, sex, religion or sexual orientation. Olson responded “yes.”

“Granting such a license to discriminate would empower all businesses that offer what they believe to be expressive services, from architects to photographers to consultants, to refuse service to customers because of their disability, sexual orientation, religion or race,” Olson said Monday morning. “The free speech clause exemption the company seeks here is sweeping, because it would apply not just to sincerely held religious beliefs like those of the company and its owner, but also to all sorts of racist, sexist and bigoted views.”

Olson argued that public accommodation laws are of “general applicability that apply to all those operating a trade to the public, they don’t say except those engaged in expressive conduct,” but there isn’t much legal precedent regarding speech in such cases. If a company saw high demand and was unable to render services to everyone, it can make a decision about who to serve and not to serve, Olson said, but that decision can’t be based on a protected characteristic under Colorado statute.

Waggoner was challenged to consider this hypothetical: Two websites are identical, but one promotes a wedding for a heterosexual couple and the other promotes a wedding for a same-sex couple — what’s objectionable speech in one site but not the other? Waggoner argued the two sites would convey different messages, one of which the plaintiff does not believe in. Justice Neil Gorsuch said one can view a website as expressing the maker’s point of view or the couple’s point of view.

“The Pulitzer Prize doesn’t go to the customer or to the subject, it goes to the photographer, and there’s a reason for that,” Waggoner said. “That reason is because you are requiring that artist to speak a message … No one on any side of any debate has to be compelled to express a message that violates their core convictions, because as this court found, it’s demeaning to them.”

One of the cases of precedent cited by both parties Monday is Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, but Justice Ketanji Brown Jackson noted how this case is different, because the Hurley case related to a private entity, not a public business.

Wesier also noted the 303 Creative case is made more complicated because the company has not actually denied any same sex couples a website yet. There is no clear set of facts the court could base its ruling on.

“We’ve not seen this in American law before,” Weiser said. “It is a real risk to see it in this case, and that’s why we’re fighting so hard to defend Colorado civil rights law.”

The Supreme Court won’t issue a final decision on the case until about June.

This story was originally published in Colorado Newsline. 

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