Colorado’s Civil Rights Commission still has not learned its lesson

What can aptly be described as a dystopian situation continues in Colorado. The owners of Born Again Used Books, a small family-owned Christian bookstore in Colorado Springs, sued the state over a new law adopted on May 16, 2025, called “Concerning Legal Protections for Transgender Individuals”. The law expands the meaning of “[g]ender expression” by requiring proprietors of small businesses to address persons based on “HOW THE INDIVIDUAL CHOOSES TO BE ADDRESSED” (emphasis in original), regardless of one’s biological sex and the owners’ beliefs.

Under a revised statute, “Colorado Public Accommodations Law”, signed into effect on May 22, 2025, violations will subject small business owners to significant fines and potential liability for emotional distress and injunctions mandating compliance.

Eric and Anna Smith, the owners of Born Again Used Books, filed suit in the federal trial court in Colorado in Doxa Enterprise v. Sullivan, challenging state law as violating their rights.

Given the potential significance of this controversy, I will briefly review the underlying law, facts, and complaint before reflecting on what it might mean for religious freedom.

Background

Born Again Bookstore sells mostly used Christian literature, along with homeschool curricula and classics such as Animal Farm and Wuthering Heights. The Smiths, who maintain a website and social media accounts promoting their faith and products, believe that because God created everyone in His image, male or female, worthy of dignity and respect, they welcome and serve all customers, including those who say they are “transgender”.

However, due to their beliefs, the Smiths will not use pronouns, titles, or any other language contrary to a person’s biological sex, as this would imply agreement that individuals can change their sexes, a view contradicting their beliefs. The Smiths are reluctant to formalize this policy in writing, publish it online, and explain its Christian views on gender identity to customers for fear of running afoul of the laws, which essentially compel them to profess a view they oppose.

Under Colorado law, the Smiths could be fined $5,000 “payable to each plaintiff for each violation” along with facing noneconomic damages such as “emotional distress” of up to $50,000 per person, as well as cease and desist orders. Companies that comply with the law within 30 days can have the fines reduced by 50%.

These laws could require the Smiths and others to go through extensive and expensive processes, including litigation, that could drain their resources, putting them out of business.

Charges

In their initial cause of action the Smiths, who are represented by Alliance Defending Freedom, which successfully litigated the two Supreme Court cases discussed below, claim that Colorado is violating their First Amendment rights to free speech, press, and assembly. The Smiths believe that because Colorado law is vague, it allows the state unfettered discretion to evaluate their speech and discriminate against them based on its content and viewpoint.

Regarding their free exercise rights, the Smiths charge that Colorado “substantially burdens [their} sincerely held religious beliefs by preventing [them] from formally adopting and communicating policies consistent with [their] religious views on human sexuality and gender identity, and by preventing [their] religiously motivated speech.”

The third claim, vagueness, overlaps with the first, stating that Colorado violates their Fourteenth Amendment rights to due process and equal protection because state officials have sole authority to interpret the statutes.

Finally, the Smiths charge that Colorado violates their rights to equal protection. In impacting their fundamental constitutional rights, insofar as it is neither neutral nor narrowly tailored to accomplish a compelling governmental interest, it could not survive strict scrutiny, the most stringent level of judicial review under which the government typically loses.

Reflections

The dispute over the Born Again Bookstore is part of a continuing conflict of values in the culture wars over human sexuality. To this end, in borrowing from the late Justice Scalia’s dissent in Lawrence v. Texas, invalidating American laws criminalizing same-sex sexual activity between consenting adults, Colorado “has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed.”

In fact, this dispute demonstrates the Colorado Civil Rights Commission’s continuing hostility to Christians even after losing two cases before the Supreme Court. In both cases, Commission members tried to compel Christians to communicate messages inconsistent with their beliefs.

In 2018’s Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court ruled in favor of a Christian baker because its members displayed overt hostility to his beliefs, violating his right to the free exercise of religion in attempting to order him to make a cake for individuals entering a “same-sex union”.

In a related development, in 2024, the Supreme Court of Colorado dismissed the related claim that a “transgender” attorney filed against the baker, hopefully ending this litigation. In 303 Creative v. Elenis, sidestepping the religion claim, the Justices reasoned that the Commission could not require a Christian wedding website designer to work with a same-sex couple because this would have violated her First Amendment right against compelled speech.

Colorado’s Civil Rights Commission has been equally unsuccessful in lower federal courts.

For example, earlier this year, the federal trial court prevented Colorado officials from excluding a Christian preschool from participating in the state’s universal pre-K program due to its policy of using biologically correct pronouns. A year earlier, another federal trial court judge determined that Colorado officials could not exclude a Catholic school from the same program because its administrators asked parents of prospective students to share their beliefs.

It remains to be seen whether Colorado officials can respect that there are legitimate differences of opinion entitled to constitutional protection. How the tension between the rights of Christians and transgender individuals is resolved will play a role in defining the future of freedom of religion and speech in the United States. Hopefully, Americans can learn to live with those whose beliefs are different, agreeing to disagree but not being disagreeable over these issues as they come to respect others’ opinions on matters “that touch the heart of the existing order” amid increased political polarization and social tensions.

I want to think that highly ideological officials will learn from their mistakes in having lost five cases. On the other hand, given Colorado’s recent track record, I am not optimistic (and I will write a follow-up column when the court renders its judgment). In light of the recent litigation, it appears that Colorado will again lose.