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Why Does Colorado Keep Losing at the Supreme Court?
Despite multiple losses at the U.S. Supreme Court, Colorado continues to try to force an LGBTQ agenda on residents, and it costs taxpayers a great deal.
“There’s just double down after double down after double down,” Jonathan Scruggs, senior counsel and vice president of litigation strategy at Alliance Defending Freedom, told the Daily Signal in an interview Wednesday. “Even if that means losing in court, even if that means paying large amounts of attorney’s fees, that seems to be a lesser priority than targeting certain people, targeting certain beliefs.”
“You can teach a First Amendment class just on Colorado cases,” he added. “They’re doing a service to law students across the country.”
Three Revealing LGBTQ Cases
ADF has represented three conservative Christians who appealed their cases against Colorado up to the Supreme Court.
The Colorado Civil Rights Commission targeted Christian baker Jack Phillips, who refused to bake a custom cake to celebrate a same-sex marriage. Phillips sued, and lower courts found against him, but the Supreme Court ruled that the commission had unconstitutionally targeted him for his religious exercise.
Yet the commission went after Phillips again, when he refused to bake a cake to celebrate a gender “transition.” ADF represented him in a follow-up case that went to the Colorado Supreme Court.
Lori Smith, a Christian graphic designer who owns the company 303 Creative, planned to create wedding websites but would not create websites for same-sex weddings. Smith, represented by ADF, filed a pre-enforcement challenge against Colorado applying the anti-discrimination act against her, claiming that forcing her to create same-sex wedding websites would violate her First Amendment rights.
Lower courts ruled against Smith, but the Supreme Court upheld her rights to free speech and the free exercise of religion in 2023.
Scruggs, the ADF lawyer, noted that Colorado paid Smith and ADF $1.5 million in attorney’s fees after the case.
“These are taxpayer dollars that they’re lighting on fire in a lot of ways because they don’t care about the First Amendment,” he said.
Colorado passed a law banning “conversion therapy” in 2019, allowing counseling encouraging a transgender identity, but not therapy in the opposite direction.
Kaley Chiles, a licensed professional counselor in Colorado Springs, sued the state, claiming that the law discriminated against her viewpoint. She sought a preliminary injunction, and the lower courts refused her, treating the restriction as regulating professional conduct rather than speech.
The Supreme Court in March ruled, 8-1, that the law violated the Constitution by discriminating against Chiles’ viewpoint. Colorado’s Legislature responded by passing House Bill 26-1322 to allow survivors of “conversion therapy” to sue providers. Gov. Jared Polis, a Democrat, signed the bill on June 1.
“It’s not like Colorado decided to stop enforcing its law,” Scruggs, the ADF attorney, told the Daily Signal. “It amended its law in an effort to get around the Supreme Court decision.”
“The bottom line is, the attorney general of Colorado has not had a good record at the U.S. Supreme Court,” he added.
The Daily Signal reached out to the Colorado Civil Rights Commission and the attorney general’s office for comment but did not hear back.
More Colorado Cases
Scruggs mentioned three active cases against Colorado.
XX-XY Athletics, a sports apparel company supporting fairness in women’s sports, and Born Again Used Books, a Christian bookstore, are suing to block enforcement of a law mandating transgender pronouns. They seek preliminary injunctions to protect them from being penalized for refusing to refer to a male as “she” or vice versa. Federal district courts denied preliminary injunctions, and the businesses appealed to the 10th Circuit.
ADF is also representing Darren Patterson Christian Academy, a faith-based preschool, in suing the Colorado Department of Early Childhood. The department threatened to exclude the preschool from Colorado’s Universal Preschool Program. It demanded the school hire non-Christians and change its policies on bathrooms, dress codes, pronouns, and other issues to align with transgender ideology.
While a federal district court ruled in favor of the school in February 2025, Colorado is appealing the case to the 10th Circuit.
The Supreme Court has taken up a similar case regarding that program.
The Daily Signal reached out to the Colorado Department of Early Childhood for comment but did not hear back.
Why Colorado?
Although other states also violate religious freedom and free speech, Scruggs noted that Colorado “definitely seems to be the one state in the country that we sue the most, or at least their cases go up to the U.S. Supreme Court.”
He partially attributed the issue to “some really bad decisions” from the 10th Circuit, but many of the cases revolve around state mandates on LGBTQ issues.
He highlighted the mandate on transgender pronouns.
“Obviously, people of faith are going to have strong objections to that,” he said. “But even non-religious people can have strong objections.”
“I would call it an animus against common sense,” Scruggs said.