Fresh off SCOTUS loss, Colorado orders lawyers 'under penalty of perjury' to refuse ICE cooperation

Colorado has an unenviable track record on First Amendment issues at the Supreme Court in the past decade, with lopsided rulings in favor of professionals compelled to participate in same-sex weddings and affirm gender confusion in minors, most recently 8-1.

That hasn't stopped the Centennial State from pushing the envelope on subsequent speech mandates: a sanctuary-state loyalty oath for Colorado lawyers and a public accommodation law that allegedly restricts what businesses can say about the biological differences between men and women.

Legal experts and one known Trump administration official are closely scrutinizing last week's implementation of Senate Bill 25-276, which requires Colorado lawyers to certify annually "under penalty of perjury," as a condition of e-filing in state court, they won't use "personal identifying information" from the system to help federal immigration enforcement such as Immigration and Customs Enforcement.

Colorado religious liberty lawyer Ian Speir shared his unwelcome discovery that he couldn't log into the system on behalf of clients "without saluting The Resistance," despite the fact that his cases "have absolutely nothing to do with immigration law or policy." 

Another Colorado lawyer, self-proclaimed "gangster of love" Matt Barber, also attested to being confronted with the "indefensible" announcement when he tried to log in.

U.S. Agency for Global Media senior adviser Kari Lake is the top X reposter of Speir's post, and Judicial Watch President Tom Fitton said his transparency watchdog group is investigating.

Manhattan Institute Director of Constitutional Studies Ilya Shapiro said the law confirms "Colorado has become a radical left-wing state" despite the perception of Democratic Gov. Jared Polis as a "libertarian-ish moderate."

Colorado lost 9-0 when its state Supreme Court removed then-presidential candidate Donald Trump from the ballot in 2024, and its regulators are "0-3 at SCOTUS in fighting culture wars," Shapiro said, likely referring to Colorado's losses in First Amendment litigation by cake designer Jack Phillips, website designer Lorie Smith and licensed therapist Kaley Chiles.

"Colorado really, really likes doing ridiculous things to make good constitutional law," said Stand Together's Casey Mattox, who was senior counsel at the Alliance Defending Freedom when the group helped Phillips win the Masterpiece Cakeshop case on religious hostility grounds.

"I sort of respect [Colorado] for the misguided zeal that gave us Masterpiece Cakeshop, [Smith's] 303 Creative, Chiles v. Salazar and now, probably, this craziness," Mattox said.

Some reposts asked the Department of Justice or Assistant Attorney General for Civil Rights Harmeet Dhillon, recently tarred by Politico as "the woman who thinks civil rights went too far," to challenge Colorado's law. DOJ didn't answer a query Monday.

Colorado's loyalty oath for lawyers appears to be the first of its kind in the nation, though a few states have implemented lawyer speech codes based on the American Bar Association's Model Rule 8.4(g), which lawsuits allege create a chilling effect on what lawyers can say out of the courtroom without being subject to discrimination and harassment complaints.

Two years ago, SCOTUS denied a petition to review the 3rd Circuit's lifting of an injunction against Pennsylvania's implementation. But several months later, the 2nd Circuit reinstated a challenge to Connecticut's rules.

Denver Gazette investigative columnist Jimmy Sengenberger reminded observers Friday that he posted a screenshot of the "Disclaimer User Agreement" pop-up following the law's approval last summer, which apparently prompted the state to backtrack the next day.

"Most court records are considered public records, yet the state was telling officers of the court they can’t use public records to cooperate with the federal government," Sengenberger wrote Sept. 2. "Attorneys against a deadline had no choice – accept the pledge or fail their clients."

He wondered how the state would prove perjury: "Could they search lawyers’ search histories or even privileged files?"

The Colorado Judicial Branch's page on the law told visitors March 26 that the "certification requirement" would be implemented March 30. 

"In September 2025, some users may have briefly seen a certification requirement appear in the system," which prompted the Judicial Department to take it down "for further internal and external discussion regarding the implementation of the new statutory requirements," the page reads.

The certification requirement displays only if users tell the system they are not government employees, who are exempt from the law. 

Any "third party" with access to the system – "certain attorneys, LLPs, and, in certain case types, pro se litigants" who represent themselves – has access to information that is not "available to the public online, in person, or through a records request," the page also reads.

"We recognize that some people may be frustrated by the requirements of this new legislation," but the "judiciary is required to comply with the laws as enacted by the legislature and has worked hard to make the process as easy as possible," it says.

Misgendering and deadnaming don't deny 'full and equal enjoyment'

The Alliance Defending Freedom appealed to the 10th U.S. Circuit Court of Appeals last week on behalf of its clients, gender-critical clothing brand XX-XY Athletics and Christian bookstore Born Again Used Books, after President Biden-nominated U.S. District Judge Regina Rodriguez refused to issue a preliminary injunction against the Colorado public accommodation law.

The 10th Circuit docket shows a third set of plaintiffs subject to Rodriguez's consolidated order – Defending Education, Colorado Parent Advocacy Network, Protect Kids Colorado, Do No Harm, dermatologist Travis Morrell, pediatrician Valerie Leswing and her practice Mountain Pediatrics – also appealed her ruling.

By signing HB 25-1312 into law, which amended the Colorado Anti-Discrimination Act to define "gender expression" to include "chosen name" and "how an individual chooses to be addressed," Polis forced businesses to use "biologically inaccurate language in their customer interactions, advertisements, and other publications," ADF said.

Rodriguez's March 31 order, however, claimed that none of the plaintiffs were subject to the law – the same argument Colorado belatedly and unsuccessfully made when SCOTUS granted the petition by counselor Chiles to review the state's ban on so-called conversion therapy. 

"The plain language of CADA’s public accommodation statute" prohibits the denial or withholding of "the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a public place of accommodation" to anyone "because of" gender identity or gender expression, the judge wrote.

"Therefore, Collective Plaintiffs’ intended conduct – to refer to individuals using pronouns, honorifics, or titles that are consistent with that person’s biological sex without denying goods or services – does not appear on its face to violate CADA or present a credible threat of enforcement," she wrote, referring to the three sets of plaintiffs.

Rodriguez distinguished the case from Chiles' challenge to Colorado's ban on counseling gender-confused children to be comfortable in their bodies. She noted the district court, 10th Circuit and SCOTUS all agreed Chiles had legal standing for a pre-enforcement challenge and that "Colorado authorities had refused to disavow bringing enforcement actions against her."

Colorado Civil Rights Division Director Aubrey Sullivan testified that three conditions must be met for a CADA violation, which together act as a "disavowal of future enforcement," according to the judge.

The public accommodation must "intentionally treat a customer or prospective customer differently based on their protected class status," the customer must "as a subjective matter" experience the conduct as a "denial of the full and equal enjoyment" of what the public accommodation offers based on gender identity, and the division must determine "a reasonable person" would experience the conduct the same way, Sullivan said.

State authorities represented in court that "intended misgendering and deadnaming alone is not conduct that violates CADA per se," the division hasn't received any complaints regarding a public accommodation's "policy or publication on misgendering or deadnaming," and it wouldn't automatically initiate an enforcement action if it got one, the judge said.

Previous enforcement actions cited by the plaintiffs involved "a denial of full and equal enjoyment of goods and services," not just speech – a male blood donor not allowed to "self-identify her gender in her donor profile" after identifying as a woman, and a male bar patron who identifies as a woman ordered to not use a women's restroom again.

"Collective Plaintiffs have expressed that they intend to offer their goods or services to everyone," Rodriguez said.