The U.S. Supreme Court should decline to hear a case challenging the constitutionality of Colorado’s anti-discrimination law because the state has not, and likely would not, take action against the business owner in question, the Colorado Attorney General’s Office argued to the nation’s highest court on Wednesday.

In a legal brief submitted to the Supreme Court, the state defended the Colorado Anti-Discrimination Act’s (CADA) protections for LGBTQ individuals and also slammed graphic and web designer Lorie Smith for pursuing the lawsuit in the absence of any state proceedings against her.

Smith seeks to expand her business to the creation of wedding websites. As a Christian, however, she would decline to build wedding websites for same-sex couples and wishes to advertise her belief that to do otherwise “would compromise my Christian witness and tell a story about marriage that contradicts God’s true story of marriage.”

The state’s brief, signed by Attorney General Phil Weiser, contended that there is no proof any same-sex couple has asked for and been refused service, or that the state will enforce CADA against Smith. The brief also referenced other courts that have addressed the question of whether businesses may preemptively challenge anti-discrimination laws.

“All these courts have held that a state must take significant action to enforce its statute for a plaintiff to face a credible threat of enforcement,” the attorney general’s office wrote.

After a lower court dismissed Smith’s case, the Denver-based U.S. Court of Appeals for the 10th Circuit upheld the constitutionality of CADA in a decision this July. By a 2-1 ruling, the appellate panel’s majority found that although the state’s anti-discrimination law would compel Smith to create content at odds with her religious beliefs, Colorado has a key interest in protecting certain populations from discrimination in the marketplace.

“[A] faith that enriches society in one way might also damage society in other ways, particularly when that faith would exclude others from unique goods or services,” wrote Senior Judge Mary Beck Briscoe.

Smith is now requesting that the Supreme Court review the 10th Circuit’s decision. In effect, she is asking the court to pick up where it left off in the 2018 decision of Masterpiece Cakeshop v. Colorado Civil Rights Commission. That case, involving a Lakewood business owner who refused to create a wedding cake for a same-sex couple, also implicated whether Colorado could compel someone to violate their religious beliefs through CADA.

The Court, however, declined to give a direct response and rendered a decision based on what it viewed as hostile conduct toward the plaintiff in that case.

Weiser’s office brought the Court up to date on civil rights enforcement since the Masterpiece Cakeshop decision.

“In the three and a half years since Masterpiece, Colorado has not imposed any civil penalties related to same-sex wedding services,” the office wrote. Since late 2016, there have been 47 public accommodations complaints alleging discrimination on the basis of sexual orientation, only two of which the state found to have probable cause.

The Civil Rights Division administratively closed 15 additional complaints, meaning they resulted in settlements, withdrawals or other resolution without penalties.

The 10th Circuit disagreed with the attorney general’s office that it could not decide Smith’s case because she had not been the subject of any state enforcement action. Consequently, Weiser’s office touched on other reasons for maintaining the status quo – namely that allowing an exception for Smith would amount to the state’s endorsement of anti-LGBTQ beliefs, and that her intended statement about the types of websites she would not design would serve to advertise the type of discrimination CADA outlaws.

“[P]rohibiting companies from displaying what would amount to ‘Straight Couples Only’ messages is permissible because it restricts speech that proposes illegal activity and is therefore unprotected by the First Amendment,” the state wrote.

Since Smith filed her petition to the Supreme Court, First Amendment scholars, conservative groups and a collection of Republican members of Congress have asked the Court to accept her case. Critics of the 10th Circuit’s decision or CADA have decried the outcome as viewpoint discrimination, censorship and “a step on the road to Fascism.”

Smith is also suggesting that the Supreme Court overrule its own 1990 decision finding that generally-applicable laws that do not target religion are constitutional. The Supreme Court has already committed to hearing multiple religious freedom cases during its current term, including an appeal argued on Wednesday involving the right of families in Maine use state education subsidies toward religious instruction.

The case is 303 Creative et al. v. Elenis et al.