Further Thoughts on Standing and the 303 Creative v Elenis case
Several months ago, I published several posts here on the VC arguing that the Court should have dismissed Lorie Smith’s challenge to Colorado’s anti-discrimination law for lack of Article III standing. [see here and here]. In response, Prof. Richard Re (UVA) took the opposite position [see here and here]; he wrote:
According to many commentators [e.g., me], the Court decided what was really a “fake” or “made up” case brought by someone who asserted standing merely because “she worries.” As a doctrinal matter, these criticisms are unfounded [and] the premise underlying this popular criticism is plainly incorrect. … The Court spent several pages approvingly recounting the standing analysis issued by the court of appeals. And that discussion applied a “credible threat” standard, consistent with settled case law. . . . This is a case where the existing rules were followed. Leading cases in the area are unanimous …
This past week I gave the inaugural lecture at Catholic University Law School’s “Sexuality and Gender Discussion Forum” on the question of standing in this case. This presented an opportunity to take a somewhat deeper dive into the issue, and I came away more convinced than ever that the Court’s decision was deeply ill-advised, inconsistent with prior precedent, a substantial expansion of existing standing rules, and likely to wreak considerable havoc in the days ahead. Let me try to explain why.
First, the facts, as summarized in the Supreme Court’s majority opinion (emphases added):
“Through her business, 303 Creative LLC, Lorie Smith offers website and graphic design, marketing advice, and social media management services. Recently, she decided to expand her offerings to include services for couples seeking websites for their weddings. As she envisions it, her websites will provide couples with text, graphic arts, and videos to “celebrate” and “convey” the “details” of their “unique love story.” … The websites will discuss how the couple met, explain their backgrounds, families, and future plans, and provide information about their upcoming wedding. All of the text and graphics on these websites will be “original,” “customized,” and “tailored” creations. The websites will be “expressive in nature,” designed “to communicate a particular message.” Viewers will know, too, “that the websites are [Ms. Smith’s] original artwork,” for the name of the company she owns and operates by herself will be displayed on every one. …
[Alert readers may notice that some of these so-called “facts”—that her text and graphics will be “original,” and “expressive in nature,” and “communicative”—look a lot more like legal conclusions than facts. See below.]
The Court continued:
“[S]he has yet to carry out her plans. She worries that, if she does so, Colorado will force her to express views with which she disagrees. Ms. Smith provides her website and graphic services to customers regardless of their race, creed, sex, or sexual orientation. But she has never created expressions that contradict her own views for anyone—whether that means generating works that encourage violence, demean another person, or defy her religious beliefs by, say, promoting atheism. Ms. Smith does not wish to do otherwise now, but she worries Colorado has different plans. Specifically, she worries that, if she enters the wedding website business, the State will force her to convey messages inco
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