Case or Controversy Requirement? What Case or Controversy Requirement?

The Supreme Court's misguided decision to grant Lorie Smith standing to pursue her entirely hypothetical claim against the State of Colorado in the web designer case.

"The judicial Power shall extend to … Cases … [and] to Controversies …"

US Constitution, Article III Sec. 2

We all know roughly what that means, right? No advisory opinions from the federal courts; no decisions about hypothetical cases. I admit that I'm no expert in the doctrine in this area, though I do watch it out of the corner of my eye, and I can't recall reading a more ridiculous standing decision in the last 10 years or so than the one the Court endorsed in the 303 Creative v. Elenis case (holding, on the merits, that the designer of a wedding website has a First Amendment right to deny her creative and expressive services to same-sex couples). If you know of one, I'd love to know what it is.

[NB: Unless otherwise noted, all quotations below are from the Supreme Court's majority opinion in the 303 Creative case, and all emphases are added]

Lorie Smith, through her business (303 Creative), offers "website design services."  At some point in 2016, she "decided [to]expand her offerings to include services for couples seeking websites for their weddings." Smith has a "sincerely held religious conviction" that "marriage is a union between one man and one woman," and she "will not produce content that contradicts biblical truth."

The Colorado Anti-Discrimination Act prohibits all "public accommodations" - defined "broadly to include almost every public-facing business in the State" - from "denying the full and equal enjoyment of its goods and services to any customer based on his race, creed, disability, sexual orientation, or other statutorily enumerated trait."

Although Smith "laid the groundwork for her new venture, she has yet to carry out her plans." [I.e., there is no wedding website]  She "worries that, if she does so, Colorado will force her to express views with which she disagrees." To "clarify her rights," Ms. Smith "filed a lawsuit in federal district court . . . seeking an injunction to prevent the State from forcing her to create wedding websites celebrating marriages that defy (sic) her beliefs."

Now I don't know about you, but I look at these (undisputed) facts and I have a very, very hard time discerning the "case or controversy" here. There's no website. Indeed, there may never be a 303 Creative wedding website.** Because there is no website, there are no customers, same-sex couples or anyone else, for the services the website might provide (if it existed).  Because she is offering no services (yet) to anyone, she has not "denied her services" (yet) to anyone based on their race, creed, or sexual orientation. And because she has not denied her services to anyone based on their race, creed, sexual orientation, etc., she has not done anything that could be deemed a violation of the CADA.  And because she has not done anything that could be deemed a violation of the CADA, CO has not taken any action against her.

** Note: Smith filed her initial complaint in 2016, asserting her plans to open up a wedding website. As far as I can tell from the 303 Creative website, she has not yet carried through with those plans, as of yesterday.

In short, the case is entirely hypothetical.  "IF I do this, and IF they do that, my constitutional rights will have been violated."  Exactly the sort of case, one would think, that federal courts must, as a constitutional matter, decline to hear, for the simple reason that it does not yet exist (and may never exist - see below).

The 10th Circuit - astonishingly, to my eye - found that Smith did have standing to pursue her thus-far-entirely-hypothetical claim because she had shown that "a credible threat existed that Colorado would, in fact, seek to compel speech from her that she did not wish to produce." It held:

"… that [Smith] had established a credible threat that, if she follows through on her plans to offer wedding website services, Colorado will invoke CADA to force her to create speech she does not believe or endorse.… The court pointed to the fact that 'Colorado has a history of past enforcement against nearly identical conduct—i.e., Masterpiece Cakeshop'; that anyone in the State may file a complaint against Ms. Smith and initiate 'a potentially burdensome administrative hearing' process; and that 'Colorado [has] decline[d] to disavow future enforcement proceedings against her'."

Morever, Justice Gorsuch continued in his majority opinion: "Before us, no party challenges these conclusions."

I can't say why Colorado chose, when the case reached the Supreme Court, to drop its argument that Smith lacked standing to pursue her claim.  But in any event, it is black-letter law that such a move does not relieve the Court of its constitutional duty to satisfy itself that the plaintiff is presenting a justiciable case or controversy to be resolved. Standing is a jurisdictional requirement; it cannot be waived or abandoned by the parties themselves, and federal courts may - must, in fact - raise the matter sua sponte if they believe that there is no case or controversy presented.

UPDATE 7/9/2023  A surprising number of commenters took issue with the above paragraph. "But the parties here stipulated to standing," or "Colorado abandoned its objections to standing," or "the Court didn't find that Smith had standing, it only refused to overturn the 10th Circuit's finding that she had standing."

None of that, ultimately, matters. Parties cannot stipulate to subject matter jurisdiction in a federal court. FW/PBS v. City of Dallas, 493 U.S. 215, 231 (1990). The federal courts are under an independent obligation to examine their own jurisdiction, and standing "is perhaps the most important of the jurisdictional doctrines." Allen v. Wright, 468 U.S. 737, 750 (1984). "Every federal appellate court has a special obligation to 'satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review,' even though the parties are prepared to concede it. Mitchell v. Maurer, 293 U.S. 237, 244 (1934). The burden of pleading and proving Article III standing rests upon the challenger. "Although raised by neither of the parties, we are first obliged to examine the standing of the appellees, as a matter of the case or controversy requirement associated with Article III, to seek injunctive relief in the District Court." Juidice v. Vail, 430 U.S. 327, 331 (1977). "And if the record discloses that the lower court was without jurisdiction, this court will notice the defect, although the parties make no contention concerning it." Bender v. Williamsport Area School Dist., 475 U.S. 534, 541 (1986). Etc.

[thanks to Commenter "not guilty" for pulling out these citations]

An analogy: I hire you to mow my lawn weekly.  As part of the deal, you agree that when you take the lawnmower from the garage, you'll check the gauge on the hot water heater there (which has been giving us trouble). You have, in other words, a legal obligation to check the gauge.  Every Wednesday, I get a text: "Just finished mowing your lawn."  I am entitled to assume that you checked the gauge, because checking the gauge is encompassed within your obligation to "mow the lawn."

The Supreme Court has a legal obligation, imposed by Article III, to check the "jurisdiction gauge" when it decides any case. Same for all of the federal courts. When they issue a judgment, we are entitled to assume that they did so, whether or not they say anything about it in their opinions or orders, whether or not the parties asked them specially to do it, whether or not a lower court may have already decided the question for itself.

As for the "credible threat" that Colorado would initiate an action against her, that's worth a closer look. Here's what had to happen before her case would have been properly presented to a court for resolution:

1. Smith would have had to actually open up a wedding website to the public;
2. Having done so, Smith would have had to receive a request from a same-sex couple for wedding-related web design/hosting services;
3. Having received such a request, she would have had to refuse to provide the services requested, services that she would happily provide to a heterosexual couple; and
4. Given her refusal to provide services at her website requested by a same-sex couple that she would have provided to a heterosexual couple, the Colorado Commission on Civil Rights would have to decide to file a CADA claim against her, based on that refusal, for violating CADA.

Four necessary conditions that must be fulfilled for there to be an actual "case" against Smith. Let's call them the Website, Request, Refusal, and Action Conditions.

I'll concede #4: IF (but only if) all of the prior conditions had been satisfied, Colorado was indeed likely to initiate an actual CADA case against Lorie Smith. That, in essence, is what the 10th Circuit concluded, based on evidence regarding Colorado's aggressive stance in connection with the enforcement of CADA violations. It's not an unreasonable position.

But that's pretty much all that the 10th Circuit concluded; it didn't seem to question that (a) Ms. Smith might never get her website up and running, or that (b) same-sex couples would never actually request her services, or that (c) she would discourage - strongly - said couples, but not actually refuse them service.

1. The Website Condition.  Would Smith ever have actually built a wedding website? Certainly a possibility, but one I would rate at only moderately likely. Generally speaking, perhaps you have noticed the same thing I have noticed over the course of a lifetime, which is that a lot of things that people "decide" to do and "make plans" to do never actually get done - trips to the Caribbean that don't get taken, medical school applications that don't get submitted, back porches that don't get fixed up, musical instruments that don't get learned, businesses that don't get opened, etc. Moreover, as noted above, this particular event still hasn't happened; in the seven years since she filed her complaint no wedding website has appeared. There are many possible explanations for that, but it raises at the very least the possibility that it would never have appeared (and POOF! there goes the "credible threat" to initiate an enforcement action against her).

2. The Request Condition. Again, it is certainly possible, if she had ever gotten around to offering her wedding-website-design services to the public, that a same-sex couple would have found the website - through, say, an Internet search or advertisement - and would have sought to hire her to celebrate their marriage.

But there are about a million different ways - perfectly lawful ways - that Smith could easily have reduced the likelihood - quite dramatically - of that ever happening. For instance: Maybe she would have declared, in 24 point type at the very top of her website homepage (if she had a website):

"I will help you celebrate marriage - the joyous union of one man and one woman."

Or any similar variation on that theme. She had (and has) a First Amendment right to express such an opinion; Colorado even conceded as much.** And perhaps, given her antipathy towards same-sex unions, she would have been comfortable - even eager - to communicate that to the world.

** NOTE:  In its brief on the merits, (pp 44-45) Colorado states that CADA "does not prevent [303 Creative] from stating that it opposes marriage for same-sex couples. Reasonable observers can understand that the Company might express negative views about such marriages while complying with its legal obligation to serve such customers. [CADA] regulates only speech that seeks to deny equal service based on a customer's protected characteristic."

It would have been a pretty simple way to solve her problem. I think I can pretty much guarantee that no same-sex couple in its right mind would request her services after spending the 4 seconds it took to read her declaration. Why in heaven's name would they? At last count, there were 2.6 gazillion wedding websites out there, the vast majority of which are perfectly happy to celebrate customers' same-sex weddings. They are scattered across the globe - but that makes not a whit of difference to customers, for whom a website in New Zealand is just as good as a website in Aurora, Colorado.

So while it is of course possible that a same-sex couple would have attempted to engage Smith's services (assuming that she actually built her website), I would rate the likelihood of that happening as somewhere between "low" and "virtually non-existent."

It's just a guess, of course, and yours is as good as mine. That's the problem with hypotheticals - it's all hypothetical.

**Interestingly enough, Smith submitted evidence to the district court purportedly showing that a same-sex couple - "Stewart" and "Mike" - had, in fact, contacted her on September 21, 2016, via the 303 Designs website inquiry form, inquiring about "design work for our invites" and "possibly a website" for their upcoming wedding.   Strange, given that Smith did not have a wedding website that was operational on September 21, 2016 (or ever). Stranger still, September 21, 2016 was one day after Smith filed her lawsuit in district court - what a coincidence!  And strangest of all: a few weeks ago, Melissa Grant of The New Republic contacted "Stewart" to ask him about the case - his name and email address was on the inquiry form that had been submitted into evidence. Lo and behold, he hadn't the faintest idea what she was talking about. It turns out that he had never heard of Lorie Smith or 303 Creative or "Mike," that in 2016 he was married - heterosexually - with a child, and and that he had never contemplated entering into a same-sex marriage.

Hmm. Either he's lying, or the 2016 inquiry was a fake, possibly ginned up to buttress Smith's standing argument. Turns out, of course, that she didn't need it - neither the 10th Circuit nor the Supreme Court required any actual request of this kind to that she had standing to raise her make-believe claim.

3. The Refusal Condition. Having actually built her website, and having received a request for design/hosting services from a same-sex couple, would Smith have refused to serve them?

Maybe. "No - I won't work for you. I refuse to do so."

But once again, there are so many other plausible options, many of which fall considerably short of constituting an actionable "refusal to provide services," which she might - hypothetically speaking, of course - have employed. If her goal was, as she claims, to avoid being forced to perform her creative services in support of same-sex weddings, she could have said to any same-sex couple foolish enough to seek her services: "Well, I'll take your money, but I have to warn you: I don't like same-sex unions and I'm going to make sure that I communicate that view prominently on your wedding's homepage. Are you OK with that? Or perhaps you'd rather take your business elsewhere?"  Or:  "For same-sex weddings I use a special template page that I have designed, with a grinning Satan in the top left corner and black drapes throughout. Some same-sex couples find that that doesn't comport with what they're looking for - you might want to check it out before you sign up."

*****

Finding that all this constitutes a "credible threat" to Smith - that all of these necessary preconditions would have been met so as to generate an actual CADA action against her - is entirely an act of imagination. Make-believe. If I do this and you do that, there will be a real case. If Smith's hypothetical claim had been properly tossed out, there are countless trajectories that events could have taken. Some of those trajectories end up with an actual "case" against her, one that the federal courts are authorized to resolve. Most of them, I would submit, do not; I think it considerably more likely, in the real world, that Smith would not have returned to court with an actual CADA case because one (or more) of the necessary preconditions would have failed to materialize. No Website, or no Request, or no Refusal, or no Action.

* * *

Standing requirements do more than insure that courts don't waste time and judicial resources on deciding make-believe cases; they are indispensable for our understanding of what it is that courts decide, when they decide. If this had been a a real case with actual facts, we might understand what the Court means by holding that Smith's "creative expression" is protected from interference. As it is, insofar as there is no expression, we're left to wonder what it might be.

It is not terribly surprising that the Court has issued an egregiously bad standing decision. Depressing and disturbing, perhaps, but not surprising. It does that, from time to time. Standing is about judicial power - the power to decide important questions on which the American people may be deeply divided. Like all governmental institutions, courts love power. It could've waited until a real case or controversy came to their doorstep to decide whether the First Amendment protects a refusal to provide web design/hosting services to a same-sex couple - but that's no fun!  Let's decide that today! We have so much to say about the question!

But what is surprising is that the three dissenting Justices (Sotomayor, Kagan, and Jackson) made absolutely nothing of this.  Not a single word about standing** in Justice Sotomayor's long (38 pages!) and passionate dissenting opinion.

I am at a loss to explain that.

**Actually, there was one word about standing: in Footnote 7 of the dissent, Justice Sotomayor describes an 1887 case, Memphis & C. R. Co. v. Benson, as holding that "a white man would be permitted to ride standing in the ladies' car on account of tobacco smoke in his car".

Here's a theory a friend of mine put forward - a little far-fetched, I grant you, but not entirely implausible, and the only one I've heard that makes sense of things. Just a few days before the Court ran roughshod over the constitutional case/controversy requirement in the 303 Creative decision, it ran roughshod over the constitutional case/controversy requirement in Moore v. Harper, which struck down the so-called "independent state legislature theory" in connection with the conduct of federal elections.

The Moore case was, as everyone from Justice Thomas to the Biden Administration's Solicitor General agreed, "indisputably moot." It could be some sort of record: ignoring standing, ripeness, and mootness requirements in a single week!

303 Creative allowed the Court's "conservative wing" to decide a hypothetical case in the manner it favored, while Moore allowed the Court's "liberal wing" to decide a hypothetical case in the manner it favored.**

**The 6 Justices in the majority in 303 Creative were:

[Roberts + Kavanaugh + Barrett] plus [Thomas + Alito + Gorsuch].

The 6 Justices in the majority in Moore were:

[Roberts + Kavanaugh + Barrett] plus [Sotomayor + Kagan + Jackson]

Do I detect the faint aroma of a deal? That way, everybody gets to play; you scratch your advisory opinion if you let us scratch ours. It's perfect: a hypothetical deal to let the Court decide hypothetical cases.

 

Comments

[Michael P]

Congratulations, you have “proven” that pre-enforcement challenges to laws are not judiciable.

If only you had bothered to read any of the previous essays that explain why your argument is wrong, you might have added something to the discussion.

ETA: https://www.nbcnews.com/politics/supreme-court/sham-customer-likely-didnt-affect-supreme-court-ruling-sex-weddings-ex-rcna92366 outlines some of the basic arguments about why pre-enforcement actions are valid. Among other things, there is a valid controversy when protected actions are chilled by invalid laws.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Thanks, I was going to ask about that. IANAL but I've read plenty of articles about pre-enforcement cases.

[Michael P]

Perhaps unsurprisingly, EV has covered the topic in some detail: https://reason.com/volokh/2021/12/10/pre-enforcement-constitutional-challenges/

[Randal]

David is quite clearly arguing that this case doesn't meet the threshold for a pre-enforcement challenge. Just "chilling" is not enough. From the opinion in the abortion case from the EV post you linked:

As our cases explain, the "chilling effect" associated with a potentially unconstitutional law being "'on the books'" is insufficient to "justify federal intervention" in a pre-enforcement suit. Instead, this Court has always required proof of a more concrete injury

[Michael P]

Yes, and he is arguing incoherently and without legal authority. He's not engaging with the (other) people who have previously explained why his argument is wrong. For example, just below, he quotes EV stating that pre-enforcement challenges *are* often available in situations like the one in this case.

[Randal]

Hm. Try reading more closely.

but generally not as to laws in which private citizens sue

This is a situation in which private citizens sue.

[David Post]

Michael P: Perhaps unsurprisingly, EV has covered the topic in some detail: https://reason.com/volokh/2021/12/10/pre-enforcement-constitutional-challenges/
And you've read what he said?
"There's no general federal right to them [i.e., pre-enforcement challenges]; they are often available when a law is enforced by government officials, but generally not as to laws in which private citizens sue (whether over abortion, speech, religious exercise, gun ownership or sales, or anything else)."

[Krayt]

Why should she spend $50,000 or more starting the business while a government official sits there and says, "I'll decide after you do it if it is illegal or not." Or if you have to violate your speech or religion or whatevs.

A free people should be able to ask the government before doing something, "is this illegal or not?" and get a clear answer.

And if the government says, "Illegal!", then challenge it in court before you are put in legal jeopardy by doing it. Or losing all your investment money.

Not a fan of it here, nor in certain financial regulations where government waits to see impact of business decisions on the rest of the market and only then decides if you are a criminal or not.

[Alpheus W Drinkwater]

This may be a good argument for how the law should be, but it doesn't really address how the law is, and whether or not the federal courts here have followed current law, or even acknowledged it.

[MN2828]

But, as the majority notes, state officials can bring charges under the act. CRS § 24-34-306(1)(b)("The commission, a commissioner, or the attorney general on its own motion may make, sign, and file a charge alleging a discriminatory or unfair practice in cases where the commission, a commissioner, or the attorney general determines that the alleged discriminatory or unfair practice imposes a significant societal or community impact."). Because the government (any commissioner or the Attorney General) can bring a charge of discrimination, the plaintiff need only show that she intended to engage in conduct that would arguably violate the act and a credible threat of enforcement. Susan B Anthony List v. Driehaus, 573 U.S. 149, 159 (2014) (“Specifically, we have held that a plaintiff satisfies the injury-in-fact requirement where he alleges "an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder."”) (citation omitted). She need not violate the law and face an enforcement action by Colorado in order to have standing.

Colorado stipulated that she intended to create the websites, what those websites would entail and that they would be her expressive conduct. While Colorado quibbled about whether it would have bothered to bring an enforcement action, it refused to disavow doing so and has a history of enforcement against similar conduct.

I don't see any real dispute that the plaintiff has standing. Had Colorado not stipulated to the facts that it did, the answer might be different. But we can't know because the stipulation precluded the presentation of the evidence that is purportedly lacking.

[Randal]

Colorado... has a history of enforcement against similar conduct.

On its own initiative? Or only after a private complaint?

[not guilty]

"Congratulations, you have 'proven' that pre-enforcement challenges to laws are not judiciable."

Uh, Professor Post never suggests anything of the sort. That you must resort to a straw man argument shows you have nothing of substance to offer.

Of course pre-enforcement challenges are viable where there is a credible threat of prosecution under a statute that contravenes the First Amendment. See, e.g., Steffel v. Thompson, 415 U.S. 452 (1974) (Plaintiff, who had twice been warned to stop handbilling on an exterior sidewalk of a shopping center against American involvement in Vietnam and threatened with arrest by police if he failed to do so, and whose companion continued handbilling and was charged with violating the Georgia criminal trespass law, had standing to challenge application to him of criminal trespass statute). The relevant question is whether Lorie Smith and 303 Creative had shown a credible threat of prosecution in this case.

The ugly reality is that the Tenth Circuit issued a ruling on the merits that a majority of SCOTUS could not abide, involving a plaintiff who claimed a fanciful and contrived burden on her religious belief. A dismissal for lack of Article III standing would not reach the merits, so the Supreme Court ignored its obligation to analyze standing sua sponte.

IOW, the Court cut a great road through the law to get after the Devil. (A Man for All Seasons (1960).)

[Lee Moore]

I suspect that in your handbill case, a plaintiff who had done no handbilling and simply claimed that the threat of prosecution had chilled him from doing so would have had the necessary standing too.

a plaintiff who claimed a fanciful and contrived burden on her religious belief

It was open to Colorado to try to demonstrate the fancy and contrivance. But if the complaint is that you have been chilled, how does your inactivity demonstrate that you haven’t been chilled ? Why would SCOTUS attempt the task of exposing the fancy and conrivance that Colorado’s expensive lawyers had baulked at ?

[not guilty]

The burden of pleading and proving Article III standing rests upon the challenger. Even where the matter is not raised by the parties, SCOTUS is first obliged to examine the plaintiffs' standing sua sponte, as a matter of the case or controversy requirement associated with Article III, to seek injunctive relief in the District Court. Juidice v. Vail, 430 U.S. 327, 331 (1977).

[Lee Moore]

I got not very far into Juidice v Vail, because it looked a bit complicated. But at first glance I spotted no suggestion that SCOTUS was obliged to go outside the record and engage in sua sponte investigation of facts outside the record. Maybe I’m wrong and feel free to correct me.

But if I’m right then the point is that the facts on the record would not support SCOTUS in denying standing.

The plaintiff’s claim to have been chilled is, of itself, evidence that she was chilled. The only contrary evidence is that she did squat. But as explained elsewhere this evidence is ambiguous. It could mean that she never intended to do anything, or it could corroborate her own evidence that she was successfully chilled.

Perhaps further investigation might reveal further evidence supporting the “never intended to anything” interpretation. Perhaps a foolish email, who knows ? But absent that, if you don’t add new facts to the record with a sua sponte investigation, the evidence of inactivity being ambiguous, SCOTUS would have no grounds to say that it was all a con.

[not guilty]

No, a federal appellate court does not go outside the record and engage in sua sponte investigation of facts outside the record. There is an obligation to review the record developed in the lower courts to determine whether the plaintiff pleaded and proved Article III standing in the district court. Even if the parties in the appellate court (including SCOTUS) do not raise any standing objection, the reviewing court is obliged to do so sua sponte.

In 303 Creative, the Supreme Court abdicated its responsibility and simply deferred to the Tenth Circuit analysis. This is particularly egregious in light of the district court's dismissal of the Accommodation Clause claim for lack of standing. (Adam Unikowsky compared and contrasted the district court's and the Tenth Circuit's standing analysis at https://adamunikowsky.substack.com/p/contrived-cases-make-bad-law.)

As I have suggested, I suspect that SCOTUS's dereliction of duty can be explained by its overweening desire to reach the merits to coddle a Christian plaintiff.

[David Nieporent]

Once again: 13 judges considered this case. 12 of them were convinced that there was standing. Not one of the 9 Supreme Court justices thought it was enough of an issue to raise. Colorado didn't even bother to argue it to SCOTUS on the merits (though it did at the cert stage).

Nobody argues that the 10th circuit applied the wrong test. All they do is disagree with its application of the test to the facts of this case. But Colorado stipulated to most of the facts that underlay the 10th circuit's conclusion. (And, to be clear, this was a 10th circuit that rejected 303's arguments on the merits; these weren't sympathetic judges stretching so they could rule in 303's favor.)

One is certainly free to say, "I think the 10th circuit got it wrong about how likely enforcement would be," but that's just quibbling; it's not something that deserves the furious "Oh my god this is a fake case that the courts didn't have the power to hear!!!!!!!!!!"

[Jason Cavanaugh]

SCOTUS did not rule on standing either way. You should read the decision, David.

Do you know what the majority opinion had to say on it? Paraphrased "Nobody is arguing standing, so we're ignoring it."

The only court to rule in favor of standing, was the 10th. It's entirely reasonable to think that they only did so because of the lie regarding Stewart and Mike, which meant that two of the hypotheticals were allegedly no longer hypothetical.

[David Nieporent]

It's not a "ruling" on standing. It's an acceptance of the fact that there was standing, in a context in which standing was acknowledged to be at issue.

In the vast majority of opinions issued by the Supreme Court, standing is never so much as mentioned (despite the obligation of every court to assure itself that standing exists). Why? Because it's not seriously disputed so there's no reason to. Sometimes in later cases down the road people try to cite the fact that SCOTUS heard a particular case as proof that there's standing in a comparable situation. And SCOTUS will say, "No, it wasn't raised and we never addressed it in that case. You cannot assume that the mere fact that we heard the case establishes standing. We do now address it in this case, and find so-and-so."

But that's not the situation we have here. Standing was not ignored; it was known to be an issue, SCOTUS did mention the question, and rejected the notion that it was an issue, before passing on to the merits.

(And, again, the dissenters also did not raise it either.)

[not guilty]

I suspect the Tenth Circuit also wanted to reach the merits badly enough to misread the record on standing, albeit for reasons different from SCOTUS.

[David Post]

David Nierpont: One is certainly free to say, “I think the 10th circuit got it wrong about how likely enforcement would be,” but that’s just quibbling; it’s not something that deserves the furious “Oh my god this is a fake case that the courts didn’t have the power to hear!!!!!!!!!!”
Well, I think the 10th Circuit got it wrong about how likely enforcement would be. You call that a "quibbl[e]." I call that an error of constitutional dimensions. It is a fake case - where is the website? When did Colorado compel her to speak?
And if you can find a place where I have used more than 2 exclamation points, I'd like to see it.

[David Nieporent]

I don't know why you keep saying "Where is the website?" when this was expressly a pre-enforcement challenge.

[Randal]

You said it was ready to go. The case ended over a week ago. It doesn't take that long to make a webpage public.

So what's the holdup now?

[Social Justice is neither]

So Masterpiece Cake and the actions and reasoning of the government officials don't exist in your universe? Are you truly this obtuse or are you just a fan of legal persecution?

[Nelson]

Masterpiece Cakeshop wasn't a free speech case, as has been pointed out numerous times. It was decided on the animus by a small board in Colorado towards Masterpiece's religious beliefs. It didn't address anti-discrimination or public access laws at all.

[Michael P]

Colorado has prosecuted exactly this kind of case in the past. The fact that they previously lost at the Supreme Court has not deterred them. There's not really any speculation here about what would happen.

[Randal]

That’s a straight-up lie. And don’t say Masterpiece Cakeshop. That wasn’t speech.

This just isn’t a problem that actually comes up in the real world, for all the reasons David raised.

So in the end it doesn’t really matter anyway… except that it gave the Supreme Court an opportunity to issue an opinion advising us all how disgustingly anti-gay it is.

[Harvey Mosley]

"And don’t say Masterpiece Cakeshop. That wasn’t speech."

You sound like those judges who give officials Qualified Immunity for everything because what they did isn't exactly like the conduct in a previous case.

Judge: I know that previous caselaw says that a cop can't do "X" to a suspect but this case has two cops doing "X" to three suspects so it is different.

[Randal]

Uh... whether the product counts as speech or not was pretty much the defining aspect of the case.

[not guilty]

“Uh… whether the product counts as speech or not was pretty much the defining aspect of the case.”

I disagree. While Masterpiece Cakeshop was a 7-2 decision, only Justices Thomas and Gorsuch (the latter joined by Justice Alito) opined that creating a wedding cake is “speech”. The peg on which Justice Kennedy’s opinion of the Court hung its hat was that the Colorado Civil Rights Commission’s treatment of the baker’s case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint. 138 S.Ct. 1719, 1731 (2018). That was a Free Exercise clause violation, not based on Free Speech guaranties.

[Randal]

That's my point. That's why what happened in Masterpiece (not speech) isn't at all the same as what happened in 303 Creative (speech).

[Michael P]

Which court ruled that Masterpiece Cakeshop's cakes were not speech? Colorado is currently persecuting the bakery over a pink-and-blue cake request specifically because of its expressive meaning. As "not guilty" points out in another thread, lefties usually believe that such transparent animus against a protected group should fail even rational-basis review. Given the state's proven history of animus against this website designer's protected group, she is absolutely entitled to pre-enforcement review here.

[Randal]

You are simply retarded if you think a pink-and-blue cake is speech.

As not guilty pointed out above, only three justices in Masterpiece thought cakes might count as speech. And even then it wasn't clear how custom and expressive a cake would have to be to count.

[David Nieporent]

You are simply retarded if you think a pink-and-blue cake is speech.

Is burning a draft card speech?

[not guilty]

According to United States v. O'Brien, 391 U.S. 367, 376-77 (1968), the destruction of a draft registration certificate is not constitutionally protected activity, even though it may have combined "speech" and "nonspeech" elements in the same course of conduct.

[not guilty]

"Which court ruled that Masterpiece Cakeshop’s cakes were not speech?"

Uh, have you read Justice Kennedy's opinion of the Court in Masterpiece Cakeshop? "The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech." 584 U.S. ___, ___, 138 S.Ct. 1719, 1723 (2018).

Three justices took the position that creating the cake was "speech". The remaining justices who voted to reverse the Colorado Court of Appeals did not. Justice Ginsburg in dissent (joined by Justice Sotomayor) at footnote 6 wrote "As Justice Thomas observes, the Court does not hold that wedding cakes are speech or expression entitled to First Amendment protection. . . . Nor could it, consistent with our First Amendment precedents."

[Kazinski]

I hope you aren't saying that cake baking and decorating aren't artistic endeavors.

Here's jut the top 10 cake baking reality shows:

10 Best Cake Baking Shows
CAKE BAKING SHOWS.
Cake Wars.
Cupcake Wars.
Sugar Rush.
Extreme Cake Makers.
Ultimate Cake Off.
Wedding Cake Championship.
Duff Takes the Cake.

If cake baking is just ministerial then why would there be so many shows extolling its artistry and creativity?

[Randal]

There are lots of all kinds of cooking shows, terrorist-boy. Are you saying restaurants can discriminate again?

[Nelson]

And there are dozens of reality shows, but that doesn't make them real.

[Dave_A]

Masterpiece Cakeshop relied on the exact same 'free speech' argument as 303.

Except that decorating a cake is arguably much closer to 'speech' than writing computer code for a website.

The entire case is contrived.
- Code, written for hire, is not the 'speech' of the programmer. If code is speech, then code written for hire is the speech of the *client* not the developer.

- There is no appreciable cost to opening a web-design business - certainly not 50k.

- There was no business for Colorado to punish, no harm to the defendant.... There is no evidence that the defendant had the technical skill required to operate such a business - and the way the arguments being put forward approach the subject makes it highly likely that she did not.

The court wanted to (wrongly) overturn public accommodation laws & contrived a rationale to do so. Period.

[Nelson]

"Masterpiece Cakeshop relied on the exact same ‘free speech’ argument as 303."

I'm certain it didn't. Masterpiece relied on animus by a specific board towards Masterpiece, not any aspect of free speech. Cultural conservatives seem to believe it was some broad decision supporting anti-gay business practices, but it wasn't.

[David Nieporent]

Congratulations on not getting any of your facts right, and being days late in doing so!

[MN2828]

Did you not read the 303 Creative opinion?

The plaintiff currently offers website and graphic design services. She wanted to expand into wedding websites in addition to whatever other websites she currently designs. The parties agreed that the websites she creates are her expressive conduct. In particular, they agreed that the wedding websites will be “customized and tailored” through close collaboration with individual couples, and they will “express Ms. Smith’s and 303 Creative’s message celebrating and promoting” her view of marriage. So, there was no issue that her websites are her expression; not the client's expression.

Are cakes similarly expressive? I don't know. But it doesn't matter for standing purposes. Standing does not turn on whether the plaintiff is correct on the merits. If Colorado went after the baker for refusing to make a cake that he believes is expressive, it is not much of a stretch to believe that Colorado would go after the plaintiff here over her websites. Notably, Colorado refused to say that it wouldn't prosecute her while arguing that her planned conduct would violate the law. All that is required is a credible threat of enforcement, not a guaranty of enforcement.

[Dick King]

If you take a look at 303 Creative's website, it's clear that she doesn't write fill-in-the-blanks code that the customer fills in themselves to actually create the site. She claims to give personal service to every client. Maybe it's puffery, but her "past work" aea makes it look plausible.

She expresses that at https://303creative.com/about/ .

Furthermore, in what universe is writing computer code that makes the eventual viewer see an intended presentation not speech?

-dk

[Vandalia]

How is that any different than the lawsuits against state laws limiting or banning abortion?

For example, in the Indiana case,

https://public.courts.in.gov/Decisions/api/Document/Opinion?Id=1Eh2oWpb_GbvfKyXKxu8FxkviAvRwgMVnYvaYBnZD3AqI20eI2QSYRQieWf5_wDP0

there is no indication of an actual, specific woman who would be denied an abortion. It is all hypothetical.

[not guilty]

Did you read the decision you link to? At page 8 the Court writes "We first hold that Plaintiffs have standing because almost all of them
are abortion providers, and it is undisputed that Senate Bill 1 criminalizes their work."

The more detailed discussion of standing under Indiana law -- which is separate and distinct from Article III standing which is essential to federal courts' exercise of subject matter jurisdiction -- appears at page 9-10 of the opinion.

[Dan Schiavetta]

By contrast, the Court has ruled that someone who had already been chokeholded by the Los Angeles police couldn’t get an injunction stopping the chokehold policy because he could not prove that he would be chokeholded in the future. Lyons v. City of Los Angeles, 1983.

[Lee Moore]

What constitutional right did the chokehold policy chill him from exercising ?

[SRG]

Some rights are not exercised but protected. You don't exercise the right to be free of unreasonable searches, for example.

[Lee Moore]

But you do not experience any constitutional harm untill you are unconstitutionally searched.

Whereas with free speech, you experience constitutional harm whenever you hold your tongue for fear of unconstitutional punishment.

[SRG]

But you have to be in the position to make the decision to hold your tongue. Arguing that at some future stage you might have to hold your tongue isn't the same as claiming you're having to hold yout tongue now.

[Lee Moore]

I agree. You suffer the constitutional harm when you hold your tongue, not when you think you might at some point have to hold your tongue. But it is in the nature of tongues, that they are always at the ready.

What if we were toying with the idea of establishing a new newspaper ? We might have to plan it for years, researching the market, acquiring premises, interviewing and hiring employees, working out our distribution channel and our ad maket. Our new newspaper, unlike our tongue, is not always at the ready.

But IIRC the court has said something to the tune of - the 1st Amendment protects the instrumentalities of speech as well as the speech itself. So if we are deterred from creating our new newspaper by a law that says that newspapers must in certain circumstances say this or that, that we have objections to saying; then we are currently deterred from embarking on the creation of our chosen instrumentality of speech, even if the actual speech is in the future and even then may not occur.

Being chilled into holding the creation of your instrumentality, is - if instruments of speech are protected as much as speech itself - tantamount to being chilled into holding your tongue.

[BrotherMovesOn]

Well, he claimed his 1st, 4th, 8th and 14th amendment rights were abrogated by the policy.

[Lee Moore]

Unsuccessfully.

[Dan Schiavetta]

Fortunately Lorie Smith was successful. That is, until she got chokeholded.

[John F. Carr]

In Roe v. Wade it was certain that similarly situated women would continue to pop up even though the case was moot as to the plaintiff. In Biden v. Missouri it was very unlikely that a similar case would come along if the courts lacked jurisdiction. This case falls between them. There is a genuine federal question, the question will be asked again, the question is worth the court's time, and if this plaintiff lacks standing we expect another one to come along with a stronger case.

[Lee Moore]

In Biden v. Missouri it was very unlikely that a similar case would come along if the courts lacked jurisdiction.

Expand please.

[John F. Carr]

Sorry, I meant Biden v. Nebraska, the student loan case. Missouri was found to have standing but Nebraska was the state in the caption.

[Lee Moore]

It was more the idea of it being unlikely that any similar case would come along.

I should have thought it was very likely indeed. Emergencies are ten a penny.

[not guilty]

In Roe v. Wade it was foreseeable that Norma McCorvey would again become pregnant, such that denial of an abortion under the challenged Texas statutes was capable of repetition yet evading judicial review.

[Davy C]

"But that's just speculation! She'd have to have sex, and then a sperm would have to fertilize an egg, and then the egg would have to implant, and then she'd have to seek an abortion, and then get caught, and then the state would have to prosecute her! It's like impossible that all those things would happen! Has she even TRIED to get pregnant again since she started this court case?"

[not guilty]

An issue being capable of repetition yet evading judicial review is an exception to mootness, which is a doctrine separate from standing. Article III standing is evaluated at the time of filing of the suit.

The plaintiff in Roe alleged that she was unmarried and pregnant; that she wished to terminate her pregnancy by an abortion "performed by a competent, licensed physician, under safe, clinical conditions"; that she was unable to get a "legal" abortion in Texas because her life did not appear to be threatened by the continuation of her pregnancy; and that she could not afford to travel to another jurisdiction in order to secure a legal abortion under safe conditions. 410 U.S. 113, 120 (1973). She accordingly had standing. Id., at 124.

[The Margrave of Azilia]

The point about advisory opinions remains, no matter which aspect of the Court's anti-advisory-opinions doctrines you're dealing with.

[Lee Moore]

The point, Shirley, is not that she may be punished in future for doing a future speechy thing, but that she is currently deterred (aka chilled) by the threat of future punishment from doing a current speechy thing, ie putting in time, effort and money to establish a business intended to do speechy things.

It would have been open to Colorado to say that in their opinion Smith did not have any intention of setting up a speechy business and so was not in fact chilled. But they didn’t. And it’s easy to see why not. If their best evidence was the fact that Smith hasn’t done anything about setting up that business, then what is their response to her obvious reply “Of course I’ve done nothing ! Because I’m chllled from doing so ! There's no point starting anything until the courts have ruled that you can’t immediatey close me down” ?

[gVOR08]

Is there any evidence she put any effort into establishing a wedding web site? As the original post points out, she’s had seven years. Has she actually done anything except sign the papers put in front of her by the conservative legal grifters who pursued the case?

[damikesc]

You mean the grifters who won the case? Those grifters?

Just checking.

[Purple Martin]

The Alliance Defending Freedom? Those grifters?

Adams v. University of North Carolina Wilmington
Arizona Christian School Tuition Organization v. Winn
Ayotte v Planned Parenthood of Northern New England
Bishop v. Oklahoma.
Bostic v. Rainey
Bronx Household of Faith v. Board of Education of the City of New York
Brush & Nib v. City of Phoenix
Burwell v. Hobby Lobby
Cochran vs. City of Atlanta
Dobbs v. Jackson Women's Health Organization
Elane Photography v. Vanessa Willock
Elk Grove Unified School District v. Newdow
Good News Club v. Milford Central School
Gonzales v. Carhart
Holt v. Hobbs
Masterpiece Cakeshop v. Colorado Civil Rights Commission
McCullen v. Coakley
Meriwether v. Hartop
National Institute of Family and Life Advocates v. Becerra
Perry v. Schwarzenegger
Reed v. Town of Gilbert
Rosenberger v. University of Virginia
Scheidler v. National Organization for Women
Town of Greece v. Galloway
Trinity Lutheran Church of Columbia, Inc. v. Comer
Williams v. Vidmar

Yes, those grifters.

[Rev. Arthur L. Kirkland]

The Alliance Defending Freedom folks are not grifters so much as obsolete, gullible, bigoted culture war roadkill.

[Scooter]

NPC Alert.

[damikesc]

Just call them "winners".

[Alpheus W Drinkwater]

Or call them successful grifters.

[Purple Martin]

...or skillful opportunists, as all successful grifters are.

[Rev. Arthur L. Kirkland]

Let's see how well the Alliance Defending Freedom fares after better Americans enlarge the Supreme Court.

Me, I don't see much future for superstition-addled, disaffected bigots in modern America.

[Lee Moore]

Who would build an abortion clinic, and staff it up, if they knew that the first time they did an actual abortion would put them in jail for 20 years ?

Who would even draw up plans for an abortion clinic or register a corporation to operate the clinic ?

The fact that she has done squat in 7 years is evidence that :

(a) she never had the smallest intention of doing anything
(b) she was successfully chilled by the law

It would be fair for Colorado to try to show it was (a) not (b). They didn't. What enquiries do you think SCOTUS ought to make sua sponte ?

[David Nieporent]

Is there any evidence she put any effort into establishing a wedding web site?

Glad you asked. Yes. She already created the web page announcing her offering of wedding website services. She did not make it public because the whole point was that she wanted the court to rule on her challenge first, but it was ready to go as soon as she won.

As the original post points out, she’s had seven years. Has she actually done anything except sign the papers put in front of her by the conservative legal grifters who pursued the case?

Um, in those years she was waiting for the court to rule. You bring a pre-enforcement challenge because you're not willing to risk punishment.

[Jason Cavanaugh]

Odd then that her website still doesn't offer such services, if it was ready to go 'as soon as she won.'

[Michael P]

Web standards have changed significantly over the last seven years. The frameworks that are often used on the server side of a web site have, in many cases, changed even more over that time. Most sophisticated sites from seven years ago would need significant revision and re-testing before they could be deployed now.

[Jason Cavanaugh]

"Sophisticated" heh.

Have you bothered to look at her site?

You know, it's ok once in a while for you to admit the truth. You guys got what you wanted - it's ok now to admit that she lied and fabricated evidence.

[David Nieporent]

Oh, please. The decision was one week ago, with the intervening week being a holiday week. If she still isn't advertising such services in a month, then you can talk about it.

[David Post]

David Nieporent: Is there any evidence she put any effort into establishing a wedding web site?

Glad you asked. Yes. She already created the web page announcing her offering of wedding website services. She did not make it public because the whole point was that she wanted the court to rule on her challenge first, but it was ready to go as soon as she won. Where is this website? If it was “ready to go as soon as she won,” now that she has won it should be up and running, no? Where is it? Just curious.

[Rev. Arthur L. Kirkland]

Why quibble over just how much Lorie Smith and her lawyers lied on their Mission From God to smite the gays?

The important point is that Lorie Smith is a disgusting right-wing bigot who is destined to become culture war roadkill in an America that becomes less White, less religious, less rural, less bigoted, less backward, and less conservative each and every day.

[Kazinski]

She's probably too busy dealing with all the death threats she and her family got after the ruling

'I've Received Many Death Threats': Christian Graphic Designer Heading to Supreme Court Reveals Backlash, Her Refusal to Back Down - Faithwire
https://www.faithwire.com/2022/12/05/ive-received-many-death-threats-christian-graphic-designer-heading-to-supreme-court-reveals-backlash-her-refusal-to-back-down

[Dave_A]

Deterred from an action that (a) it hasn't been demonstrated she is capable of doing, and (b) that is very, very much *not* her personal speech...

The arguments in this case make it pretty clear that even if a gay couple asked her to make a website, she lacked sufficient technical skill and understanding to actually develop websites.

[Josh R]

On the one hand, given that Colorado stipulated to Smith offering an expressive, customized service, granting standing seems right. On the other hand in spite of the stipulations, we don't really know how Colorado would have enforced the law. Would they have only required her to create websites based on prior designs for opposite-sex couples where she did nothing more than fill in names, dates and places (she object to doing so, but I think that requirement ought to be permissible)? It might have been better to wait for a specific case to better understand the contours of the law.

[David Nieporent]

Would they have only required her to create websites based on prior designs for opposite-sex couples where she did nothing more than fill in names, dates and places (she object to doing so, but I think that requirement ought to be permissible)?

Maybe that would've been permissible — I doubt it, for the same reason I don't think social media can be required to carry other's speech — but that's irrelevant because her undisputed evidence was that she wasn't offering fill-in-a-template service.

[Ben 6]

The point is that standing and jurisdiction was stipulated.

Both parties *stipulated* that there was a controversy and that jurisdiction existed, and stipulated what the boundaries of the controversy were.

David Post says it is "black letter law" that there must be a real controversy for jurisdiction to exist. But here SCOTUS accepted jurisdiction based on a *stipulated* controversy.

Since SCOTUS decides what SCOTUS' jurisdiction is, I suggest it is now black-letter law that where the parties

* stipulate that a controversy exists, and
* stipulate the boundaries of the controversy, and
* stipulate that jurisdiction exists,

then it is in the power of SCOTUS to accept jurisdiction, at least as a mater of discretion.

Since SCOTUS decide what SCOTUS' jurisdiction is, this seems a slam-dunk conclusion.

[not guilty]

Wrong. Parties cannot stipulate subject matter jurisdiction in a federal court. FW/PBS v. City of Dallas, 493 U.S. 215, 231 (1990):

The federal courts are under an independent obligation to examine their own jurisdiction, and standing "is perhaps the most important of the jurisdictional doctrines." Allen v. Wright, 468 U.S. 737, 750 (1984).

"Every federal appellate court has a special obligation to 'satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review,' even though the parties are prepared to concede it. Mitchell v. Maurer, 293 U.S. 237, 244 (1934). See Juidice v. Vail, 430 U.S. 327, 331-332 (1977) (standing)."

"And if the record discloses that the lower court was without jurisdiction, this court will notice the defect, although the parties make no contention concerning it." Bender v. Williamsport Area School Dist., 475 U.S. 534, 541 (1986).

[David Nieporent]

The point is that standing and jurisdiction was stipulated.

You can't stipulate to either standing or (subject matter) jurisdiction. (You can stipulate to personal jurisdiction). You can, however, stipulate to facts that help establish those things, though the court is not bound by such stipulations and can reject them if they're obviously false. (For example, the parties can stipulate that Party P is a citizen of state P and Party D is a citizen of state D, to establish diversity jurisdiction. But if it comes to the court's attention in some way that Party D is actually a citizen of state P, the court can disregard the stipulation and toss the case.)

[Brett Bellmore]

Of course you can stipulate it. You can stipulate that the Moon is made of cheese. The courts aren't obligated to accept the stipulation, certainly. But can you stipulate it?

Yes, trivially. They did so stipulate, so they can so stipulate.

And the court can just as much chose to accept that stipulation, rather than investigate independently, as it can chose to reject it.

[David Nieporent]

Oh, stop playing word games, Brett. "Dad, can I have some more cake?" "You can, but you may not."

[David Post]

Josh R:
It might have been better to wait for a specific case to better understand the contours of the law.
Exactly.

[Lee Moore]

It seems to me that Post's annoyance is not really to do with the procedural point, but to do with the merits precedent. I have looked in vain for his diatribe about the procedural flaws in Moore - it's the merits result in 303 Creative that has got up his nose.

And the reason is of course that while it's on the books, not nuked by the courts, the Colorado law is very useful. It chills. And other laws in other states can do their chilling work too. SCOTUS has effectively shot down not just Colorado's law - as applied to religious dissenters - but everybody else's too.

And it is precisely because Post likes the chilling - on this subject - that the procedure in 303 has provoked a Post post, while the procedure in Moore did not.

[David Nieporent]

SCOTUS has effectively shot down not just Colorado’s law – as applied to religious dissenters – but everybody else’s too.

It was a speech case, not a free exercise case.

[David Post]

Lee Moore:
It seems to me that Post’s annoyance is not really to do with the procedural point, but to do with the merits precedent. I have looked in vain for his diatribe about the procedural flaws in Moore – it’s the merits result in 303 Creative that has got up his nose.
Not really fair. I didn't post a diatribe about Moore because I didn't, to be candid, quite follow the argument on mootness when I read it through initially. [It's mind-numbingly complicated]
And one other thing: a terrible standing/ripeness decision is much, much more damaging to the work of the federal courts than a terrible mootness decision. Why? Because litigants have a strong incentive to bring hypothetical lawsuits (if the courts let them); but moot cases (which, by definition, can produce no result that will change the status quo)? Not so much.

[Randal]

My takeaway of the Moore mootness analysis was... let me try to remember...

If North Carolina had won, they would have had a new option available to them, of simply immediately reinstating the originally-contested maps with no further hoopla. And maybe that would even happen automatically.

But since they lost, they have to go through all the motions again... which could plausibly result in a different set of maps in the end.

The argument for mootness was essentially that "having to go through the motions or not" doesn't make enough of a difference to count as a remediable controversy.

[David Post]

And it is precisely because Post likes the chilling – on this subject – that the procedure in 303 has provoked a Post post, while the procedure in Moore did not.
Not true. See my response to Lee Moore's comment below.

[David Post]

Lee Moore:It seems to me that Post’s annoyance is not really to do with the procedural point, but to do with the merits precedent.
And let me just add as an FYI: I'm wa-a-ay closer to the majority in 303 Designs on the merits than you might believe. Like the majority, I do NOT believe the State can constitutionally compel Lorie Smith to adopt a particular message about same-sex weddings in any of her "creative expression." If it had actually done so, I'd be on her side. At least then I'd have some idea what her creative expression actually was, and how the compulsion really operated. But I think there is a very, very strong likelihood that she never would have been so compelled, for all of the reasons I set forth in the O.P.

[Rev. Arthur L. Kirkland]

This "case" was mainly a handy opportunity for conservatives to engage in lack-of-virtue signaling, demonstrating their bigotry and backwardness to poorly educated, gullible, bigoted voters.

The Republicans didn't maneuver for control the Supreme Court so they could squander an opportunity to proclaim their revolting bigotry throughout our depleted rural and southern backwaters.

[Dave_A]

The Colorado law simply copies the federal Civil Rights Act and expands it to cover sexual orientation/identity.

If it's unconstitutional to require wedding service-providers to serve all customers without regard to their sexual orientation because this would be 'compelled speech' then what about race?

And how many other actions performed for-hire are the 'speech' of the contracted employee doing the work?

It's a bad decision, flat out - born of a desire to grant special rights to religious plaintiffs without a thought as to how to contain the impact.

[David Nieporent]

1) The issue wasn't whether it was "unconstitutional to require wedding service-providers to serve all customers without regard to their sexual orientation."
2) Yes, race too. The ruling has nothing to do with the identity of the protected class.
3) There is no "employee" here.
4) All of them. When I speak words, that is my speech whether or not I am the one who wrote the words and whether or not I am being compensated for saying them.
5) This was not a case about religion.

[Mark Leen]

This statement shows a complete lack of awareness: "I think I can pretty much guarantee that no same-sex couple in its right mind would request her services after spending the 4 seconds it took to read her declaration. Why in heaven's name would they?" Just look at what keeps happening to the Masterpiece Cakes guy.

[Lee Moore]

Maybe they’re not actual same sex couples, but just activist folk activising.

There's also the right mind caveat - the "No True Same Sex Couple" defense.

[Randal]

I looked at what keeps happening to the Masterpiece guy. He keeps trying to deny service to gays. That's illegal.

I'm sorry but "a pink and blue cake" is not speech. If you sell pink and blue cakes to straight people, you have to sell them to gay people.

[damikesc]

If they are not speech --- then bake your own damned cake.

They went to him because of his artistry --- which is speech. Period.

[Davy C]

They went to him because of his artistry? Hah. They went to him just so they could file complaints. No reason to think they wouldn't do the same to this website builder.

[Randal]

The website builder still can't deny service to gays. Sorry Davy! So you can bet that they will try to get her to deny them service.

If Masterpiece guy would stop actually denying service to gays, then he wouldn't have complaints filed about him.

I expect if there were a cakeshop that denied service to Jews, there'd be a lot of Jews intentionally provoking them too. And if you think all this Christian-persecution-grievance-peddling isn't somewhat performative as well, then you're delusional. People aren't going to just quietly accept being illegally discriminated against.

[David Nieporent]

I expect if there were a cakeshop that denied service to Jews, there’d be a lot of Jews intentionally provoking them too.

I'd like to think Jews were more sensible, and would not want to give patronage to antisemites, but you're probably right.

I certainly don't understand the mindset of "This person hates me; I want to force him to take my money." I'd prefer to do business with people who aren't bigots (particularly towards me and mine).

[damikesc]

Masterpiece happily sells cakes to gays.

He does not do contract work for them.

One cannot be FORCED to enter a contract.

[not guilty]

Cake baking is not speech. It consists of mixing the ingredients together, forming the cake, baking the cake, frosting the cake. It may or may not involve delivering the finished product to the consumer.

"The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech." Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n, 584 U.S. ___, ___, 138 S. Ct. 1719, 1723 (2018).

In the alternative, if and to the extent that cake baking includes some modicum of expression, the four-part test of United States v. O'Brien, 391 U.S. 367, 376-77 (1968), would apply:

[W]hen "speech" and "nonspeech" elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. . . . [W]e think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression, and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

As SCOTUS has recognized, a state eliminating discrimination and assuring its citizens equal access to publicly available goods and services, which is unrelated to the suppression of expression, plainly serves compelling state interests of the highest order. Roberts v. U.S. Jaycees, 468 U.S. 609, 624 (1984). Justice Gorsuch's opinion of the Court in 303 Creative expressly reiterated that principle as recognized in Roberts.

[damikesc]

ANYBODY can bake a cake. Recipes and instructions are widely available.

They go to professional bakers for their artistry. Art is speech. Period.

[David Nieporent]

I do not go to professional bakers for their artistry. I go to professional bakers for their competence.

[Dave_A]

What 'artistry'?
An undecorated cake has no artistry associated with it. It's a generic product, kind of like a pair of shoes.

The cake order was specifically made undecorated *to avoid allowing him to hide behind the 1st Amendment* because the product he was refusing to sell has ZERO unique work involved.

And they want him to be forced to obey the law, the way every other person in Colorado, who can't hide behind religion, has to.

[TwelveInchPianist]

Why don't you just admit that the claim is disingenuous? Rightly or wrongly, lots of people don't want businesses who deny services to gays to operate, and if there is such a business, people will request such a service in order to get the business punished.

So if 303 Creative were to offer a straights-only wedding website design, service, it is a virtual certainty that she would have received a request to design a website for a gay wedding, and been reported when she turned it down.

[Randal]

That’s absolutely true. And I think the dissent is right — if she were to offer a straights-only wedding website design service, there’s no fucking way that she’s being genuine. It’s clearly a pretext for illegally discriminating against gays.

If she weren’t being disingenuous, she’d offer a “Traditional Christian Wedding Website” service, not a “Anything-But-Gays Website Service.” Former, no problem. Latter, illegal discrimination... until last week.

That’s (one reason) why I think the courts messed up in finding standing here. I think if everyone were acting reasonably, there likely never would have been a case or controversy, or at minimum, it would be more obvious based on the facts which party was the one being unreasonable.

Now we’re stuck with a ruling that allows service providers to have policies that are pretexts for discrimination. Don’t cry when you start seeing “No Christians” policies.

[BadLib]

If she weren’t being disingenuous, she’d offer a “Traditional Christian Wedding Website”

Had she done that, she would still have been subjecting herself to sanctions under Colorado’s well established interpretation of CADA. In this case it would have been due to CADA’s ban on discrimination based on religion as she would have been “excluding”, for example, Muslims from her business.

This case would have still ended up exactly where it did with the same result.

[Randal]

No. Even assuming that Colorado had put on the same defense, the decision would've been narrower and unanimous.

[David Nieporent]

The cases are analytically identical.

[Randal]

Well, you keep saying (including below) that the dissent is "lying or stupid." That just means you don't understand it.

Try reading it again with an open mind.

[David Post]

Randal: That’s (one reason) why I think the courts messed up in finding standing here. I think if everyone were acting reasonably, there likely never would have been a case or controversy, or at minimum, it would be more obvious based on the facts which party was the one being unreasonable.
Exactly right. There are a million ways that this potential dispute could have been headed off at the pass and disappeared into the great ocean of "disputes that were resolved by reasonable people acting reasonably."

[Social Justice is neither]

You're calling the activists and the anti-religious zealots on that board reasonable people? OK, you have no connection to the real world, lost in your ivory tower as you are.

[Lee Moore]

I’m sorry but “a pink and blue cake” is not speech. If you sell pink and blue cakes to straight people, you have to sell them to gay people.

Destipulating your assumed conclusion, I'm not sure the "you do it for X, you must do it for Y" really works.

If I were to feel like saying "I really love you very deeply" to X, I doubt that I can be required to say the same to Y.

And as for conduct with a expressive meaning, I mentioned on a thread the other day. the illustration of a bartender refusing to serve a customer. A beer is even more generic than a pink and blue cake, but refusing to serve one can mean all sorts of different things depending on the context.

[Randal]

But we're not talking about what the refusal means. Business owners aren't entitled to refuse service to people in order to make expressive points. That doesn't even work in the context of boycotts, no way it works in the context of public accommodation.

Business owners also aren't entitled to refuse service to people in order to prevent those people from making expressive points. This is why the cake man fails. To the extent the cakeshop patrons are using pink and blue to make expressive points, the cake is hardly involved. It's the colors. Could the frosting-maker (or the food-coloring-maker) decline to sell pink frosting to gay people on the theory that they're going to use it to express things with which the frosting-manufacturer disagrees?

No.

[Dave_A]

The entire point of the Civil Rights Act of 1965 (and state laws like CADA which are modeled after it) is to compel businesses to serve all customers without regard for membership in a protected class...

Originally it was just race/sex/religion/national-origin/veteran-status. States like CO added more categories.

The intent was to deal with 'whites only' lunch counters in the south, and similar - to make anyone who will serve a white person a sandwich do the same for a black person.

It was litigated to hell and back, including the same tactic of people claiming a religious exemption to having to serve all races.

The government won, the laws were upheld... And it should have stayed that way.

[David Nieporent]

And it should have stayed that way.

It did. You don't understand the case that you're ranting and raving about.

[Brett Bellmore]

But he doesn't deny service to 'gays'. There's plenty of services they can get from him. He denies them the service they happen to want, custom cakes celebrating SSM or 'transitioning', and they want it from him, specifically, because they know he doesn't want to do it!

They're not there for cake. They're there to see their enemies driven before them, and hear the lamentations of their women. They're there for the thrill of crushing the opposition. If they happened to get a cake, too, that would just be a bonus.

[Randal]

Lol. You can't get around public accomodations laws that way.

I'm sorry but our lunch counter isn't available to your kind. But if you come around back we have some lovely, hand-made potholders available for purchase!

[Dave_A]

The (weak) argument that a decorated cake is 'speech' is *specifically* why a NOT-decorated cake was ordered.

In the original 'Masterpiece Cakeshop' case, he claimed that he would serve gay/trans customers - just not decorate custom wedding cakes for them.

The point is to prove that he's a liar and a bigot - that he won't even sell a plain, undecorated cake if he knows the customer is gay/trans.

[Rev. Arthur L. Kirkland]

Lorie Smith is a disgusting bigot on a Mission From God -- a bigoted, illusory, paltry god who tells her that making life miserable for gay people is more important than telling the truth.

The good news is that, like all clingers on the wrong side of history and the losing end of the culture war, she will be replaced in the normal course of American progress.

[Davy C]

. Moreover, as noted above, this particular event still hasn't happened; in the seven years since she filed her complaint no wedding website has appeared.

Because until just now it wasn't safe to do so. You think she's going to seek relief and then not wait for it? What would be the point of doing a pre-enforcement challenge if she was going to invite enforcement anyway?

What's the threshold where we're allowed to credit someone's statement that they want to do a thing?

So while it is of course possible that a same-sex couple would have attempted to engage Smith's services (assuming that she actually built her website), I would rate the likelihood of that happening as somewhere between "low" and "virtually non-existent."

You ignore that a gay lawyer decide to purposely seek the services of Masterpiece Cakeshop just to be able to file a complaint against them.

"For same-sex weddings I use a special template page that I have designed, with a grinning Satan in the top left corner and black drapes throughout. Some same-sex couples find that that doesn't comport with what they're looking for—you might want to check it out before you sign up."

Do you believe for one second that Colorado would put up with that?

[Randal]

Do you believe for one second that Colorado would put up with that?

Of course they would. The dissent was quite clear that would be fine.

[Davy C]

I don't care what the dissent says - this is about standing. Would *Colorado* have put up with that, before this case? They'd say "Sure, go ahead, your websites for gay weddings can use a horrible template while your websites for straight couples are beautifully customized"?

I really, really doubt it.

[Randal]

Well, we'll never know, since the Supreme Court went ahead with an advisory decision.

[Ben 6]

The state stipulated standing existed.

[Randal]

Which is meaningless in the standing analysis.

[Ben 6]

Not any more - SCOTUS accepted jurisdiction, so whatever rule you think means there is no standing, SCOTUS does not agree.

[Randal]

Well, it's not that.

[Ben 6]

You or I may opine, but SCOTUS rules.

Whether they accepted jurisdiction for the reasons I think, or for other reasons, nonetheless they did so, and they have ruled.

Humbly I suggest that the parsimonious explanation is they accepted jurisdiction because jurisdiction was stipulated.

That causes the fewest problems, but does contradict our host's assertion that they have a duty to reject jurisdiction based on a sua sponte investigation unprompted by either party, which is surely strained at best.

[Randal]

Allowing the parties to stipulate jurisdiction causes the most problems. The whole point of standing and jurisdiction is to not allow the parties to claim they have it when they don't.

You might think that it's always in the defendant's interest to argue against standing but it's not. The court can't just accept the defendant's acquiescence... and that's not what happened here.

[David Post]

Ben6:Humbly I suggest that the parsimonious explanation is they accepted jurisdiction because jurisdiction was stipulated.

That causes the fewest problems, but does contradict our host’s assertion that they have a duty to reject jurisdiction based on a sua sponte investigation unprompted by either party, which is surely strained at best.
It's not my "assertion"; it is black-letter constitutional law that the Court itself has cited on numerous occasions. See notguilty's post earlier in this thread:
Parties cannot stipulate subject matter jurisdiction in a federal court. FW/PBS v. City of Dallas, 493 U.S. 215, 231 (1990).

The federal courts are under an independent obligation to examine their own jurisdiction, and standing “is perhaps the most important of the jurisdictional doctrines.” Allen v. Wright, 468 U.S. 737, 750 (1984).

“Every federal appellate court has a special obligation to ‘satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review,’ even though the parties are prepared to concede it. Mitchell v. Maurer, 293 U.S. 237, 244 (1934). See Juidice v. Vail, 430 U.S. 327, 331-332 (1977) (standing).”

“And if the record discloses that the lower court was without jurisdiction, this court will notice the defect, although the parties make no contention concerning it.” Bender v. Williamsport Area School Dist., 475 U.S. 534, 541 (1986).

[David Post]

Ben6:Humbly I suggest that the parsimonious explanation is they accepted jurisdiction because jurisdiction was stipulated.
But that is simply nonsense, and the Justices know that it is nonsense (which is why they didn't say anything like it). The parties cannot stipulate to jurisdiction in federal court - period.

[Ben 6]

> The whole point of standing and jurisdiction is to not allow the parties to claim they have it when they don’t ... You might think that it’s always in the defendant’s interest to argue against standing ...

I don't think that's right. There's a body of law that says you can waive objections to, if not always standing, then anyway jurisdiction.

If both parties *stipulate* both standing and jurisdiction, what's the case law that says a court *must* nonetheless undertake a sua sponte investigation into the facts to establish standing? When both parties have stipulated?

It's got to be discretionary at most, or the system would grind to a halt. Every appeal would have to start with a ground-up standing analysis!

The only sane rule is to allow (not require) that to be skipped if both parties stipulate.

[not guilty]

"If both parties *stipulate* both standing and jurisdiction, what’s the case law that says a court *must* nonetheless undertake a sua sponte investigation into the facts to establish standing? When both parties have stipulated?"

See my quotation of authorities cited in FW/PBS v. City of Dallas, 493 U.S. 215, 231 (1990), upthread.

[Noscitur a sociis]

I don’t think that’s right. There’s a body of law that says you can waive objections to, if not always standing, then anyway jurisdiction.

Such as?

[not guilty]

Ben 6, where and when did you get your legal training, if any? Every 1L learns early during the first semester that parties cannot stipulate to subject matter jurisdiction in any federal court.

[not guilty]

Still waiting, Ben 6. If you attended law school, an accrediting agency somewhere may want to know.

[Ben 6]

Not guilty, since we are both anons it's best to think of me as an internet rando, which, to me, is what you are.

Dallas doesn't help you. It and the cited cases are primarily diversity cases, and diversity is not at issue here, so this case is easily distinguishable on that basis alone. Even if that's wrong, all it says is federal courts have an independent responsibility to ensure the elements e.g. harm are properly alleged. That was already done in this case, and not in dispute.

In particular there is no suggestion that every level of federal appeal has to repeat that process sua sponte. Because that would be ridiculous.

Here SCOTUS (rightly) accepted wholesale the standing analysis of the 10th circuit, to no objection, and if "to no objection" is not the same as "stipulated" then you can call me Mary, and don't split hairs between stipulated and waived because a) how does that help the theory, and b) who does that.

As for what 1Ls learn, five years ago they learned abortion was a constitutional right. What profs teach and students learn is one thing, what SCOTUS rules is another, and it is the latter that counts.

SCOTUS accepted jurisdiction. You might have a theory as to why that was wrong, but if you do your theory is wrong because SCOTUS is the final arbiter as to whether they have jurisdiction, and they accepted jurisdiction.
If you MUST have a theory, you need to make a new theory for the new facts.

[not guilty]

Just so you will know, I am a 1987 graduate of the University of Tennessee College of Law. I practiced for 28 years prior to retiring, mostly criminal defense work, and I litigated a significant bit of First Amendment issues, primarily on behalf of adult entertainment clients. Your refusal to answer my questions tells us what we need to know about your lack of training, and your lack of analytical skills is prominently on display here.

SCOTUS in 303 Creative did not alter Article III standing jurisprudence one iota, although it did deliver a punt that Ray Guy would envy.

FW/PBS v. City of Dallas, 493 U.S. 215 (1990), involved a First Amendment challenge to several provisions of a municipal ordinance regulating adult oriented businesses. It was not, as you falsely assert, a diversity jurisdiction case. Neither the District Court nor the Court of Appeals determined whether petitioners had standing to challenge any particular provision of the ordinance. Justice O'Connor wrote for the Supreme Court that "Although neither party raises the issue here, we are required to address the issue even if the courts below have not passed on it, . . . and even if the parties fail to raise the issue before us. The federal courts are under an independent obligation to examine their own jurisdiction, and standing is perhaps the most important of the jurisdictional doctrines." Id., at 230-31. The Court there analyzed, separately as to each issue, whether the record showed that any plaintiff had standing to litigate.

To establish Article III standing, a plaintiff must show (1) an "injury in fact," (2) a sufficient "causal connection between the injury and the conduct complained of," and (3) a "likelihood" that the injury "will be redressed by a favorable decision." Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157-58 (2014); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). The party invoking federal jurisdiction bears the burden of establishing these elements. Lujan, at 561, citing FW/PBS.

Since they are not mere pleading requirements, but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation. Lujan, at 561. This applies to every stage of the litigation. Justice Scalia wrote for the Lujan Court:

At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss, we presume that general allegations embrace those specific facts that are necessary to support the claim. . . . In response to a summary judgment motion, however, the plaintiff can no longer rest on such mere allegations, but must set forth by affidavit or other evidence specific facts . . . which for purposes of the summary judgment motion will be taken to be true. And at the final stage, those facts (if controverted) must be supported adequately by the evidence adduced at trial.

504 U.S. at 561 [citations and internal quotation marks omitted.]

[Rev. Arthur L. Kirkland]

I practiced for 28 years prior to retiring,

You might enjoy using your legal skills to improve our society by volunteering for the Democratic Party, good candidates, strong public interest organizations (ACLU, for example), and the like.

Election day work is especially good. It comes and goes quickly, consequent to the first rule of election law (finality). It is enjoyable work, whether riding the circuit (visiting polling places, either randomly or in response to problems), appearing in election court, or manning a boiler room (handling calls, usually from throughout a state, concerning election issues). Unless an asshole of Trump-MAGA-QAnon magnitude is involved, the work is done when election day operations conclude.

A lawyer can do a lot of good — and have some fun — on election day. Delivering a court order to poorly performing election workers, or to antisocial jerks afflicting a polling place, is more fun than most legal work.

[not guilty]

I have been an active Democrat for all my adult life, including briefly serving as a county chairman in an urban county. I find the law to be much more interesting and enjoyable than politics, though.

[TwelveInchPianist]

"I practiced for 28 years prior to retiring..."

Since you're so eager to discuss qualifications, why did you retire?

Talk about chutzpah!

[Nelson]

Most people retire becuase they would rather be doing something else than working and have saved up enough money to be able to. Working until you die isn't fun. Retirement is.

[Ben 6]

I apologise. I have made a fool of myself.

I am grateful to you for showing me that and I will not say anything so stupid again.

[Nelson]

I'm going to go out on a limb and guess that was sarcasm. Yet your defensiveness and acknowledgement of being wrong still comes through.

[TwelveInchPianist]

"Every 1L learns early during the first semester that parties cannot stipulate to subject matter jurisdiction in any federal court."

I don't know what 1L's learn, but there's a surprising amount of lawyers, both on line and irl, who don't understand how Art III standing and jurisdiction operate as threshold questions in federal court. And they can't stand it when non-lawyers explain it to them

[TwelveInchPianist]

"Well, we’ll never know, since the Supreme Court went ahead with an advisory decision."

Well, federal courts issue advisory decisions all the time. Or at least, federal courts issue decisions where I don't agree with the standing analysis all the time.

[David Nieporent]

Of course they would. The dissent was quite clear that would be fine.

The dissent was lying or stupid, or to be charitable lacked understanding of how antidiscrimination law works. It's not enough to do business with a protected class; one must provide equivalent quality of products/service. You can't sell a website that celebrates their marriages to straight people and a website that denigrates their marriages to gay people. That is still unlawful discrimination.

[Randal]

I'm not saying there are no problems with the dissent's position. It's certainly putting forward a difficult line. But it's a coherent line, and a better line than the majority drew, which was no line.

The dissent said look, it's pretty obvious when someone's using speech as a pretext to discriminate. Like a photographer who won't take pictures of Black people. This lady says she wants to do websites, but no gay websites. That's just discrimination.

A lot of it comes down to how the service is positioned. To me this is the weak part -- it requires the service provider to have thought through all their boundaries in advance, which might not be practical. But this case didn't have that problem, it was a hypothetical. The service provider wanted to position her service as "No Gays." Well, why, if not just to discriminate?

Why not position it as "Traditional Christian Websites?" That's still not "No Jewish Websites."

Maybe you think that's a dumb line because it's easy to game. And you might be right. But I still think it leads to a more civil society -- not to mention preserving a role for public accomodation and nondiscrimination principles -- for people to have to frame their services in terms of what they're comfortable with rather than in terms of who they want to discriminate against.

[Brett Bellmore]

"The service provider wanted to position her service as “No Gays.”"

No. The service provider wanted to position her service as "Not What Gays Happen To Want". Which is not at all the same thing; If Bob and Sue get married, and their 'gay' friend George as a wedding present commissions a web page for them?

She'd do it in a heartbeat.

If Bob and George get married, and their straight friend Sue as a wedding present commissions a web page for them?

No sale.

It's conditioned on the expressive content of the webpage, not the identity of the customer.

[Randal]

The dissent is correct, imo, that "Not What Gays Want" is on the same side of the line as "No Gays."

Brett, I'm curious why you think she didn't want to just go with "Traditional Christian Wedding Websites," which no one on the court (and, I suspect, not many gay people) would've had a problem with?

[David Nieporent]

You keep saying the word "discriminate" as if it's a magic word. (To be fair, that's essentially how the dissent treats the case as well.) The issue is the basis for the discrimination. If the basis for the discrimination is the identity of the customer, then it's unlawful. But if the basis is the message, then it's lawful because the 1A trumps a state law.

I don't even know what you mean by "pretext." She's not saying "No gay marriage websites" so that she can turn away a gay person who wants to advertise his CPA services. She's saying "No gay marriage websites" so she doesn't have to make gay marriage websites.

[Randal]

So you think she's happy to make Satanist Wedding Websites?

[David Nieporent]

Probably not. But since that isn't a thing, I'm not sure she feels the need to specifically mention it among the things she won't do.

[Randal]

What the fuck are you taking about? It's totally a thing!

https://www.misfitwedding.com/blog/ralis-and-katies-satanic-wedding/

Probably more of a thing than gay weddings. There aren't that many gay people out there.

The point being, she decided to go out of her way to call out a protected group as being excluded from her service. I'll ask you the same as Brett: why not just do Traditional Christian Weddings?

Going out of your way to call out a group as being excluded from the service is what the dissent (rightly) found to be pretextual.

(Pretty obvious IMO given that the whole case was pretextual as we've been discussing.)

[David Nieporent]

She did not call out a protected group as being excluded from her service.

[Randal]

You’ve given no explanation for why she didn’t just say she provided websites for “Traditional Christian Weddings,” or why she failed to mention other sorts of weddings she wouldn’t provide, like Satanist ones (also a protected group in Colorado).

My explanation is that it’s a pretext to discriminate against gays as much as she can get away with. Seems pretty obvious actually. The dissent agrees.

Perhaps you think pretextual discrimination is ok in this context because it’s too hard to police. That would at least be a position. But your head-in-the-sand approach isn’t convincing.

[Randal]

Oh and to be clear, the dissent's idea is that once they frame their service in such a way, they don't have to provide services that fall outside their comfort zone. To anyone.

[Sarcastr0]

This is in keeping with pre-enforcement challenges as I learned them in my 1A class in law school.

There was no element of requiring a credible threat of future state action. The chilling effect rationale isn't about just threat, but about government signaling disaproval.

I also think it's a good idea prudentially and practically given how tricky 1A cases could be to bring otherwise.

[David Nieporent]

There was no element of requiring a credible threat of future state action.

There is. The most recent explication of it is in SBA List v. Driehaus, decided by SCOTUS in 2014.

[Randal]

Don't forget this passage from Whole Women's Health:

As our cases explain, the "chilling effect" associated with a potentially unconstitutional law being "'on the books'" is insufficient to "justify federal intervention" in a pre-enforcement suit. Instead, this Court has always required proof of a more concrete injury and compliance with traditional rules of equitable practice. The Court has consistently applied these requirements whether the challenged law in question is said to chill the free exercise of religion, the freedom of speech, the right to bear arms, or any other right.

[Sarcastr0]

That was after I went to law school, though when I click through the precedent seems to go back pretty far.

I stand corrected.

[not guilty]

Don't overlook NAACP v. Button, 371 U.S. 415, 433 (1963). "The threat of sanctions may deter . . . exercise [of First Amendment rights] almost as potently as the actual application of sanctions." See also, Steffel v. Thompson, 415 U.S. 452 (1974), regarding a genuine threat of enforcement of a disputed state criminal statute, whether an attack is made on the constitutionality of the statute on its face or as applied.

[Ben 6]

> But in any event, it is black-letter law that such a move does not relieve the Court of its constitutional duty to satisfy itself that the plaintiff is presenting a justiciable case or controversy to be resolved.

Not any more. SCOTUS accepted the case.

It is now black-letter law that if both parties stipulate that a controversy exists, then for the purposes of constitutional law, it does.

[Ben 6]

The point here is that the state stipulated jurisdiction - they didn't have to do that.

We might soften it by saying SCOTUS has optional jurisdiction, which they may or may not choose to exercise, but we can't any longer say they have no jurisdiction because SCOTUS decides what SCOTUS' jurisdiction is, and they have by exercising it said that they have it.

[David Nieporent]

The state did not stipulate jurisdiction, and again: you. can't. do. that.

[Brett Bellmore]

You. Can. Do. That. Trivially so, because they DID. Whatever you have done, you obviously "can" do.

The. Court. Doesn't. Have. To. Care. That. You. Did. These courts did anyway.

How is this a complicated distinction?

[Randal]

I think the distinction DN is making is that Colorado stipulated to a bunch of facts from which standing could be deduced. They didn't literally stipulate to standing or jurisdiction.

[Ben 6]

If I were smarter I should have liked to have have made that distinction rather than saying that standing was stipulated (which ofc. you can't do, yes I am that dumb).

[Jason Cavanaugh]

Ooo fun game:

How many different lawyers have to tell Brett he's wrong about the law before he stops arguing otherwise?

[Randal]

The oddity for me here is…

In a traditional 1A pre-enforcement challenge, the injury is a 1A injury. The person wants to say something, but they choose not to say it out of fear of enforcement. There’s a 1A injury there — speech was suppressed — even though there was no enforcement. Volia, pre-enforcement standing.

Here, though, her injury isn’t truly a 1A injury. People don’t have a 1A right to offer custom wedding websites to the public as a commercial enterprise. For example, a state could regulate the event-planning industry such that event websites, including wedding websites, must be operated through the event venue.

Shouldn’t she have to wait until she suffers a 1A injury in order to bring a 1A claim, even pre-enforcement?

[TwelveInchPianist]

People don’t have a 1A right to offer custom wedding websites to the public as a commercial enterprise.

On what planet?

For example, a state could regulate the event-planning industry such that event websites, including wedding websites, must be operated through the event venue.

[Citation Needed]

[Nelson]

"People don’t have a 1A right to offer custom wedding websites to the public as a commercial enterprise.

On what planet?"

On this planet. I'm certain there's no constitutional right to run a business in violation of the law. Laws that are equally applied aren't religiously discriminatory, as opined by the notorious liberal Justice Antonin Scalia.

This is one of the core pillars of the two-tiered justice system that religious folks are trying to eatablish where Christians get special treatment because their bigotry is also a sincerely held religious belief.

Jim Crow was proof positive that public accomodation laws are necessary to protect the rights of disfavored groups. The equal application of laws should always prevail over the personal desire of any citizen to run a business that would ignore some laws they don't like.

[TwelveInchPianist]

On this planet. I’m certain there’s no constitutional right to run a business in violation of the law.

You’re certain? That settles it, then. But your certainly wrong. You think there’s no constitutional right to run a newspaper in violation of a law banning newspapers, for example?

This is one of the core pillars of the two-tiered justice system that religious folks are trying to eatablish where Christians get special treatment because their bigotry is also a sincerely held religious belief.

The case was decided on free speech grounds, not religious freedom grounds.

[Randal]

You think there’s no constitutional right to run a newspaper in violation of a law banning newspapers, for example?

Well, yeah. There are laws regulating newspapers. Ownership limits. Environmental regulations. Labor laws. Who knows what else.

You don't get to do a pre-enforcement challenge of some environmental regulation on the theory that it would interfere with your First Amendment right to start up a newspaper business.

(You could also argue that newspapers are a more special case due to being "Press" but I don't think we even need to go there.)

[TwelveInchPianist]

"You don’t get to do a pre-enforcement challenge of some environmental regulation on the theory that it would interfere with your First Amendment right to start up a newspaper business."
Again, [Citation Needed]

And wedding websites are also "Press", but of course this was a free speech case.

To summarize: You absolutely have a first amendment right to offer custom wedding websites to the public as a commercial business. 303 Creative had that right violated because she was chilled in her expression by the fact that she would almost certainly be punished if she exercised that right with respect to straight weddings without doing so for gay weddings. So she had standing.

[Randal]

I'm pretty sure you're wrong. (I've noticed you don't have any citations either.)

For example, you have a First Amendment right to burn a flag, but not to set up a flag-burning business.

You have a First Amendment right to picket in front of the White House, but not to set up a picketing business in front of the White House.

Are you relying on Freedom of the Press for your assertion?

[TwelveInchPianist]

Why wouldn’t you have a first amendment right to set up a flag burning business?

[Randal]

Because you don't have a First Amendment right to set up businesses generally. Just because you have a right to do something doesn't mean you have a right to make a business out of it.

There may be exceptions to that in the publishing / press domain where the thing is the business, which arguably includes website design... are you leaning on that distinction, and if so, do you think the court was leaning on it?

[TwelveInchPianist]

That's like arguing that you don't have the right to burn a flag because you don't have the right to burn things generally.

[Ben 6]

As the court fool in the thread, something something viewpoint discrimination?

You (maybe??) don't have a right to set up a business generally but to the extent that you do, (I suppose) it can't be circumscribed based on promoting (or here refusing to promote) a viewpoint.

I'm out of my depth, so that's just a remark - "viewpoint discrimination seems relevant".

[Randal]

That’s like arguing that you don’t have the right to burn a flag because you don’t have the right to burn things generally.

You don’t have the right to burn a flag because you have the right to burn things generally. You have the right to burn a flag because it’s uniquely expressive.

I can’t imagine your argument is that you have a First Amendment right to set up businesses generally. Do you think people have a First Amendment right to set up uniquely expressive businesses? Like, my restaurant serves poetry accompanying each dish, so therefore I don’t need to follow the health regulations? I think not, but maybe you have some reference material on the subject you could link to?

I think Ben has the better take, but keep in mind this is all in the context of standing. If I want to open a risqué T-Shirt business but I’m afraid of running afoul of what I think is an overly-restrictive public decency law, do I have standing for a pre-enforcement challenge?

[TwelveInchPianist]

"If I want to open a risqué T-Shirt business but I’m afraid of running afoul of what I think is an overly-restrictive public decency law, do I have standing for a pre-enforcement challenge?"

Sigh. Yes, if you can show that the law will likely be enforced against you if you open your business.

[Randal]

I know you think that. But I want to know why. What's your theory? I'm pretty sure you don't really have one. That's ok.

[Brett Bellmore]

" People don’t have a 1A right to offer custom wedding websites to the public as a commercial enterprise. "

See, this is a growing problem. "People don't have a right to do X for a living, so the government can impose conditions on doing X for a living that impinge on constitutional rights. Don't like that? Do something else!"

But the government doesn't stop at X! They do this for A-Z! And people have to do SOMETHING for a living! And the domain of things you can do for a living without having to give up your rights keeps shrinking!

This is a problem created by the judiciary's hostility to economic rights, which damned well ARE traditional 9th amendment rights. It results in the government being able to leverage its power to violate economic rights to violate other rights, by threatening your ability to earn a living if you won't knuckle under!

[Nelson]

"See, this is a growing problem. “People don’t have a right to do X for a living"

See, that's the dishonest narrative that cultural conservatives have been pushing for a while now. It's wrong (in the "this is a bad thing" way).

When you are making a decision about anything, the first thing to ask yourself is, "What are the rules everyone has to follow? Can I follow them?". If the answer is yes, go on to the next step. If the answer is no, don't do that thing. There isn't a third option where Christians get to say, "I can ignore laws and be treated special because I'm a Christian.".

There is a concerted effort by Christians to create a special class for themselves where they get preferential treatment and selective compliance with laws. It can't be allowed to succeed. The rule of law means everyone is subject to the same laws. If your conscience says you can't follow the laws, find something else to do.

You have the right to religious freedom. You don't have the right to run a business. If your choice is between your religious beliefs and running a business, you can choose one or the other. Not both.

Remember that Antonin Scalia, a devout Catholic and fervent conservative, opined that generally applicable laws aren't religiously discriminatory. He was absolutely right.

[BadLib]

Suppose AnyTown USA has a law that no Black person can operate a business in town and, if they do so, they will be subjected to a $1M fine per day, or portion thereof, that a nonconforming business is operated.

John Black, a Black man, owns carwashes in all the surrounding towns for tens of miles around but not in AnyTown. The owner of a carwash in AnyTown is retiring and offers the business up for sale and Mr. Black is the highest bidder and assumes ownership. BUT he can't now open his new carwash for business the next day without violating the town's ban on Blacks operating businesses in town.

By the logic posited in this piece, the only way for Mr. Black to gain standing would be to (1) Open the carwash, and (2) Wait for AnyTown to cite the business for being operated by a Black person (which AnyTown may delay by months meaning Mr. Black is potentially racking up fines, if found guilty, of $30 million per month).

If the argument made in this piece is valid, that would be an absurd result to the vast majority of the public. It would also suggest that at least one of the injunctions against one of Trump's "travel bans" should not have been granted as it was granted before the effective date of the "ban" so, by this logic, no one had actually been denied entry under the ban yet.

[Randal]

In your hypothetical, the carwash exists.

What if it didn’t exist. What if actually, John didn’t own any carwashes. And it’s not that AnyTown doesn’t allow Black businessowners, it just doesn’t allow businesses to post poetry within view of the public.

Now, John wakes up one day and thinks to himself gee John, I sure would like to open a carwash in AnyTown and post poetry in public view! But they have an ordinance against that. Better lawyer-up and sue!

Now, maybe you still think he’s got standing on those facts. But at some point it becomes too speculative. I don’t think anyone is arguing anything other than where that point is (except Michael P and Ben 6).

[Michael P]

Yes, if you assume that the hypothetical web site designer doesn't actually design web sites, there is a problem with standing. Durrr.

[Nelson]

A question for the lawyers. Was it ever established that the speech was hers? That is to say that by merely hosting/building a wedding site for clients, did the content they provided stop being their speech/expression and become hers?

I find it disturbing that someone who only does background work for someone else's expression can claim First Amendment protections. This strikes me as a backdoor way to Jim Crow gay people.

Is there precedent for claiming someone else's speech is yours just because you create the framework that exposes their (not your) speech to the world?

[David Nieporent]

A question for the lawyers. Was it ever established that the speech was hers? That is to say that by merely hosting/building a wedding site for clients, did the content they provided stop being their speech/expression and become hers?

You misunderstand the facts. The facts (as stipulated) are that she does not merely "host" websites, or plug content provided by the couple into a template; rather, she custom designs websites after discussing with the couple ideas about what they're looking for.

But you also misunderstand the compelled speech doctrine, which does not turn on who created the speech in the first place. Imagine that the government puts "Live Free or Die" on its license plates, and requires drivers to use those license plates. It is 100% obvious that this is the government's speech rather than an individual driver's; it's a standardized message created and printed by the government, after all. But drivers still can't be compelled to convey that message.

[Josh R]

Apparently, Dale Carpenter misunderstands the compelled speech doctrine as well:

a website designer who offers a preset menu of plug-and-play options for customers to create their own wedding websites is offering a product customized mainly by the buyer, not the designer. It's the customer's speech, not the vendor's.

[Nelson]

Since the website has never been set up, can they claim they would, theoretically, offer only customized sites? Of course since there isn't a website or any customers, I suppose they can claim anything they need to in order to win the case, right? If I'm reading things right this is an entirely hypotheical case with made-up "clients".

[David Post]

If I’m reading things right this is an entirely hypotheical case with made-up “clients”.
Alas, you are correct.

[Josh R]

Although I would heave preferred no pre-enforcement challenge to better understand the contours of the law, this decision is limited to the stipulated facts. As such, I think it only applies to websites that are "customized and tailored through close collaboration with individual couples." I am OK with such a limitation (leaving unsettled what happens with templates), and thus am not bothered by the standing determination. In particular, it is important for the Court to have rejected the state's (and dissent's) argument that this is a regulation of conduct that only incidentally burdens speech as applied to "customized and tailored” websites.

[Nelson]

As a second question, how broadly could this "hypothetical" doctrine extend? Could a person bring a red flag case against someone with mental illness to prevent them from ever purchasing a gun if they have an illness, like paranoid schizophrenia, that has a high rate of resulting in violence?

[TwelveInchPianist]

But what is surprising is that the three dissenting Justices (Sotomayor, Kagan, and Jackson) made absolutely nothing of this. Not a single word about standing** in Justice Sotomayor's long (38 pages!) and passionate dissenting opinion.

I am at a loss to explain that.

A possible explanation is that the dissenting Justices, like the other justices and the 10th circuit, thought that 303 Creative had standing.

[David Nieporent]

Yeah, you really have to wonder why people are refusing to accept the obvious here.

[Randal]

It's not surprising to me that judges and justices generally like to find themselves to have jurisdiction.

[Alpheus W Drinkwater]

True, but they are also perfectly capable of using lack of standing to dispose of the case, when they aren't so hell bent on a certain outcome. Perhaps the dissent felt it was more important to address what they saw as the problem with the majority's reasoning on the merits, rather than make a standing argument.

[Randal]

This is the obvious right answer to me. What good does a losing standing argument do anyone? Nobody cares... even if it's a good argument.

[David Nieporent]

If you think your position will prevail, sure. If you think that you're going to lose 6-3 on the merits, why would you not want to try to pick off two fellow justices with a procedural argument?

[not guilty]

“Yeah, you really have to wonder why people are refusing to accept the obvious here.”

People here are accepting the obvious. The SCOTUS decision is fait accompli. Some of us, however, question whether the Court was adhering to its precedents.

Justice Robert Jackson said it best, dissenting in Brown v. Allen, 344 U.S. 443, 540 (1953): “We are not final because we are infallible, but we are infallible only because we are final.”

Self-styled Christians claiming that their exercise of religion has been burdened have become a favored class of litigant since the appointment of Justices Gorsuch, Kavanaugh and Bear it. The Supreme Court is unfortunately weaponizing religion in the culture war. The Tenth Circuit here reached a decision on the merits that a majority of SCOTUS could not abide, so the Court was motivated to reach the merits whether the record established standing or not.

[The Margrave of Azilia]

Why did the 10th circuit reach the merits when it was *so obvious* there was no standing?

[David Nieporent]

People here are accepting the obvious. The SCOTUS decision is fait accompli. Some of us, however, question whether the Court was adhering to its precedents.

The 10th circuit did not agree with her on the merits, but thought those precedents compelled them to find standing. Sotomayor, Kagan, and Jackson did not agree with her on the merits, but seemingly didn't think the Court was failing to adhere to its precedents.

[David Post]

The 10th circuit did not agree with her on the merits, but thought those precedents compelled them to find standing..
Compelled them to find standing?! Come on - you don't really believe that, do you? Maybe - maybe - you can find precedents that into which you can shoehorn Ms. Smith's behavior so as to find that there has been a "concrete injury" sufficient to grant her standing. But "compelled to find standing"? No case - none - compelled them to find standing.
The reason they found standing is the same reason SCOTUS found standing: They have something they want to say on the merits, and they are able to (barely) scratch together some arguments from the standing precedents out there, so they went ahead.

[F.D. Wolf]

I have no idea what Prof. Post is on about. The Tenth Circuit found standing. The Supreme Court found standing. The three dissenting justices didn't seem to dispute standing, as they didn't even address the issue. The lack of standing was so apparently so obvious, that three Circuit Court judges and nine Supreme Court justices failed to notice it.

Imagine the government passes a law forbidding new swimming pools at private residences. I wish to challenge this law. In my lawsuit, I say, "I wish to build a pool in my backyard." Is that not sufficient for standing? I would suggest that it is. What more would Prof. Post require? Whether or not I actually build one later (assuming I win my suit) isn't particularly relevant.

[ReaderY]

This case is more like “I’m thinking about maybe buying a house some day. Maybe in this town.”

[David Nieporent]

No, it isn't. That would indeed not provide standing under existing precedent. This is, "I intend to buy a house in this town as long as you promise me I won't be arrested for doing so. Look: I've pulled all the real estate listings and I've gotten preapproved for a mortgage."

[Bored Lawyer]

It's even more than that. It's like, I already own a house, my kids want a pool, I got a few estimates and am ready to proceed, and now want to challenge the no-pool ordinance.

[David Post]

David Nieporent: What, using your analogy, did Smith do that was the equivalent to "gettingm pre-approved for a mortgage"?

[David Post]

F.D.Wolf:Imagine the government passes a law forbidding new swimming pools at private residences. I wish to challenge this law. In my lawsuit, I say, “I wish to build a pool in my backyard.” Is that not sufficient for standing? I would suggest that it is. What more would Prof. Post require? Whether or not I actually build one later (assuming I win my suit) isn’t particularly relevant.
I would require what the Constitution requires (at least for cases in federal court): an actual case or controversy, not just your "wish to challenge the law" based on your "wish to build a pool." In your universe, every single regulation ever passed would be subject to challenge by dozens or thousands of people, each of whom "wishes" to act contrary to the regulation and thinks that the prohibition unconstitutionally impinges on their rights.
Let me state it differently: The act of passing a law that prohibits pool-building doesn't infringe anyone's constitutional rights; actually prohibiting such action, though, may do so.
There are LOTS of scenarios where you can get review of this law. How about this: perhaps your town requires (or allows) you to submit all building plans to the Town Manager for a 30-day public posting (many jurisdictions have such a requirement). So, hire a contractor and draw up plans for a pool; submit your plans, and wait for the letter from the Town Zoning Board that says: you can't do that. Take that letter to federal court, if you'd like; you now have a "case."

[John F. Carr]

You have a right to an official advance decision as to the legality of building a 32 foot tall two family residence in an R-2 zone. You do not have a right to binding statements from all the relevant authorities about whether it is legal to sell a shirt saying "there are two genders" or "President Kennedy needs a bullet in the head."

[ReaderY]

A potential basis for standing is the overbreadth doctrine, which has permitted plaintiffs to sue when the law does not actually apply to their conduct.

However, this same term the Supreme Court appears to have signalled a possible narrowing of the doctrine in US v. Hansen.

I agree that the Supreme Court should not have accepted the parties’ stipulations but was required to verify sua sponte that standing existed, and under conventional standing doctrine, there was no standing in this case.

I would also note that the Court’s eagerness to decide this case and willingness to set aside standing considerations reflects an activist streak notable in the Court’s conservative wing. Federal courts are not knights errant to right abstract wrongs.

[Mark]

When the Court decided Moore v. Harper I wondered about how Sotomayor, Kagan, and Jackson would deal with the standing issue in 303 Creative. Hard to square either case with standing as a core principle, even with due consideration for the credible threat issue in 303 Creative.

[Alpheus W Drinkwater]

Was the issue in Moore standing, or was it mootness? The NC legislature was challenging the constitutionality of a decision of the NC Supreme Court that tossed out their redistricting plan. Is that not good enough for standing in federal court?

[Bored Lawyer]

The issue in the 303 Creative case is actually ripeness, not standing. Not that it matters much, as they are all derivatives of the case or controversy requirement.

[Bored Lawyer]

I do not have time right now to write a point-by-point refutation. Suffice it to say, the position taken here by Prof. Post is not consistent with SCOTUS precedent. I suggest review of MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007), https://supreme.justia.com/cases/federal/us/549/118/, the leading case on what constitutes a case or controversy.

One point here, though, Point 2, above, "Having done so, Smith would have had to receive a request from a same-sex couple for wedding-related web design/hosting services;"

This is the position taken by the Colorado authorities -- until someone complains, they are powerless to do anything to a business. I am extremely dubious about this. So if a restaurant in Colorado posts a sign in its front window, "Blacks, Jews and Gays not served here," they are powerless to do anything until one of those groups tries to go into the restaurant and is turned away?

I very much doubt it. No one disputed this point below, but I am curious if any Colorado lawyers can shed light on the question.

[Kleppe]

"Suffice it to say, the position taken here by Prof. Post is not consistent with SCOTUS precedent."

Post is suffering from a terminal case of Trump derangement syndrome. His think meat was fried years ago.

[David Post]

Bored Lawyer: Suffice it to say, the position taken here by Prof. Post is not consistent with SCOTUS precedent.
Justice Roberts, for the majority in Whole Women's Health:
"This Court has never recognized an unqualified right to pre-enforcement review of constitutional claims in federal court. In fact, general federal question jurisdiction did not even exist for much of this Nation's history. ... As our cases explain, the "chilling effect" associated with a potentially unconstitutional law being "'on the books'" is insufficient to "justify federal intervention" in a pre-enforcement suit. Instead, this Court has always required proof of a more concrete injury and compliance with traditional rules of equitable practice. The Court has consistently applied these requirements whether the challenged law in question is said to chill the free exercise of religion, the freedom of speech, the right to bear arms, or any other right."
So you think my position is inconsistent with precedent? What was Ms. Smith's "concrete injury" other than she was "worried" that IF she actually set up a website Colorado would move against her. '
If you think that's enough to set up a constitutional case or controversy, I disagree.

[Kleppe]

"I think I can pretty much guarantee that no same-sex couple in its right mind would request her services"

Familiarize yourself with how homosexuals went out of their way to repeatedly target Jack Phillips before making such an embarrassing comment.

Also, stay mad, dude.

[nicmart]

“If all the lawyers were hanged tomorrow, and their bones were sold to a mah jong factory, we’d all be freer and safer, and our taxes would be reduced by almost a half.”
— H. L. Mencken

[Religion and Politics, my life]

Even by your own reasoning you are wrong.
Whatever was hypothetical was due to her following the law that forbade inquiring into the identiry of the requestor

"“Lorie gets requests all the time, even now,” Scruggs said.

Smith and ADF were prevented from running a background check on Stewart to verify the authenticity of his request because it could have put them in conflict with the existing law, he added.

“If she had declined a request, or sent out an email saying ‘hey, I don’t create websites for same-sex weddings,’ she would have violated the law,” he said. “It puts her at extreme risk to go and interrogate somebody for these requests. The whole reason she filed the lawsuit is to get clarity.”"

[OtisAH]

My theory is similar to your friend’s but different. Mine is that the court tosses out handfuls of (not insignificant) things to chew on that “favor The Left” (and all other Americans) such as affordable health insurance and not allowing state legislatures to pick their preferred winning candidates. And then always follows up with an all-you-can-eat buffet for the slavering Right, exclusively, with decisions like Dobbs and permitting discrimination against lgbtq people. Like I said, similar. But mine doesn’t pretend these are equal trade-offs.