The Volokh Conspiracy

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More on Standing in the 303 Creative Case

A response to my critique of the Court's new standing jurisprudence.


"This Court has never recognized an unqualified right to pre-enforcement review of constitutional claims in federal court. … 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."

Whole Women's Health v. Jackson (2021) (majority opinion)

No one contends that pre-enforcement review should be available whenever a state law chills the exercise of a constitutional right. Rather, as this Court explained in Young, pre-enforcement review is necessary "when the penalties for disobedience are . . . so enormous" as to have the same effect "as if the law in terms prohibited the [litigant] from seeking judicial construction of laws which deeply affect its rights." 209 U. S., at 147.

Whole Women's Health v. Jackson (2021) (Sotomayor, J., concurring in part and dissenting in part) (joined by Justices Kagan and Breyer)

A couple of weeks ago I posted an article (here) criticizing the Court's decision in the website designer's case (303 Creative v. Elenis) granting Lorie Smith standing to pursue her claim in federal court. My argument, in essence, was that Lorie Smith suffered no "concrete injury" whatsoever, that the case was entirely hypothetical make-believe ("If she does this, and the State of Colorado does that, then her constitutional rights will have been violated"), and that the penalties for disobeying the statute were not "so enormous" as to justify pre-enforcement review of her hypothetical claim.

Incidentally, those of you who disagree with my contention that the Court is in the process of completely dismantling the standing requirement in federal courts should take a look at the colloquy between Justices Roberts and Kagan in the student loan case, Biden v. Nebraska, another late-Term case in which the Court allows a plaintiff (the State of Missouri) to proceed with its challenge despite having suffered no injury whatsoever.

The following is a response authored by John Ohlendorf and David Thompson of Cooper, Kirk in Washington DC, authors of an amicus brief in the 303 Creative case on behalf of Young Americas Foundation in support of Lorie Smith, taking issue with my post (and several others which had been similarly critical of the Court's standing analysis in the case).  I've reprinted it below in full (saving my response to their comments for a subsequent post).

After the Supreme Court issued its landmark decision in favor of free expression in 303 Creative LLC v. Elenis at the end of the last Term, a curious thing happened: several commentators, including Professor Post, published sharply worded criticisms of the decision not based on its interpretation of the First Amendment as barring the application of Colorado's Anti-Discrimination Act (CADA) to the Petitioners' speech, but over an issue that was not even contested before the Supreme Court at the merits stage—whether the Petitioners, 303 Creative and its owner Lorie Smith, had standing to sue. We confess to being puzzled by these criticisms—not only because we thought the Petitioners' standing was a slam-dunk (for reasons we laid out in an amicus brief we filed before the Court on behalf of the Young America Foundation), and not only because the other side apparently thought so too, given the Respondents' decision not to dispute standing before the Court (and the failure of Justice Sotomayor's to mention the issue in her dissent). The most puzzling part of these criticisms is their failure to meaningfully engage with what we thought was the most straightforward reason Ms. Smith and her company had standing to challenge Colorado's Act: the direct, imminent, and undisputed injury that the Act's "Communication Clause" inflicted on Ms. Smith's speech. In this post, after briefly discussing the background of the case, we explain why this injury unquestionably gave Ms. Smith standing to challenge the Act. We also argue the posts by Professor Post and others also fail even on their own terms to cast any doubt on the Petitioners' standing.

Lorie Smith and the Colorado Anti-Discrimination Act.

As explained in the Supreme Court's decision, Lorie Smith is a digital artist who "offers website and graphic design, marketing advice, and social media management services" through her business, 303 Creative. She recently "decided to expand her offerings to include services for couples seeking websites for their weddings," and while she "provides her website and graphic services to customers regardless of their race, creed, sex, or sexual orientation," she conscientiously objects to creating content that "contradict[s] her own views," including "her belief that marriage should be reserved to unions between one man and one woman."

Ms. Smith has not yet begun designing websites for weddings, but on September 21, 2016, she received a request from an individual who identified himself as "Stewart," who expressed interest in Ms. Smith doing design work for his upcoming wedding with "Mike." This request has been the center of some post-decision controversy—an article in The New Republic alleges that the request may have been contrived by someone other than Stewart, but Ms. Smith's attorneys insist they believed it to be genuine. Neither the Supreme Court or the Tenth Circuit relied on this request in assessing Ms. Smith's standing, but given the controversy, we will return to it below.

Whether or not an actual gay couple named Stewart and Mike wished to have Ms. Smith design content for their wedding, she certainly feared that once she expanded into the wedding business she would likely be approached to design for gay weddings. And she also feared that Colorado would interpret its broadly worded Anti-Discrimination Act as compelling her to do that design work, in spite of her religious objections. That law, CADA, contains two clauses that are particularly relevant. First, the "Accommodation Clause" makes it unlawful for any person to withhold the "services" of "a place of public accommodation" on the basis of "sexual orientation." In a series of decisions—including the State's well-known prosecutions of cake-baker Jack Phillips—Colorado has interpreted that language as forbidding creative professionals from declining to provide wedding-related services promoting same-sex weddings. Second, and importantly for our analysis, CADA's "Communication Clause" bans a person from even communicating the intent to provide services in a way that violates the Accommodation Clause.

Because of these two clauses, Ms. Smith feared she would face liability if she were to even publicly announce her plan to expand into the wedding design space (along with her religious objections to designing for same-sex weddings). Before announcing her plans, she accordingly brought a preenforcement challenge to CADA, seeking to clarify her First Amendment rights. The Supreme Court, of course, ultimately agreed with Ms. Smith that CADA could not be applied to compel her to design websites expressing views that "defy her conscience."

Ms. Smith's Standing Under the Communication Clause

The post-decision commentary surrounding Ms. Smith's standing has largely ignored CADA's Communication Clause. Professor Post does not mention it at all. But we think Ms. Smith's injury under this Clause secures her standing beyond any reasonable dispute.

Begin with the basics. It has long been black-letter law that an individual need not actually violate an unconstitutional law and then face prosecution to test the law's validity. Rather, most constitutional litigation today takes place on a preenforcement basis—with a plaintiff seeking declaratory and injunctive relief against a law that is reasonably chilling the exercise of her constitutional rights. Under the test set out in Susan B. Anthony List v. Driehaus, such a plaintiff has standing if she "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."

Ms. Smith's injury under the Communication Clause checks all of these boxes. She squarely alleged that she wished to post an announcement that she was expanding into the wedding design space and explaining her religious convictions about marriage. That course of conduct is obviously "affected with a constitutional interest"; indeed, the Tenth Circuit aptly referred to web design as "pure speech." Nor is there any doubt that Colorado interprets CADA as proscribing this speech, and that there is a credible risk that it would prosecute Ms. Smith for publishing her intent to create wedding websites for opposite-sex weddings only. In fact, the State admitted as much at oral argument before the district court (see here at App. 1-147–48). And just witness the State's aggressive prosecution of Jack Philips and his Masterpiece Cakeshop under the same statute. In short, Ms. Smith's injury under CADA's Communication Clause is as clear a case of preenforcement standing as we've seen.

Critically, Ms. Smith's standing to challenge the Communication Clause also necessarily gives her standing to challenge CADA's Accommodations Clause. The two clauses work in tandem: the Accommodations Clause bars an individual from denying service on certain bases, and the Communication Clause bars her from communicating the intent to deny service on those bases. The Communication Clause is thus nothing more than an enforcement mechanism implementing the Accommodations Clause: the substantive conduct that, under the Communication Clause, a person cannot say she will do—denying certain goods or services—is the very conduct that the Accommodation Clause forbids her to do. And the sole purpose of preventing a person from publishing their intent to deny service is to stop the denial itself. Indeed, prohibiting the communication of the intent to engage in such practices would be utterly pointless if the practices themselves were not prohibited by the Accommodation Clause.

An injury under the Communication Clause thus necessarily grants standing to challenge both Clauses. That is because, in the jargon of standing, the "injury-in-fact" of not being able to publish your intent to deny services is "fairly traceable" not only to the Communication Clause but also to the Accommodations Clause. The whole reason the Communication Clause bars Ms. Smith from saying that she would decline to create websites for same-sex weddings is that the Accommodation Clause bars her from declining to create such websites in the first place. If there were no bar on denying services, there would perforce be no bar on communicating the denial, and no injury; hence, that injury is traceable to the original cause.

The Supreme Court recently explained and applied precisely these principles in Federal Election Commission v. Ted Cruz for Senate. (Full disclosure: our Firm also represented Senator Cruz in that case.) In that case, Senator Cruz challenged a provision of the Bipartisan Campaign Reform Act ("BCRA") that capped, at $250,000, the amount of loans from a candidate to his own campaign committee that could be repaid by the committee with funds raised after the election. This statutory provision was implemented by a regulation promulgated by the FEC, which largely duplicated the statutory restriction but also added a few additional implementing details, including a rule requiring repayment within 20 days after the election of any portion of a candidate loan exceeding $250,000. While the FEC argued that Senator Cruz's injury ($10,000 in unpaid candidate loans arising out of the 2018 election) was purportedly caused only by the regulatory 20-day rule, the Court held that Senator Cruz also had standing to challenge BCRA itself, because his injury was fairly traceable to the statutory provision the regulation had been promulgated to implement. If there were no statutory limit on repaying loans, there would perforce be no regulation implementing that limit, and no injury—hence, Senator Cruz's injury was traceable to the original cause.

While the Supreme Court's decision in 303 Creative does not extensively discuss standing, we read it as clearly consistent with this line of reasoning. The Court explained that the "Communication Clause . . . prohibits any speech inconsistent with the Accommodation Clause," and that in fact "Colorado concedes that its authority to apply the Communication Clause to Ms. Smith stands or falls with its authority to apply the Accommodation Clause." Because Ms. Smith's injury under the former "stands or falls" with the constitutional validity of the latter, it is fairly traceable to both.

As noted above, Professor Post's criticisms of Ms. Smith's standing do not treat with the Communication Clause at all; but another widely circulated blog post, by attorney Adam Unikowsky, does address Ms. Smith's injury under the Clause in passing. His arguments are unpersuasive. Unikowsky claims Ms. Smith's injury under the Communication Clause illustrates "how this is a fake case" because most graphic designers "don't enter the wedding website design business while proudly and publicly proclaiming on their websites that they won't serve same-sex couples." That is inconsistent with the stipulated facts below, which state (here at pages 188a-189a) that Ms. Smith had a sincere religious desire to post her statement in an effort to be honest and transparent about what services she offered. And in any event,  Ms. Smith's motives for wishing to be upfront about her religious beliefs are irrelevant. For even if Ms. Smith only wished to publish her religious beliefs "in order to manufacture standing," as Unikowsky speculates, that would not affect her standing; as the Cruz case also explained, "we have made clear that an injury resulting from the application or threatened application of an unlawful enactment remains fairly traceable to such application, even if the injury could be described in some sense as willingly incurred." Indeed, as Cruz pointed out, a contrary rule would be inconsistent with several landmark civil rights cases that allowed plaintiffs to willingly subject themselves to racially discriminatory laws in order to challenge them.

Unikowsky seeks support for his "self-inflicted" argument in Clapper v. Amnesty International USA, where he says "the Court held that if a plaintiff lacks standing to challenge a government action on the ground that it's too speculative, it can't manufacture standing by taking precautions against that speculative action and then alleging standing based on those precautions." But Cruz discusses and expressly distinguishes Clapper from the situation here. In Clapper, Cruz explains, the plaintiffs' "problem . . . was that they could not show that they had been or were likely to be subjected to [the challenged surveillance] policy in any event." Here, there is no question that Colorado interprets the Communication Clause as proscribing the announcement Ms. Smith wishes to publish, or that there is a credible threat that they would enforce the Clause against her.

Finally, Unikowsky also endorses the district court's backwards reasoning that the intertwined nature of the Communication Clause and the Accommodation Clause, rather than giving Ms. Smith standing to challenge both, somehow strips away her ability to challenge even the Communication Clause. That is plainly incorrect under the settled legal principles discussed above.

In short, given the Communication Clause's clear bar on Ms. Smith's proposed (and constitutionally protected) speech, there can be no serious doubt that she had standing to challenge that the Supreme Court's decision arose out of a genuine "case or controversy."

Ms. Smith's Standing Directly Under the Accommodation Clause

While the argument above suffices to guarantee Ms. Smith's standing, we also think she clearly had standing directly under the Accommodation Clause, and that the arguments by Professor Post and Mr. Unikowky miss the mark. There is no real dispute that Ms. Smith wishes to design wedding websites (for opposite-sex weddings), or that this "course of conduct" is "affected with a constitutional interest." Instead, the controversy centers around whether or not there was a "credible threat" that Colorado would enforce the Accommodation Clause against her.

Professor Post, for example, suggests that the risk of enforcement depends on four different contingencies:

  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.

This list is far less formidable than it is made to appear. The first contingency is no contingency at all—Ms. Smith squarely alleged she intended to go into the wedding design space, and Colorado stipulated to the fact (see here at pages 186a-187a)—and Professor Post expressly concedes that the fourth contingency would also be met if the others are. So really we are talking about two contingencies: that Ms. Smith would receive a request to design for a same-sex wedding and would turn it down. And in point of fact, that final contingency is also not in dispute: for Colorado also expressly stipulated, in the district court, that Ms. Smith "will decline any request to design, create, or promote content that . . . promotes any conception of marriage other than marriage between one man and one woman." So at the end of the day, the only link in the chain of Ms. Smith's injury directly under the Accommodation Clause that is meaningfully contingent is receiving a request to provide content design services for a same-sex wedding. With respect to Professor Post, we do not think it is plausible to claim that "the likelihood of that happening [is] somewhere between 'low' and 'virtually non-existent.' " Jack Philips and Barronelle Stutzman of Arlene's Flowers would certainly agree with us.

Accordingly, we do not think Ms. Smith's standing under the Accommodation Clause—again, even setting aside her standing under the Communication Clause—is in any reasonable doubt. And that is before one even considers the 2016 request for wedding design services by a couple identified as Mike and Stewart. That is likely why neither the the Tenth Circuit nor the Supreme Court placed any weight on that request in analyzing standing. But given the controversy surrounding that request, it is worth considering how the matter would stand if the 2016 request had in fact been the lynchpin of Ms. Smith's standing—and if, as The New Republic's reporting has alleged, the request was a fake.

To begin, Ms. Smith's attorneys have stated that they believed the request was genuine, and we are not aware of anyone coming forward with any reason to doubt that representation. Under CADA, however, that reasonable belief is all that is necessary to assure Ms. Smith's standing. That is so because CADA squarely prohibits Ms. Smith from denying services not only based on a prospective customer's actual "sexual orientation," but also on her "perception thereof"—that is, her reasonable belief that the prospective customer has a particular sexual orientation. It thus matters not at all whether Mike is an actual man who wishes to marry another man named Stewart; all that matters is that Ms. Smith reasonably believed that was the case.

Unikowky does not address this point, but he might respond by arguing that Ms. Smith's belief that the request was genuine was not a reasonable one, because she should have made more of an effort "checking whether Stewart and Mike were fake." The trouble with this assertion is that an investigation into Stewart's and Mike's sexual orientation could itself have subjected Ms. Smith to liability under CADA. Unikowsky resists this conclusion, arguing interrogating a prospective customer about his sexual orientation would amount to no greater violation of CADA's Accommodation Clause than simply refusing the request. But that ignores that such an investigation (by contrast to simply refusing the request through failing to respond) would also have risked violating yet another of CADA's restrictions—barring any statement that "directly or indirectly . . . indicates . . . that an individual's patronage . . . is unwelcome, objectionable, unacceptable, or undesirable because of . . . sexual orientation." Ms. Smith quite understandably did not wish to expose herself to additional liability under this clause by interrogating the requestor about his sexual orientation.

Accordingly, Ms. Smith reasonably took the request from Stewart at face value, and that is all that is necessary for CADA's Accommodation Clause to kick in and restrict her speech. She thus had standing to challenge CADA several times over. The critics of the decision would do better to take a page from Justice Sotomayor's dissent and train their fire elsewhere.