Further Thoughts on Standing and the 303 Creative v Elenis case

The Court's decision in this case is likely to make a mess of standing doctrine for a long time

Several months ago, I published several posts here on the VC arguing that the Court should have dismissed Lorie Smith's challenge to Colorado's anti-discrimination law for lack of Article III standing. [see here and here].  In response, Prof. Richard Re (UVA) took the opposite position [see here and here]; he wrote:

According to many commentators [e.g., me], the Court decided what was really a "fake" or "made up" case brought by someone who asserted standing merely because "she worries." As a doctrinal matter, these criticisms are unfounded [and] the premise underlying this popular criticism is plainly incorrect. … The Court spent several pages approvingly recounting the standing analysis issued by the court of appeals. And that discussion applied a "credible threat" standard, consistent with settled case law. . . . This is a case where the existing rules were followed. Leading cases in the area are unanimous …

This past week I gave the inaugural lecture at Catholic University Law School's "Sexuality and Gender Discussion Forum" on the question of standing in this case. This presented an opportunity to take a somewhat deeper dive into the issue, and I came away more convinced than ever that the Court's decision was deeply ill-advised, inconsistent with prior precedent, a substantial expansion of existing standing rules, and likely to wreak considerable havoc in the days ahead. Let me try to explain why.

First, the facts, as summarized in the Supreme Court's majority opinion (emphases added):

"Through her business, 303 Creative LLC, Lorie Smith offers website and graphic design, marketing advice, and social media management services. Recently, she decided to expand her offerings to include services for couples seeking websites for their weddings. As she envisions it, her websites will provide couples with text, graphic arts, and videos to "celebrate" and "convey" the "details" of their "unique love story." … The websites will discuss how the couple met, explain their backgrounds, families, and future plans, and provide information about their upcoming wedding. All of the text and graphics on these websites will be "original," "customized," and "tailored" creations. The websites will be "expressive in nature," designed "to communicate a particular message." Viewers will know, too, "that the websites are [Ms. Smith's] original artwork," for the name of the company she owns and operates by herself will be displayed on every one. …

[Alert readers may notice that some of these so-called "facts" - that her text and graphics will be "original," and "expressive in nature," and "communicative" - look a lot more like legal conclusions than facts. See below.]

The Court continued:

"[S]he has yet to carry out her plans. She worries that, if she does so, Colorado will force her to express views with which she disagrees. Ms. Smith provides her website and graphic services to customers regardless of their race, creed, sex, or sexual orientation. But she has never created expressions that contradict her own views for anyone—whether that means generating works that encourage violence, demean another person, or defy her religious beliefs by, say, promoting atheism. Ms. Smith does not wish to do otherwise now, but she worries Colorado has different plans. Specifically, she worries that, if she enters the wedding website business, the State will force her to convey messages inconsistent with her belief that marriage should be reserved to unions between one man and one woman.

Although Colorado had not yet attempted to enforce its anti-discrimination statute against Smith's wedding website business - how could it, given that she didn't have a wedding website business? - the Court held that she had standing to assert a "pre-enforcement challenge" because there was a "credible threat" that Colorado would make such an attempt in the event that she followed through with her plans.

And this was, in Professor Re's view, "entirely consistent with settled case law" on which the "leading cases" are "unanimous."

That is, I continue to believe, incorrect.

The Court has described the "credible threat" doctrine this way:

"We have permitted pre-enforcement review under circumstances that render the threatened enforcement sufficiently imminent. A plaintiff satisfies the injury-in-fact requirement [for standing] where he [sic] 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." Susan B. Anthony List v. Driehaus, 134 S.Ct. 2334 (2014).

Did Lorie Smith have "an intention to engage in a course of conduct affected by a constitutional interest"?  Sure - at least, she says she did.

But it is hardly "consistent with settled law" to hold that her declaration that she "wants" to build a wedding website and had "plans" to do so, standing alone, is sufficient to support a finding of a "credible threat of enforcement." I have found no other case where the Court found that the "credible threat" standing test was satisfied where there was no evidence that the challenger would in fact engage in the specific course of conduct other than her declaration that she "wanted" to.  The Court has always required additional evidence to support the claim that the challengers will follow through on that "intention" and actually engage in that course of conduct. For example:

• The United Farm Workers Union had standing to challenge an Arizona anti-boycott law because it had engaged in numerous boycotts in the past, and stated its intention to keep doing so.  Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289 (1979)
• The Virginia Booksellers Association had standing to challenge a VA law prohibiting the sale of books "harmful to juveniles" because it was already selling books that were within the statutory prohibition, and stated its intention to keep doing so. Virginia v. American Booksellers Ass'n, Inc., 484 U.S. 383 (1988)
• The Humanitarian Law Project had standing to challenge a federal law that criminalized "knowingly provid[ing] material support to a foreign terrorist organization" because it had provided funds to groups designated as terrorist organizations prior to the law's enactment, and it stated its intention to keep doing so.  Holder v. Humanitarian Law Project, 561 U.S. 1 (2010).
• The Susan B. Anthony List, a pro-life advocacy group, had standing to challenge an Ohio law criminalizing the making of "a false statement concerning the voting record of a candidate or public official" because (a) it had previously published statements that Representative Steven Driehaus's vote in favor of the Affordable Care Act was a "vote in favor of tax-funded abortions," (b) the Ohio Elections Commission had already made the determination that there was probable cause that this statement violated the Ohio statute, and (c) the SBA List stated its intention to make similar statements concerning the voting record of other candidates to public office in the future.  Susan B. Anthony List v. Driehaus, 134 S.Ct. 2334 (2014).
• Antiwar activist James Steffel had standing to challenge a Georgia criminal trespass statute because he had already "twice been warned to stop hand-billing against American involvement in Vietnam on an exterior sidewalk of a shopping center and had been threatened with arrest by police if he failed to do so," and he had stated his intention to continue his hand-billing activities. Steffel v. Thompson, 415 U.S. 452 (1974).

Etc.

The 303 Creative case represents a substantial expansion of the credible threat doctrine to allow pre-enforcement challenges to government enactments based on nothing more than a stated desire to engage in the conduct covered by the enactment.  This is going to come back to haunt us. I want to build an airport in my backyard, but if just saying "I want to build an airport in my backyard" is enough to give me standing to challenge the FAA's jurisdiction over the building of airports, we're in for a very rough ride.

I'll say it again: This is a 100% made-up case, a Con Law I exam hypothetical masquerading as an actual, concrete dispute.

Incidentally, it is surely noteworthy that even today, five years after she filed her initial complaint, Lorie Smith has still not unveiled her wedding website. See the banner on the 303 Creative website: "Coming Soon! Custom Wedding Websites." If the Court, and those who argue that this was an actual controversy with actual facts, are not at least a little embarrassed by this, they should be.

What About Those Stipulations?

To decide a made-up case, the Court must, of course, make up some facts. The parties had stipulated to certain facts, and the Court adopted those:

• Ms. Smith is "willing to work with all people regardless of classifications such as race, creed, sexual orientation, and gender," and she "will gladly create custom graphics and websites" for clients of any sexual orientation.
• She will not produce content that "contradicts biblical truth" regardless of who orders it. Her belief that marriage is a union between one man and one woman is a sincerely held religious conviction.
• All of the graphic and website design services Ms. Smith provides are "expressive."
• The websites and graphics Ms. Smith designs are "original, customized" creations that "contribut[e] to the overall messages" her business conveys "through the websites" it creates.
• Just like the other services she provides, the wedding websites Ms. Smith plans to create "will be expressive in nature."
• Those 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.
• Ms. Smith will create these websites to communicate ideas—namely, to "celebrate and promote the couple's wedding and unique love story" and to "celebrat[e] and promot[e]" what Ms. Smith understands to be a true marriage.

The conclusion that "flows directly from the parties' stipulations" is that "the wedding websites Ms. Smith seeks to create qualify as 'pure speech' under this Court's precedents" and are, therefore, protected by the First Amendment.

No kidding!  The italicized stipulations are not "facts," they are legal conclusions - that her websites are her "original," "creative," and "expressive in nature" and that they will "communicate ideas."  Original creative expression that communicates ideas is protected by the First Amendment - surely we knew that already?! If we assume that, she wins. We already knew that, too.

The hard question in this case, and in cases like it posing a conflict between anti-discrimination law and the First Amendment, is this: Is the challenger engaging in "an ordinary commercial transaction" that does not implicate First Amendment protections, or in expressive/communicative/creative "speech" that does. The decision in this case tells us precisely nothing we didn't know before about where and how that line is to be drawn. It stands for the very unremarkable proposition that "if we assume that the challenger's actions are expressive/communicative/expressive 'speech,' they are protected by the First Amendment."  As my kids would say: Duh.

That's one of the reasons we have standing rules - to avoid wasting everyone's time on advisory opinions that tell us little or nothing about what the Court will do when presented with an actual case with actual facts.

 

Comments

[JonFrum]

Seems like an open and shut case to me. I assume there was a reason for this decision that we don’t know about, and that wasn't mentioned above.

[ah....Clem]

I think we all know the reason for this decision - the current court will twist itself int a pretzel to advance certain culture war issues, law and precedent be damned.

Prof Somin is sufficiently circumspect that he didn't express this directly, but it's pretty darned obvious.

See also the case of the football coach who sued for wrongful dismissal, even though he was never actually fired and after winning never even bothered to go back to the job he sued to retain.

[Barfer B. Jerkland]

The bitter clingers who argued for Colorado put a pole through the spokes of their own bicycle when they stipulated to 303 Creative's set of facts. When will the indietrist left-wing loser attorneys learn basic doctrines like standing and fight over them? The majority of this country and the practice of law is moving past such backwards 1970s thinking that standing doesn't matter. Carry on clingers!

[Paladin_44]

New moniker, Arthur?

[Purple Martin]

Whooosh!

[David Nieporent]

If we assume that, she wins. We already knew that, too.

Um, except that after assuming those facts, she didn’t win. Not at the district court and not at the 10th circuit.

And if it was a foregone conclusion that she wins if those facts are assumed, then why on earth would Colorado have stipulated to them? You can argue that these were "really" conclusions rather than facts, but nevertheless, Colorado obviously disagreed with your analysis.

[MaddogEngineer]

Yes, this is my view. Perhaps Colorado could have made her go away by specifically challenging her standing. They chose not to. It’s not always up to the courts if both parties agree there is a controversy. (Otherwise Griswold v Connecticut wouldn’t have happened, another case contrived to obtain a constitutional ruling). This wasn’t a typical adjudication of constitutional rights, as it involved an administrative agency with explicit (and perhaps arbitrary) power to enforce, the Damocles sword which empowered this case.

I guess Colorado thought they could dunk on her, on her merits, and establish a firmer precedent. They did in the lower courts. Given what happened to them in Masterpiece Cakeshop, it seems very stupid to think they might get the benefit of the doubt if it got all the way to SCOTUS.

[David Nieporent]

It’s not always up to the courts if both parties agree there is a controversy.

Actually, it is; you can't stipulate your way to subject matter jurisdiction (which standing is a piece of). The Court has an independent obligation to assure itself that it has jurisdiction. Now, if we're talking about purely factual matters, it's unlikely the court will look through the stipulation to inquire about whether the facts are different. But it can, and if something raises a red flag with the court and the court chooses to look into it, and finds something, it would be obligated to dismiss the case.

[David Post]

David Nieporent gets it right: standing is a constitutional requirement that is required for (federal) courts to exercise subject matter jurisdiction over plaintiff's claim. The parties cannot "stipulate" that the plaintiff has standing; both parties may want (for their own reasons) the court to hear the plaintiff's claim, but that does not relieve the court of responsibility to satisfy itself that there is a true "case or controversy" presented.

[Lee Moore]

Stipulating, for the sake of argument, that David Post is quite correct in his analysis of standing doctrine, how do we get to :

This is going to come back to haunt us. I want to build an airport in my backyard, but if just saying "I want to build an airport in my backyard" is enough to give me standing to challenge the FAA's jurisdiction over the building of airports, we're in for a very rough ride.

Does not the plaintiff, in addition to achieving standing, actually have to win on the merits ? (Or for injunction purposes, be adjudged to have a good prospect of winning on the merits ?)

It seems to me that the haunting that David Post fears is that the courts might prevent the government from doing something unlawful or unconstitutional, in circumstances where the person who has come to court to challenge it ought not - under whatever standing rules the judiciary has concocted over the years - be allowed to mount a challenge. How haunty is this haunting ?

We get a foul called on the government, when it has committed a foul. I appreciate of course that the judiciary has, over time, lovingly crafted procedures to keep disputes from coming to court and troubling their repose, and I sympathise, of course. But of all the things we have to complain about, when the actually guilty are called to judgement, that's not really in the top twenty list of legal disasters, is it ?

[Bob from Ohio]

"build an airport in my backyard"

He used this as hypothetical? LOL, it must be a big yard! He is just so dumb.

[Rev. Arthur L. Kirkland]

Is he dumb enough to believe that Jesus Christ is any more alive than the Easter Bunny, the Tooth Fairy, or Santa Claus?

(People are entitled to believe supernatural nonsense. They are not entitled to have that nonsense treated with respect when advanced in reasoned debate among adults, especially when used to promote bigotry.)

[MaddogEngineer]

Why shouldn't they expect their nonsense treated with respect? That's what the trans activists are demanding with their pronoun nonsense.

For the record, I'm perfectly fine with using anyone's pronouns. What's not okay is when activists contrive to use government to punish people who are not okay with that.

Nonsense for thee, but not for me.

[David Post]

Bob from Ohio - Given that I post relatively infrequently here on the VC, what do you do with all your accumulated anger and bile and sarcasm in between my postings? I assume there are other bloggers you think are so dumb that you feel compelled to criticize them as well, and I further assume that they take your comments as seriously as I do (as in: not seriously at all).
And my backyard is pretty big - big enough for, say, a landing site for all the drones in the neighborhood. Now do I have standing to challenge FAA rules?

[iowantwo]

Helicopters?

[David Nieporent]

Does not the plaintiff, in addition to achieving standing, actually have to win on the merits ? (Or for injunction purposes, be adjudged to have a good prospect of winning on the merits ?)

Yes, of course. But standing is an important doctrine to conserve legal and judicial resources. And obviously trial courts will sometimes get the merits wrong (that's why we have appellate courts!), so the more cases heard on the merits the more opportunities for bad decisions.

Standing is important to knock out random lawsuits seeking mere advisory opinions.

[Lee Moore]

I have a moderate amount of sympathy for that. But it seems to me this desperate need to cut down the appalling overload on the poor wee courty folk is gainsayed by that other hardy judicial annual - the "minimalist" desire to narrow the judgement to the smallest fractional point possible. Which of course usually leaves vast tracts of what was actually briefed and argued about in the case, officially undecided. Thereby guaranteeing yet more lawsuits over the next three decades to decide them.

Again I appreciate that in some cases it may be highly inappropriate to "go big" and decide a lot of stuff - if for example all the points have not been properly briefed, perhaps because the litigants think they can win on other stuff. But reluctance to decide things that have been properly briefed and on which the judges have reached a conclusion simply makes more work for the lower courts.

Leading me to doubt the true weight of this terrible overload that, er, haunts the courts.

I don't have strong views on any of this. Merely the suspicion that David Post is a bit of a drama queen.

[Rev. Arthur L. Kirkland]

.

Merely the suspicion that David Post is a bit of a drama queen.

Well, he was anointed a Volokh Conspirator, so a substantial volume of whining about modern America, partisan drama, grievance theater, and antisocial conduct is a given.

[David Post]

Lee Moore: "Again I appreciate that in some cases it may be highly inappropriate to “go big” and decide a lot of stuff – if for example all the points have not been properly briefed, perhaps because the litigants think they can win on other stuff. But reluctance to decide things that have been properly briefed and on which the judges have reached a conclusion simply makes more work for the lower courts.
Leading me to doubt the true weight of this terrible overload that, er, haunts the courts.
I don’t have strong views on any of this. Merely the suspicion that David Post is a bit of a drama queen."
Well, maybe I'm overdramatizing this, as a way to get people interested in the issue. But honestly, I don't think so; I genuinely believe that this case is going to lead to all sorts of mischief in the federal court system. It's not just an "overload" problem for the courts; it's that cases without actual facts don't resolve actual questions, like "what kind of wedding website does, and what kind of wedding website does not, fall within the scope of the anti-discrimination provision?"

[MoreCurious]

Hasn't the mischief already begun? Don't the recent arguments in the mifepristone case show the disingenuous lengths the religious right is willing to go to impose their will on the rest of us?

[Kords]

"It seems to me that the haunting that David Post fears is that the courts might prevent the government from doing something unlawful or unconstitutional . . . ."

The irony is that courts acting in this way *is* the governmental doing something unlawful or unconstitutional. If courts grant relief to a plaintiff without standing, they are exercising judicial power without subject-matter jurisdiction and thereby violating Article III of the U.S. Constitution.

Also, it's notable that the relief granted in 303 Creative didn't come as a result of Colorado acting unlawfully or unconstitutionally. It came as a result of a speculative fear that Colorado *might* act unlawfully or unconstitutionally in the future. And there are good reasons to limit judicial relief to cases where the government has actually acted unlawfully, or there is at least a credible threat of it doing so. And the point of this blog post is that the Court issued a decision despite neither of those things being true.

[Bob from Ohio]

We know Colorado has launched several actions against a baker so it is certainly a "credible threat" that it would do so against a web designer.

[Kords]

But Colorado did that in response to a complaint after the baker actually refused to make a cake for gay customers. There was no hypothetical.

Here, it was not only uncertain whether Colorado would enforce its antidiscrimination laws against 303 Creative (which I think it is likely that Colorado will be more selective in prosecution after already losing the baker case). But based on the facts before the Court, it was also uncertain whether 303 Creative would actually follow through and get in the wedding website business in the first place.

And the day before the Supreme Court issued its decision, the New Republic actually found out that 303 Creative had already designed a wedding website for a heterosexual couple in 2015. But the owner deleted it from her website before filing the lawsuit. In other words, 303 Creative had already been in the wedding website business and had not suffered any of the harms for which there was supposed a “credible threat.” The whole thing was manufactured.

[MaddogEngineer]

If what you say is true, then the state of Colorado did a crappy job defending its position in court.

Which is why I’m not sure I believe what you claim the New Republic alleges to have found. Especially since the major argument about standing many are making here is that she never engaged in the business she was challenging the Colorado statute for. Can’t have it both ways.

[Kords]

You can access the deleted wedding page via the Wayback Machine. I don't think there is any reasonable dispute on that point.

[Bob from Ohio]

She deleted it because she got scared she would get sued. Then she filed suit. Seems reasonable.

"Colorado will be more selective in prosecution after already losing the baker case"

Well, you'd be wrong.

"Reuters) - A Colorado baker who had won a narrow U.S. Supreme Court victory over his refusal to make a wedding cake for a gay couple on Thursday lost his appeal of a ruling in a separate case that he violated a state anti-discrimination law by not making a cake to celebrate a gender transition."

[Rev. Arthur L. Kirkland]

How do you know what she thought? Did sweet infant nine-pound, three-ounce baby Jesus whisper her inner thoughts directly into your inner ear?

An Easter miracle!

[MoreCurious]

Aren't you the guy who just made a fool of himself by trying to play in the same league as Professor Post? The rest of us are eagerly awaiting your response to his put-down, when you get over licking your wounds, of course.

[#FFFFFFPride]

A couple of nits:

First, you grossly misrepresent the facts of Masterpiece while being technically correct.

Masterpiece bakes cakes for gay customers. Masterpiece does not design and create bespoke gay wedding cakes for any class of customer.

Secondly, one website six or seven years prior doesn't mean she's in the business of designing wedding sites.

[Kords]

That website was designed in 2015 and she first filed her lawsuit in 2016.

"Grossly misrepresent" but "technically correct" is not a thing. I didn't go into the full detail of the facts because it wasn't relevant to the point I was making.

[mulched]

Colorado agreed with the plaintiff that they would punish her for what she planned to do and for what she planned to say on her site.

Maybe they should have made her prove it, but they didn't.

[David Post]

Kords : But Colorado did that in response to a complaint after the baker actually refused to make a cake for gay customers. There was no hypothetical.
Here, it was not only uncertain whether Colorado would enforce its antidiscrimination laws against 303 Creative (which I think it is likely that Colorado will be more selective in prosecution after already losing the baker case). But based on the facts before the Court, it was also uncertain whether 303 Creative would actually follow through and get in the wedding website business in the first place.
Precisely. The baker in Masterpiece Cake actually made wedding cakes, which meant that the Court could have looked at those cakes to determine whether they were, or were not, his "creative, communicative expression" conveying a "message." Lorie Smith hadn't made her wedding website, so we have no idea what makes it creative and/or communicative.

[Lee Moore]

Can you point me to the bit in the constitution that mentions “standing” or “subject matter jurisdiction” ?

The constitution just mentions “cases”. The rest is judge made law and judges get to determine the scope of it. Sometimes they tweak the boundaries of the stuff they made up previously.

Nothing unlawful or unconstitutional about that. Them’s judge made glosses not the constitution itself.

[Krayt]

This screetch is reminiscent of some SC decisions, and the right wing ran around about SC leaks "major effin’ problemooooo!!" to the exclusion of all else.

This has nothing to do with anything important, and, insofar as this is challenging unconstitutional laws, more power to them.

[David Nieporent]

If you mean that 303 Creative's website business specifically is unimportant: obviously. But standing as a doctrine is quite important.

Where I differ from Professor Post is that I think he's overly dismissive of her particular standing. Whether the law is likely to be enforced against her is a spectrum, not a bright line test, and I don't think it was (at the time) nearly as obvious as he claims (given those stipulations) that it was all speculative. Obviously, given her lack of action over the last year, it looks a lot more like she lied. (It would be hard to prove, of course: she could have changed her mind. But she doesn't look good.)

[Krayt]

In practice, what could be done? Unless she cracks, it would seem to end with “I considered it and gave up.”

And even if she cracked, is the SC decision nullified? Or just people raging to stick her with some law violation, like the angry people muttering “Son of a bitch!” at Dustin Hoffman up in the church balcony?

[Rev. Arthur L. Kirkland]

Sometimes, society just has to put up -- to some degree -- with liars, bigots, antisocial losers, disaffected misfits, other bigots, gullible dumbasses, half-educated right-wing rubes, etc.

Within limits, of course.

[David Post]

David Nieporent : Where I differ from Professor Post is that I think he’s overly dismissive of her particular standing. Whether the law is likely to be enforced against her is a spectrum, not a bright line test, and I don’t think it was (at the time) nearly as obvious as he claims (given those stipulations) that it was all speculative.
I might agree that it was not entirely speculative that IF she built her website, and if she refused to build a website for a same-sex couple that Colorado would have charged her with violating the statute. But was she actually going to build a website? Entirely speculative with no evidence to support it. And what was that website actually going to look like? We'll never know.

[Brett Bellmore]

"But was she actually going to build a website? Entirely speculative with no evidence to support it."

Every time I complain about the courts treating accusations, unsupported by any evidence, as enough to convict, I get told that victim testimony IS "evidence".

So, if victim testimony can be evidence enough to convict, why isn't her claim that she wanted to do it "evidence"? Granted, not the strongest evidence in the world, but still, "evidence"?

[SMP0328]

David seems to be claiming that the earlier cases he cites dealt with conduct that the challenger had committed before and had shown a likelihood to commit again, while in 303 Creative the conduct had not been committed the first time. David's reasoning would mean that if you are likely to commit an act, even if you can prove said likelihood, you don’t have standing unless you have previously committed that act. I don’t understand why that should matter.

If I have permits to build a three-story building and then the local government bars me from doing so, I should have Article III standing in federal court to bring a plausible claim of a violation of federal law or of the Constitution. It should not matter whether I’ve previously built a building.

[ReaderY]

Having a permit to build a building , which requires you to have acquired land, hired an architect, created plans, have financing in place, etc., results in a lot more concrete evidence that you actually intend to build the building than just your bare word that you want to do so someday.

[David Post]

Right. I was going to say that, but you beat me to it./DGP

[MaddogEngineer]

Yes. Maybe it does not directly bear on the 303 Media's individual, but it probably matters that the state has been pursuing enforcement of such civil rights complaints AKA Masterpiece Cakeshop. This not happening in a legal vacuum, like someone trying to make a case challenging an otherwise long dormant law.

[MollyGodiva]

This is another example of Constitutional Calvinball. The rules keep changing on a whim.

[Noscitur a sociis]

I think you’re misreading the precedent. The holdings make it pretty explicit that an allegation is enough to demonstrate an intent to engage in the relevant behavior. To the extent that they find prior practices relevant, it’s to assess the credibility of the risk of enforcement.

Incidentally, it is surely noteworthy that even today, five years after she filed her initial complaint, Lorie Smith has still not unveiled her wedding website.

Do you think the fact that the judgment wasn’t issued until three days ago may have something to do with this?

if just saying "I want to build an airport in my backyard" is enough to give me standing to challenge the FAA's jurisdiction over the building of airports, we're in for a very rough ride.

Why?

That’s a serious question. I support a pretty tight standing rule, but I’m not seeing what you think the fallout is going to be.

That's one of the reasons we have standing rules—to avoid wasting everyone's time on advisory opinions that tell us little or nothing about what the Court will do when presented with an actual case with actual facts.

I don’t follow. What is the connection you see between the putative lack of intention to create these websites and Colorado’s decision to enter into the stipulations?

[Kords]

"To the extent that they find prior practices relevant, it’s to assess the credibility of the risk of enforcement."

That doesn't make sense in cases where they had not been prosecuted before because they are dealing with a new law. The Virginia booksellers hadn't been prosecuted in the past, but they feared prosecution because they were already engaging in activity proscribed under the new law. The prior/continuing practices serve only to provide credibility to the assertion that they will engage in the conduct in the future.

You can imagine cases where a person is acting for the first time and could make a similar showing that they are likely to follow through on their intent. If a person has acquired land and permits for building something. If a person has developed detailed business plans and incurred expenses related to their intent to develop a wedding website. But that is different than merely saying, "I want to do this sometime in the future."

"Do you think the fact that the judgment wasn't issued until three days ago may have something to do with this?"

The Supreme Court issued its decision in 303 Creative on June 30, 2023. Plenty of time to get in the wedding business if she really wanted to.

"Why? . . . . I'm not seeing what you think the fallout is going to be."

When it becomes that easy to manufacture standing, it will result in overloading the courts with frivolous lawsuits. People will attempt to control government through the courts instead of through the democratic process by, for example, challenging government actions across the country with which they have philosophical disagreements but which would never plausibly impact their lives. This would inevitably lead to inconsistent and contradictory results across the country, and also handicap the legislative and executive branches from being able to effectively govern.

In addition, deciding actual "cases and controversies" makes for better law. When a court is presented with actual facts, it can tailor its ruling to address the facts before it and avoid decreeing an overbroad rule that might sound good in that case, but would make no sense in another. Allowing judges to issue decrees based on made up facts effectively transforms them into super legislators for whom there is virtually no democratic accountability.

[Noscitur a sociis]

That doesn’t make sense in cases where they had not been prosecuted before because they are dealing with a new law. The Virginia booksellers hadn’t been prosecuted in the past, but they feared prosecution because they were already engaging in activity proscribed under the new law.

Hence my use of the qualifier, “to the extent”. In American Booksellers Associaiton, the prior conduct simply wasn’t relevant to pre-enforcement standing at all.

The prior/continuing practices serve only to provide credibility to the assertion that they will engage in the conduct in the future.

Can you point me to the language in the opinion(s? Not sure if you’re still talking about American Booksellers Associaiton or being more general) that support this?

People will attempt to control government through the courts instead of through the democratic process by, for example, challenging government actions across the country with which they have philosophical disagreements but which would never plausibly impact their lives.

But again, how? All it does is say that if someone wants to challenge a government ban in something, they just have to say they want to do the banned thing, not provide corroboration that they really really want to do it.

[Sonja T]

She most likely is not creating wedding websites at this time due to the ongoing litigation. Her website indicates wedding websites creation is coming soon. That makes it harder to sue her if some litigation seeking individual wants a wedding website created for a same sex marriage.

[David Post]

Why does this decision portend a rough ride? Because it opens the door to manufactured lawsuits (like this one) of all kinds.
Suppose Florida passes a statute prohibiting the use of "woke" gender-neutral pronouns in elementary school texts; do you have standing to challenge that based on nothing more than your declaration that you "want" to write such a book? Or suppose the SEC determines that all investments denominated in cryptocurrencies are to be treated as "securities" - can you challenge that based on nothing more than your declaration that you "want" to offer such an investment (though you've never done that before)? And more generally, allowing people to bring made-up claims will lead to more opinions like this one, which don't really give us any guidance about how the law applies to actual behavior (because there hasn't been any relevant actual behavior).

[ReaderY]

It is entirely possible that Colorado’s lawyers, acting on an ideological desire to prove a point and neglecting their ethical duty to zealously represent their client using any established legal argument likely to succeed, simply threw their client under the bus to pursue their ideological goals by stipulating to the plaintiff’s standing and proposed facts rather than contesting them and attempting to win on standing, as may well have been their ethical duty.

Perhaps this case will give future lawyers seeking to defend liberal rules before a conservative court an incentive, and a lesson, not to do what Colorado’s lawyers did.

[Noscitur a sociis]

It is entirely possible that Colorado’s lawyers, acting on an ideological desire to prove a point and neglecting their ethical duty to zealously represent their client using any established legal argument likely to succeed, simply threw their client under the bus to pursue their ideological goals by stipulating to the plaintiff’s standing and proposed facts rather than contesting them and attempting to win on standing

Since Colorado initially did win on standing grounds, and aggressively defended that outcome in appeal, that seems fairly unlikely to me.

[MaddogEngineer]

If initially win on standing is a fair characterization, I would have expected standing to play a central role in SCOTUS oral arguments. That it did not makes me think this is not an accurate representation of the arguments.

I’d have to go back and read the entire record, but I suspect you are conflating standing with the merits supporting it. If you assume Colorado’s view, she probably doesn’t have standing. Unfortunately for them, their view of the merits was not the only prism through which to view standing. They stipulated to too much.

[Noscitur a sociis]

Colorado had the original case dismissed in the district court on standing grounds. The plaintiffs appealed and the Tenth Circuit found they had standing but lost on the merits. That’s the decision that the Supreme Court reviewed.

Glad you didn’t feel compelled to acquire even the most superficial familiarity with the case before spouting off!

[Rev. Arthur L. Kirkland]

Perhaps this case will give mainstream lawyers (and elected officials) an incentive to enlarge the Supreme Court and reduce the influences of movement conservatism, bigotry, backwardness, and superstition in our legal system.

[Rev. Arthur L. Kirkland]

The overarching points are

(1) Lorie Smith is a gullible, superstitious, lying, aggressive bigot.

(2) Loris Smith is entitled to be a bigot and to express her delusion and bigotry. Superstitious, lying bigots have rights, too.

(3) People who support Lorie Smith's bigoty are lousy people destined to have scant role in shaping our continuing national progress.

(4) As religion quite rightly continues to decline in modern and improving America, those who rely on or seek expansive special privilege for superstition-based positions -- especially bigoted, superstition-based positions and exemption from taxation -- are likely to regret the strident, bigoted positions of many current advocates for special treatment of religion.

(5) America becomes less religious and less bigoted each day, as cranky old conservatives die off and are replaced by better Americans in our society and electorate.

[Noscitur a sociis]

The holding of this case has nothing to do with religion.

[Rev. Arthur L. Kirkland]

She claims her bigotry -- an important element of this case, including the motivation to confect and prosecute it by her superstitious, bigoted, obsolete supporters -- is motivated by religion.

[MaddogEngineer]

She won on the issue of compelling her speech. Not about why she objected to having her speech compelled. Stop misrepresenting the holding to further your troll narrative.

[Noscitur a sociis]

That’s true, but it’s also irrelevant. The holding would compel the same outcome if she came to her position by secular philosophy, astrology, pseudoscience, or flipping a coin.

[Rev. Arthur L. Kirkland]

If you think that particular Supreme Court majority would have ruled for the lying web designer and her confected case had she not been a religious clinger (of the same flavor as the majority) and old-timey bigot, we disagree.

Do you figure the superstition-driven groups that bankrolled her case were also in high-minded pursuit of pure speech interests rather than religious bigotry interests?

[Noscitur a sociis]

[Noscitur a sociis]

[ReaderY]

[Kords]

It's actually even worse. Smith, the owner of 303 Creative, had created a wedding website for a heterosexual couple in 2015 but removed it from her website just before filing her case (although it is still accessible via the Wayback Machine). That demonstrates that she had actually already been in the wedding website design business and had not suffered any of the enforcement problems that she purportedly feared. The whole lawsuit was a conservative contrivance to attempt to undermine LGBT anti-discrimination laws.

[Rev. Arthur L. Kirkland]

.

a conservative contrivance

By conservative, you mean bigots afflicted by adult-onset superstition?

[Michael P]

You mean she did not get caught doing the kind of thing that Colorado has (with unconstitutional animus) punished others for doing.

If course, if she actually was starting a website-design business but cancelled it after designing one site, that puts the lie to the repeated mewling from the left that her wedding-site design business was entirely a fiction.

[Davy C]

OK, she built one website. That doesn't demonstrate lack of enforcement. The state probably never noticed one website out of the zillions out there. And even if they had, what were they going to do? She hadn't discriminated against anyone yet.

The problem comes the first time she *declines* to build a website. She has no way of knowing exactly when a same-sex couple would try to engage her services, but it becomes inevitable the more websites she builds. If you can show that she declined to build a website for that reason, *and* that Colorado knew about it but didn't do anything, *then* you'd have a good point.

[Commenter_XY]

Still waiting Professor Post....Ukraine was invaded 759 days ago. 🙂

I know, its rough when you have to pay up.

[Davy C]

I assume you're referring to this:

https://reason.com/volokh/2022/03/02/the-war-in-ukraine-continued/?comments=true#comment-9383669

He hasn't paid yet?

[Commenter_XY]

Still waiting. The ball is in the professor's court.

[Michael P]

Nobody likes a ... hrm, I see "welcher" is now disfavored because of possible one-time ethnic slur status, but would "reneger" be any better?

[Brett Bellmore]

I don't know, it's got an "n" and a "g" in it, that's kind of risky.

[ReaderY]

A question to Professor Post:

This case was decided exclusively on First Amendment Free Speech grounds.

Given this, why wouldn’t the overbreadth doctrine, which significantly relaxes traditional standing rules in First Amedment Free Speech cases on grounds that the mere presence of laws that can potentially chill speech creates standing, apply here? The doctrine has been applied to enable plaintiffs to attack laws merely because they might chill other people’s speech. In Secretary of State v. Munson Co. explained it, “Facial challenges to overly broad laws are allowed not primarily for the benefit of the litigant, but for the benefit of society - to prevent the statute from chilling the First Amendment rights of other parties not before the court.” Given this:

1. Why doesn’t this case fit within the overbreadth doctrine? I’ve criticized it myself in comments on this blog for relaxing standing further than Article III permits. But it’s there.

2. Given that the Overbreadth Doctrine applies exclusively to First Amendment Free Speech, doesn’t this tend to cast some doubt that the standing decision here has any application outside a First Amendment context? In your hypotheticals, such as the person suing the FAA based on a claimed wish to huild an airport someday, speech would not be involved, regular standing rather than overbreadth standing would apply, and there’d be no standing.

3. Similarly, it would seem to cast doubt on the relevance of your example precedents based on cases outside the First Amendment context.

[David Post]

ReaderY :
A question to Professor Post: This case was decided exclusively on First Amendment Free Speech grounds. Given this, why wouldn’t the overbreadth doctrine, which significantly relaxes traditional standing rules in First Amedment Free Speech cases on grounds that the mere presence of laws that can potentially chill speech creates standing, apply here?
Good question. Smith did not raise this expressly as an overbreadth case. If she had, and if the Court had found that she satisfied the (relaxed) standards for overbreadth standing, the decision would be much less troublesome because it would, as you say, be limited to cases involving challenges under the First Amendment. But as it stands now, there is no such limitation.

[not guilty]

The plaintiffs did include an overbreadth challenge, according to the Tenth Circuit opinion. 303 Creative LLC v. Elenis, 6 F.4th 1160, 1179 (10th Cir. 2021). The Court of Appeals ruled that the anti-discrimination statutes are not unconstitutionally overbroad. Id., at 1189.

SCOTUS did not address the overbreadth claim. The Colorado Anti-Discrimination Act itself has never been found to be facially unconstitutional, and it remains fully enforceable against anyone not named Lorie Smith creating wedding websites.

[Kazinski]

This is Supreme Court Decision denialism straight up.

I have a hard time reconciling that someone who thinks Election Denialism is beyond the pale then blithely goes on to deny a Supreme Court decision was correctly decided, on standing issues of all things.

[Rev. Arthur L. Kirkland]

That's something an un-American, right-wing stolen election kook -- holed up in his off-the-grid Ted Kaczynski shack to avoid modern America and all of its goddamned tolerance, progress, science, reason, education, diversity, and modernity -- would say.

[Sarcastr0]

You are comparing two utterly different things.

You can say 'the voters chose wrong' and you can say 'the Court's decision is wrong.'

What you can't say is 'the election actually came out how I want it' or 'the lay of the legal landscape is actually how I want it.'

[David Post]

Kazinski : "This is Supreme Court Decision denialism straight up.
I have a hard time reconciling that someone who thinks Election Denialism is beyond the pale then blithely goes on to deny a Supreme Court decision was correctly decided, on standing issues of all things."
Huh? Election denialism is "beyond the pale" because there is not a shred of evidence, as presented in dozens of lawsuits, that the 2020 election was stolen from Donald Trump. What does that have to do with denying that a Supreme Court decision was correctly decided? Because I happen to believe election deniers are engaged in a fantasy, does that mean I can never criticize a Supreme Court decision as being wrongly decided?? Or am I misunderstanding your point?

[Kazinski]

We have to protect our democracy, and the Supreme Court is as important an institution as their is to our democracy.

But I am sympathetic, I still think Wickard was wrongly decided, and Bernstein wrote a whole book on rehabilitating Lochner.

But I can't really think of a principled distinction that differentiates disputing Supreme Court decisions that are the law of the land, and admittedly unsupported election denialism such as the 2020 Election, the 2016 Russian collusion hoax, or the 2018 Georgia governors election.

[Sarcastr0]

Opinions are not facts; being unable to distinguish between them is really wacky.
Incorrect is an opinion. Law of the land is fact.

Having an opinion about a Supreme Court opinion is a very normal thing in academia and just normal people talking.
Going in for conspiracy theories about the 2020 election is nothing like that; it's making up facts to replace facts you don't like. And having an alternate reality is not a thing normal people do.

[DaveM]

If you're reduced to taking your stand on standing, and not on the merits, you've lost the game.

What, the state can't force someone to create something that goes against their conscience, nor force them to say something they don't want to say? Wow, tell me more. Who knew?

[Sarcastr0]

I think the merits are correct.

I think the standing is inconsistent with past precedent, and makes a hash out of standing jurisprudence.

I also think standing jurisprudence has always been a hash; it's the one place where I'm pretty legal realist.
And our nation has remained standing with an inconsistent, janky, outcome-oriented standing doctrine for the past 50 years.

This kinda sucks, but it's not existential; just more of the status quo.

[Brett Bellmore]

"And our nation has remained standing with an inconsistent, janky, outcome-oriented standing doctrine for the past 50 years."

I think somebody once said something about there being a lot of ruin in a nation? Might apply here.

[not guilty]

I'm not holding my breath, but I hope that SCOTUS in Alliance for Hypocritical Hippocratic Medicine reins in application of standing rules in manufactured lawsuits whereby lower federal courts cut a great road through the law to get after the Devil, Robert Bolt, A Man for All Seasons: A Play in Two Acts, for the benefit of plaintiffs on Eric Rudolph's side of the culture wars.

[Michael P]

It’s terrible when courts can hold people responsible for their acts in spite of convoluted attempts to evade anyone having standing, huh?

[Sarcastr0]

not guilty's point is rather the opposite - about not forgetting the value of standing in your desire to hold people responsible.

Responsibility, revenge, and going after the libs are all the same thing in your book so the idea that the ends don't justify the means is lost on you. If you just want to see the other side burn, collateral damage to the system is a feature, not a bug.

[The Margrave of Azilia]

I don’t know whether the physicians in that case have standing to challenge Kermit Gosnell’s side in the culture wars.

[The Margrave of Azilia]

-I know “consent doesn’t give jurisdiction,” but as a practical matter, one might think Colorado would raise the standing issue if it was as much of a problem as the online critics say. So, did Colorado raise the issue? Enquiring minds want to know.

-If a woman who wants to abort her child has standing to defend her right to do so – even after the child has been born – then what is the objection to a pre-enforcement challenge by someone who wants to create a Web site which her state considers illegal?

-I don't know anything about Prof. Post's yard, but let's just assume that he actually *can't* build an airport there. In contrast, a Web designer has the capacity to make a "homophobic" Web site.

[David Nieporent]

Colorado did raise the standing issue, and prevailed on it, in part, at the district court. It then lost on that issue at the 10th circuit. And then barely addressed it at SCOTUS.