by Elise Spenner
Beyond substantive disagreements with the Court’s rulings, critics of the sitting justices raised secondary concerns in the waning days of the recent term: Why did some of these cases make it onto the Court’s docket in the first place? Was there actually an injury to be settled, or was there just a political and ideological battle to be won? And had the Court properly handled the factual record in the case, if there was one?
These are important questions to ask. Because lawsuits are frequently discovered or manufactured to produce an ideological victory at the Court, it is more imperative than ever to have an independent understanding of the standing doctrine that dictates when the justice can hear a case.
One such case with a contentious standing debate was 303 Creative LLC v. Colorado, in which the Court ruled that Colorado’s anti-discrimination law violated a designer’s right to free speech by requiring her to design an expressive website for a same-sex couple.
In an effort to break through the echo chambers on matters of standing and the factual record, I’ll break down the justiciability arguments in 303 Creative below.
The facts: Lorie Smith owns 303 Creative LLC, a website and graphic design company in Colorado. Colorado’s anti-discrimination law (CADA), established in 1957, prohibits companies from withholding or denying their services to a person based on any part of their identity (race, sex, color, and, importantly, sexual orientation). Smith argued that the law violated her free speech rights, because it required her to create expressive and promotional websites for same-sex weddings — in violation of her religious beliefs. Smith didn’t cite a particular instance in which she had to make a website for a same-sex couple; instead, she spoke to the damages she would inevitably incur when she refused to do so.
Why many are skeptical that Smith had standing: Smith was never actually forced to make a website for a same-sex couple; likewise, she never refused to do so, and never faced the legal consequences of refusing to do so. As a result, she didn’t experience an injury in the way that we typically think of it — compelled speech, monetary loss, etc. As Justice Neil Gorsuch didn’t hesitate to admit in his opinion, Smith sued “to clarify her rights.” Needless to say, seeking clarification isn’t the most persuasive argument in favor of advancing a case with profound implications for LGBTQ+ equality across the country. But that doesn’t necessarily mean it’s not a legally sound argument.
Why the Court didn’t actually think twice about standing: In 303 Creative LLC, neither the majority opinion nor the dissent raised or addressed concerns about standing. That’s because First Amendment cases operate under unique standing doctrine. A plaintiff can bring a case in the form of “pre-enforcement” — before a law is enforced, they can sue to protect their would-be suppressed speech. However, these future injuries cannot be “imaginary or wholly speculative” and they must be imminent, rather than hypothetical. According to the appeals court, Smith would face immediate ramifications if (and when) she refused to design a website for a same-sex couple, meeting the requirements for pre-enforcement standing. Justice Gorsuch merely assumed that Smith had standing, adopting the appeals court’s reasoning.
The other complication: The day after Smith sued Colorado, a request was filed for 303 Creative to help design invites, placemats, and a potential website for a gay couple. But an investigation found that the man who was credited with submitting the form didn’t do so, and is straight. In 303 Creative’s brief before the Court, the request was cited as an example of the imminent harm Smith would face, proving her concerns were actual and not just hypothetical. But the request didn’t actually seem to impact the Court’s analysis of standing. If anything, the faux request just created additional ambiguity in a case with an already-paper thin record.
High School SCOTUS 