“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—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.
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:
Smith would have had to actually open up a wedding website to the public;
Having done so, Smith would have had to receive a request from a same-sex couple for wedding-related web design/hosting services;
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
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 all that the 10th Circuit concluded; it said nothing at all about the three prior necessary preconditions. How likely is it that all of them would have been satisfied so as to generate a true “case” against Smith?
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.
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