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Standing Was Never an Issue in 303 Creative v. Elenis. It was Decided, Wrongly, on the Merits Alone [1]
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Date: 2023-07-03
Lorie Smith petitioned the Supreme Court not to allow Colorado to force her to create websites for gay marriages. It turn out that a customer request was fake. That discovery has let loose fury here and elsewhere: the Court was lied to. The Court suborned perjury, the Court should have tossed the case out for lack of standing. The Court is negligent, incompetent, out of control.
Not so fast.
Standing was never at issue in 303 Creative v. Elenis. All sides stipulated that standing to sue was based on a prospective "credible threat" that Colorado might force Smith to create a website that violated her deeply held convictions.
The following are taken from the holding:
To secure relief, Ms. Smith first had to establish her standing to sue. That required her to show “a credible threat” existed that Colorado would, in fact, seek to compel speech from her that she did not wish to produce. Susan B. Anthony List v. Driehaus, 573 U. S. 149, 159 (2014).
and
Ultimately, the district court ruled against Ms. Smith.405 F. Supp. 3d 907, 912 (Colo. 2019). So did the Tenth Circuit. 6 F. 4th, at 1168. For its part, the Tenth Circuitheld that Ms. Smith had standing to sue. In that court’s judgment, she had established a credible threat that, if she follows through on her plans to offer wedding website services...
You need not take my word for it. Here is a link to the decision. You can download the pdf, and search for “credible threat,” and/or “standing” and see for yourselves.
That is why Sotomayor’s dissent doesn’t even mention standing. It was not issue.
303 Creative v. Elenis was decided solely on the merits:
— The conservative majority says it's a First Amendment case, that the state has no right to compel unwanted speech, even if it is expression related to the actions of a “protected class.”
“Sorry Ma’am. I refuse to use my expressive talent for you.”
— The dissent says that public accommodation laws do indeed force public businesses to provide "goods and services" to all customers equally,
The conservative majority is wrong.
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