Comment by André Guidry
“To clarify her rights, Ms. Smith filed a lawsuit in federal district court.” At face value, this opening sentence of the standing discussion in 303 Creative LLC v. Elenis radiates justiciability concerns. This “fake case,” as some have called it, concerned the hypothetical conflict between a Colorado anti-discrimination statute and First Amendment free speech. In 2023, the United States Supreme Court considered whether the state could compel a business owner to create wedding websites for same-sex couples at odds with the owner's religious beliefs. The 6-3 conservative majority held that Colorado could not. Critically, though, the Court failed to conduct a thorough analysis of the business owner's standing to bring the action in federal court in the first place.
Lorie Smith, the owner of 303 Creative LLC, provides a range of digital design and consulting services. She considers her professional services “expressive” and refuses to create websites and designs that communicate messages inconsistent with her religious beliefs. Smith's biography on the 303 Creative website elaborates: “As a Christian who believes that God gave me the creative gifts expressed through this business, I have always strived to honor Him in how I operate it.”
Smith wanted to begin offering a new service: creating custom wedding websites. But she chose not to carry out her plans. Citing her religious beliefs, she feared that she might have to create wedding websites that convey support of same-sex marriage. Smith therefore brought a pre-enforcement action in federal district court--before any same-sex couple requested a wedding website--to preemptively enjoin Colorado from enforcing its anti-discrimination law against her. Smith feared that if she provided wedding website services, a same-sex couple might request those services, and Colorado might then compel her to do so.
The record before the Supreme Court contained no allegation that anyone ever asked Smith to make a website for a same-sex wedding. The district court record, however, reveals an allegation that Smith received an e-mail about a same-sex wedding after she filed her complaint. She pointed to this e-mail to show that her case was more than just hypothetical. The e-mail read: “My wedding. My name is Stewart and my fiancee is Mike. We are getting married early next year and would love some design work done .... We might also stretch to a website. The district court found that this e-mail was inadequate to confer standing on Smith, as it was unclear whether it was from a same-sex couple and whether it was an explicit request for a wedding website. In the absence of any explicit request, the district court found that Smith's fear of Colorado's enforcement was separated by “multiple conditions precedent” and dismissed her claim for lack of standing. The district court's dismissal has since proved prescient. It was revealed years later that the e-mail was fake. When a reporter contacted the man who supposedly sent the e-mail to Smith, he was surprised to learn of its existence. In fact, he was a straight, married man.
Because no one ever requested Smith's website services for a same-sex wedding, her alleged injury--that Colorado would force her to “speak” against her beliefs--was inherently speculative. Although it is not necessary for a plaintiff to have suffered an actual injury before bringing an action, a plaintiff must allege, at a minimum, an imminent future injury. A hypothetical future injury is insufficient. The threshold issue in 303 Creative concerned the debatable imminence of an alleged future injury in a specific context: a pre-enforcement challenge to a statute on the grounds that it violates the plaintiff's First Amendment rights. In such an action, a person has standing to challenge a statute if they show, among other things, a credible threat that the statute will be enforced against them in the future.
This Comment considers whether 303 Creative is appropriately deemed a “fake case.” Specifically, this Comment is a novel exploration of the standing issue in 303 Creative and argues that the plaintiff's alleged future injury was more hypothetical than imminent. The Court gave short shrift to the speculative nature of Smith's alleged injury when considering her standing, at odds with its precedent in the First Amendment pre-enforcement context. In doing so, the Court relaxed the injury-in-fact standing requirement in First Amendment pre-enforcement challenges. Part II is an overview of the Article III standing doctrine with a focus on distinguishing hypothetical and imminent injury, both in general and in the pre-enforcement context. Part III discusses the Court's superficial standing analysis in 303 Creative and analyzes its inconsistencies with precedent. Part IV then explores the standing issue in 303 Creative in light of the Court's recent ideological shift and how the Court's issuance of the decision oversteps its constitutional authority. Part V briefly concludes.
About the Author
André Guidry. J.D. Candidate 2025, Tulane University Law School; M.S. 2020, University of North Carolina at Charlotte; B.S. 2018, University of Louisiana at Lafayette.
Citation
99 Tul. L. Rev. 657