Abstract
In 303 Creative v. Elenis, the Supreme Court effectively exempted plaintiff Lorie Smith from Colorado’s LGBT-inclusive nondiscrimination law, allowing her to refuse service to same-sex couples if she opens a business designing wedding websites. The Court upended substantive nondiscrimination law, but the opinion also has important implications for standing doctrine. Although standing doctrine requires that plaintiffs must suffer an injury in order to challenge a law’s validity, the Court granted Smith standing even though she was not yet actually in business and had never been threatened with enforcement of Colorado’s nondiscrimination law.
The Court’s lenient treatment in granting Smith standing contrasts starkly with how courts have treated LGBT plaintiffs. Both historically and recently, Congress and state legislatures have targeted their LGBT citizens for discrimination in several major areas: criminal law (through sodomy statutes), employment restrictions (such as Don’t Ask, Don’t Tell), marriage law (by barring same-sex couples from marrying), anti-nondiscrimination laws (by exempting individuals and businesses from LGBT-inclusive local nondiscrimination laws), and speech prohibitions (such as Florida’s “Don’t Say Gay” law). Despite that targeting, courts have denied standing to LGBT plaintiffs challenging these anti-LGBT laws by asserting that the plaintiffs have not suffered injury. Judges have mischaracterized the injuries of LGBT plaintiffs as hypothetical, non-imminent, and not particularized. Ironically, these labels apply more accurately to the injuries alleged by plaintiffs, such as Smith, who were granted standing to challenge LGBT-inclusive nondiscrimination laws, than they do to LGBT plaintiffs who were denied standing to challenge discriminatory laws.
No principled distinction explains why the injuries suffered by LGBT plaintiffs are insufficient for standing purposes while Lorie Smith’s bare desire to discriminate in a business she might pursue in the future is sufficient. This Article exposes this double standard and discusses hypotheses to explain its origins and persistence. Fortunately, despite the long history of courts denying LGBT plaintiffs standing to contest the constitutionality of anti-LGBT laws, future plaintiffs can now argue that 303 Creative’s holding requires courts to recognize that they have standing. The Court’s otherwise rights diminishing opinion in 303 Creative could play a role in protecting LGBT rights in the long run by helping plaintiffs secure standing to challenge anti-LGBT laws.
