Privacy, standing, and 303 Creative

The Washington Post has confirmed that the Supreme Court’s decision creating yet another exemption to public accommodations law was based in part on a total fiction:

Stewart was working on his couch in his Portland, Ore., home last week when he received a text from a New Republic reporter that left him “flabbergasted.”

A request he appeared to havemade in 2016 to a Colorado artist to create designs and possibly a website for his same-sex wedding was now part of a case before the U.S. Supreme Court, the reporter told him.

Except Stewart — who didn’t want his full name used out of fear of being harassed — is not gay. In fact, he has been married to a woman for 15 years, and he’s a web designer himself.

“I’ve been active and vocal on LGBTQ rights,” he told The Washington Post on Saturday. “So it was frustratingto see my name being used.”

On Friday, the Supreme Court ruled 6-3 in favor of a Christian graphic artist in Littleton, Colo., who argued that free speech protections allowed her to refuse to design wedding websites for same-sex couples.

In both of the Court’s major holdings on the last day of the term, in other words, the Court reached out to side with plaintiffs who clearly did not have standing.

This has left supporters of the Court’s gutting civil rights laws who used to talk about “judicial restraint” a lot when Roe was still good law to reach for all-too-familiar tu quoques:

Ok, let’s compare the privacy cases to pure hypotheticals of 303 creative:

• Griswold: Estelle Griswold and Lee Bunton were literally arrested and convicted after opening a Planned Parenthood clinic in Connecticut. The standing was “manufactured” only in the sense that the plaintiffs predicted they would be arrested if they tried to open an ordinary birth control clinic, and they were correct. It’s not clear how you could have more clearly established standing than this, and the facts of the case also retroactively strengthened the case for standing the Court had earlier rejected. The idea that it was some kind of stretch to grant standing to people who were literally arrested and convicted after trying to open a birth control clinic is one of the strangest longstanding beliefs of the reactionary legal movement.
• Roe: “Capable of repetition, yet evading review.” I assume it doesn’t require elaborate argument to explain why ordinary rules of mootness cannot apply to challenges to bans on a medical procedure that generally takes place in the first 12 weeks of pregnancy. This rule very, very obviously does not apply to a plaintiff whose purported “injury” is “I don’t like gay people and I might make a website someday.”
• Lawrence: Here, we at least have a superficial resemblance: the irony of Lawrence v. Texas is that John Lawrence and Tyron Garner probably never had sex with each other. But the superficial the comparison remains: Lawrence and Garner were in fact arrested and fined, and the lie was the state’s, not theirs. There is an actual injury here that simply doesn’t exist in 303 Creative. In addition to this — see the review of Dale Carpenter’s book linked above — bans on “sodomy” and the Court’s decision upholding them in Bowers had all kinds of discriminatory knock-off effects (on adoptions, hospital visitation, etc.) that traditional standing rules made hard to challenge. There’s nothing remotely like this about Creative 303.

So, McAardle is batting .000. There are, however, countless to quoques one could cite in the other direction. My favorite example in this context is Alito’s lengthy dissent in Whole Women’s Health arguing that abortion clinics that would literally by forced to shit down* if Texas’s TRAP law went into effect did not have the standing to challenge it. Hey, Alito’s billionaire rally girl isn’t paying for logical consistency!

*Apologies. This initially read “shit down,” but this is not what would have happened to the clinics but a description of Justice Alito’s jurisprudential philosophy. The author regrets the error.