Wednesday, November 5, 2025

More standing for pre-enforcement religious challenges

For the specifics of the wedding web site case that we discussed as a hypo:

The case is 303 Creative v. Elenis; the Court did not grant cert on standing, although the lower courts did address it (district court dismissed for lack of standing, Tenth Circuit found standing). Richard Re addresses the "she didn't have standing" arguments from the left, explaining why the plaintiff satisfies SBA and why the left's arguments to the contrary might portend an ideological shift on pre-enforcement standing (something we will discuss next week). Re's piece is only 26 pages, so not a heavy read. 

Skim the transcript of the argument in Chiles v. Salazar, which we might call Child of 303 Creative and Masterpiece. This is a challenge to a Colorado (again) law prohibiting conversion therapy (a form of therapy designed to convert someone to being straight). The plaintiff is a therapist, although she does not practice conversion therapy. Although the Court did not grant cert on standing, it came up during argument, particularly from Justice Sotomayor and Justice Gorsuch. The question is what the statute means and its scope and whether it might reach therapy not specifically defined as "conversion." Prof. Re describes the arguments over the issues.