Argument: Vacating Creative LLC vs. Elenis

[ModernDiogenes]

ripe

www.law.cornell.edu

Proposition: The SCOTUS may only hear cases that actually exist. A case may only exist if there are actual defendants and plaintiffs. The notion that a case must be "ripe" comes into play. That being that the Constitutional controversy must be founded in facts truly at issue in a case involving real events.

It has been asserted the the case of Creative LLC vs. Elenis is a fictional set of facts created to establish a ruling founded on a hypothetical. This would seem to negate the ability of the court to have standing and to make a determination.

Arguments for or against the validity of vacating the decision based on the premise that the SCOTUS was lacking standing to rule as the case was not "ripe"?

 

[noonereal]

Yep, the court should have never taken this case.

 

[ModernDiogenes]

Yep, the court should have never taken this case.

Yes, but it did. So I am asking whether it can be, legitimately overturned based on a lack of initial standing to hear it. An almost unprecedented occurrence.

Anyone with any notions, arguments, etc., on whether that is possible, how it would be done, or whether it should even be attempted?

 

[dmpi]

The time and place to bring this up is with the lower courts. The person to bring this up is the lawyers for the plaintiff and/or the defendants. Everyone else is just 'blowing smoke' & 'spitting into the wind'.

 

[ttwtt78640]

IMHO, requiring ’ripe’ is a bad idea, since it basically requires trying to get unconstitutional toothpaste back into the tube. It’s better to be able to get a judge (at some level) to make a ruling or issue an injunction than to require allowing a preventable wrong from occurring, potentially multiple times, before a case can be started.

 

[btthegreat]

The problem here is convincing a court that has already decided it wants to make a ruling, bad enough to ignore your argument in the first place

 

[NotreDame]

Yes, but it did. So I am asking whether it can be, legitimately overturned based on a lack of initial standing to hear it. An almost unprecedented occurrence.

Anyone with any notions, arguments, etc., on whether that is possible, how it would be done, or whether it should even be attempted?

In this context, where the parties stipulated to facts, not hypotheticals but facts and the following from the decision:

“For its part, the Tenth Circuit held 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 ser-vices, Colorado will invoke CADA to force her to create speech she does not believe or endorse. Id., at 1172-1175.


The court pointed to the fact that "Colorado has a history of past enforcement against nearly identical conduct-ie., Masterpiece Cakeshop"; that anyone in the State may file a complaint against Ms. Smith and initiate "a potentially burdensome administrative hearing process; and that


"Colorado has] declined' to disavow future enforcement" proceedings against her. Id., at 1174. Before us, no party challenges these conclusions”


Translation, 303 Creative did have standing to sue.

 

[NotreDame]

The time and place to bring this up is with the lower courts. The person to bring this up is the lawyers for the plaintiff and/or the defendants. Everyone else is just 'blowing smoke' & 'spitting into the wind'.

The issue of standing was addressed by the 10th Circuit and District Court.

 

[ModernDiogenes]

In this context, where the parties stipulated to facts, not hypotheticals but facts and the following from the decision:

“For its part, the Tenth Circuit held 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 ser-vices, Colorado will invoke CADA to force her to create speech she does not believe or endorse. Id., at 1172-1175.


The court pointed to the fact that "Colorado has a history of past enforcement against nearly identical conduct-ie., Masterpiece Cakeshop"; that anyone in the State may file a complaint against Ms. Smith and initiate "a potentially burdensome administrative hearing process; and that


"Colorado has] declined' to disavow future enforcement" proceedings against her. Id., at 1174. Before us, no party challenges these conclusions”


Translation, 303 Creative did have standing to sue.

Is it the case that a party that doesn't exist has standing to sue anyone?

IF that is the case, is it not fruit of a poisonous tree. that a decision on facts that were stipulated from a plaintiff that existed only as a construct of someone's imagination?

It's not that I am saying your position is without merit. I am saying it can't be said to be one way or the other as its not fleshed out. You state it is on existing fact at evidence, but not that its root wasn't wrong to begin with. You can't, usually, make that which was falsehood to begin with fact based on someone mistaking it for fact at some point. Once it is determined to be false at its conception nothing will make it truth afterward. So the Tenth Circuit finding may very well be moot.

 

[Rexedgar]

Has there ever been a SCOTUS case overturned?

What court has that authority?

 

[VanceMack]

ripe

www.law.cornell.edu

Proposition: The SCOTUS may only hear cases that actually exist. A case may only exist if there are actual defendants and plaintiffs. The notion that a case must be "ripe" comes into play. That being that the Constitutional controversy must be founded in facts truly at issue in a case involving real events.

It has been asserted the the case of Creative LLC vs. Elenis is a fictional set of facts created to establish a ruling founded on a hypothetical. This would seem to negate the ability of the court to have standing and to make a determination.

Arguments for or against the validity of vacating the decision based on the premise that the SCOTUS was lacking standing to rule as the case was not "ripe"?

There was no 'fictional' defendant. The defendant is the head of the states Civil Rights panel and the plaintiff sued because of the states practices. And she won.

 

[PoliSciPulse]

So, I looked up the case and searched for the word standing. The Tenth Circuit, which gave the website designer standing, REALLY REALLY messed up, and so did the State of Colorado:

For its part, the Tenth Circuit held 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, Colorado will invoke CADA to force her to create speech she does not believe or endorse. Id., at 1172–1175. The court pointed to the fact that “Colorado has a history of past enforcement against nearly identical conduct—i.e., Masterpiece Cakeshop”; that anyone in the State may file a complaint against Ms. Smith and initiate “a potentially burdensome administrative hearing” process; and that “Colorado [has] decline[d] to disavow future enforcement” proceedings against her. Id., at 1174. Before us, no party challenges these conclusions.

-If- she decided to have that business. She didn't even launch her business when the lawsuit was filed. That's like saying I have standing in an abortion case because I might have unprotected sex some day. Meanwhile, I'm a virgin. And a guy.

 

[PoliSciPulse]

Has there ever been a SCOTUS case overturned?

What court has that authority?

Well, Dobbs technically overturned Roe V. Wade. The only way a Supreme Court case can be overturned is by the Supreme Court itself. And that's if it agrees to hear what in this case would be the same court case heard by the same court judges trying to overturn their own ruling. You would need at least one new justice to be different to at least get a 5-4 ruling, two new justices to fully "overturn" it.

 

[Rich2018]

ripe

www.law.cornell.edu

Proposition: The SCOTUS may only hear cases that actually exist. A case may only exist if there are actual defendants and plaintiffs. The notion that a case must be "ripe" comes into play. That being that the Constitutional controversy must be founded in facts truly at issue in a case involving real events.

It has been asserted the the case of Creative LLC vs. Elenis is a fictional set of facts created to establish a ruling founded on a hypothetical. This would seem to negate the ability of the court to have standing and to make a determination.

Arguments for or against the validity of vacating the decision based on the premise that the SCOTUS was lacking standing to rule as the case was not "ripe"?

What mechanism would you propose for the SC to revisit an earlier ruling ?

 

[NotreDame]

that a decision on facts that were stipulated from a plaintiff that existed only as a construct of someone's imagination?

It's not that I am saying your position is without merit. I am saying it can't be said to be one way or the other as its not fleshed out. You state it is on existing fact at evidence, but not that its root wasn't wrong to begin with. You can't, usually, make that which was falsehood to begin with fact based on someone mistaking it for fact at some point. Once it is determined to be false at its conception nothing will make it truth afterward. So the Tenth Circuit finding may very well be moot.

Is it the case that a party that doesn't exist has standing to sue anyone?

Which “party” doesn’t exist? And I remind word, the word “party” when discussing a case and decision has a precise understanding and I’m operating off of this understanding.

IF that is the case, is it not fruit of a poisonous tree.

No, because Fruit of the Poisonous Tree is a doctrine of 4th Amendment law, where an unlawful search taints what is discovered as a result of the unlawful search. How do I know? A reason I know is because I teach 4th Amendment law, and have litigated approximately 75 suppression hearings.

that a decision on facts that were stipulated from a plaintiff

The facts were stipulated to by both sides dude!! The petitioner and respondent, the plaintiff and defendant, both stipulated to the facts. Read the decision.

am saying it can't be said to be one way or the other as its not fleshed out.

Yes, “it can be said to be one way or the other” as a result of both thr plaintiff/defendant agreed to the stipulated facts, the logic of pre/enforcement, especially pre-enforcement in relation to the plaintiff/defendant agree upon stipulated faces. Poignantly, in the context of pre-enforcement, the following of “"Colorado [has] decline[d] to disavow future enforcement" proceedings against her,” is compellingly in favor of standing.

You can't, usually, make that which was falsehood to begin with fact based on someone mistaking it for fact at some point.

The decision didn’t rest upon, is not based upon, does not rest upon, the presumed “falsehood” and the falsehood isn’t necessary for the decision. The same is true of the plaintiff’s case. So, your falsehood them of “moot” is irrelevant because her standing to sue exists regardless of the presumed falsehood.

 

[Checkerboard Strangler]

Yes, but it did.

And it has to "UN-take" it because it's a bullshit case that never existed.

 

[ModernDiogenes]

What mechanism would you propose for the SC to revisit an earlier ruling ?

I don’t know. It’s unprecedented, which is what makes it interesting.

I suppose the court might have to decide to hear evidence as to whether “Smith” actually exists< someone actually attempted to contract services, etc. if it turns out that us the case the court may have to decide whether it broke it’s own rules, then whether, if they decide they did, that makes a difference in their having ruled.

We could, theoretically, have SCOTUS vacated its own finding.

S0 far it looks like they aren’t interested in looking at it. I suppose it will depend on how much heat gets turned up on this.

 

[Grizzly Adams]

ripe

www.law.cornell.edu

Proposition: The SCOTUS may only hear cases that actually exist. A case may only exist if there are actual defendants and plaintiffs. The notion that a case must be "ripe" comes into play. That being that the Constitutional controversy must be founded in facts truly at issue in a case involving real events.

It has been asserted the the case of Creative LLC vs. Elenis is a fictional set of facts created to establish a ruling founded on a hypothetical. This would seem to negate the ability of the court to have standing and to make a determination.

Arguments for or against the validity of vacating the decision based on the premise that the SCOTUS was lacking standing to rule as the case was not "ripe"?

There are no serious arguments against the case. Pre-enforcement challenges are commonplace in the first amendment realm. The "actual defendants and plaintiffs" were the State of Colorado and 303 Creative, respectively. Courts don't have standing; they have jurisdiction. Smith was found to have standing at every level by establishing a credible threat that her intended activities would fall within the scope of the Colorado Anti-Discrimination Act. The State of Colorado could have easily negated the "hypothetical" by stating Smith would not be in violation of the statute; they did not.

 

[Rich2018]

I don’t know. It’s unprecedented, which is what makes it interesting.

I suppose the court might have to decide to hear evidence as to whether “Smith” actually exists< someone actually attempted to contract services, etc. if it turns out that us the case the court may have to decide whether it broke it’s own rules, then whether, if they decide they did, that makes a difference in their having ruled.

We could, theoretically, have SCOTUS vacated its own finding.

S0 far it looks like they aren’t interested in looking at it. I suppose it will depend on how much heat gets turned up on this.

Well the case needs to be reopened in order to hear evidence

So you'd have to decide a pathway on how the SC could revisit an previous ruling.

 

[Visbek]

ripe

www.law.cornell.edu

Proposition: The SCOTUS may only hear cases that actually exist...

The courts can't rule on hypotheticals... but they can review pre-enforcement challenges. In this case, as legal experts are pointing out:

- The state was clear they would sue the business in this situation
- The business owner still had standing, because she claimed she was already impacted by the policy -- in particular, she wanted to advertise her businesses' anti-homosexual bigotry, which would have led to an enforcement action
- The state AG noted in its brief that the email was probably fake
- A lower court disregarded the email, pointing out that the email didn't definitively identify as a same-sex couple, and found Smith still had standing
- Neither ruling nor dissent focused on the email
- The email wasn't an actual request for service anyway

In short, the email didn't matter. This is a bad ruling, but not because of the fake email. It's a bad ruling because it punches a gaping hole in civil rights protections, giving people carte blanche to justify discrimination on the basis of a vague religious claim.

 

[ttwtt78640]

The courts can't rule on hypotheticals... but they can review pre-enforcement challenges. In this case, as legal experts are pointing out:

- The state was clear they would sue the business in this situation
- The business owner still had standing, because she claimed she was already impacted by the policy -- in particular, she wanted to advertise her businesses' anti-homosexual bigotry, which would have led to an enforcement action
- The state AG noted in its brief that the email was probably fake
- A lower court disregarded the email, pointing out that the email didn't definitively identify as a same-sex couple, and found Smith still had standing
- Neither ruling nor dissent focused on the email
- The email wasn't an actual request for service anyway

In short, the email didn't matter. This is a bad ruling, but not because of the fake email. It's a bad ruling because it punches a gaping hole in civil rights protections, giving people carte blanche to justify discrimination on the basis of a vague religious claim.

This ruling is not applicable to all people as that bolded above implies.

 

[Visbek]

This ruling is not applicable to all people as that bolded above implies.

Despite any alleged specificity in the opinion, the reality is that this is going to unleash a flurry of lawsuits where people invoke religious beliefs in order to discriminate against people. Given the current composition and rulings of the court, it is certainly not a given that the SCOTUS will limit the exceptions to some vague form of "expressiveness."

 

[ttwtt78640]

Despite any alleged specificity in the opinion, the reality is that this is going to unleash a flurry of lawsuits where people invoke religious beliefs in order to discriminate against people. Given the current composition and rulings of the court, it is certainly not a given that the SCOTUS will limit the exceptions to some vague form of "expressiveness."

Hmm… isn’t that using the ‘slippery slope’ argument which is considered taboo when used by those objecting to (ever more) “gun control” laws?

 

[Visbek]

Hmm… isn’t that using the ‘slippery slope’ argument which is considered taboo when used by those objecting to (ever more) “gun control” laws?

Nope.

A "slippery slope" argument suggests that any tiny incremental change leads to an inexorable path of continuous incremental changes, which adds up to a big difference. That is rarely true, and is not what I'm suggesting. I'm saying that the SCOTUS has blown a gigantic loophole in discrimination laws, which bigoted litigants will now try to exploit as broadly as possible.

Smith is now exempt from anti-discrimination laws, claiming that they compelled her to express something contrary to her religious beliefs. There is absolutely no reason to believe that reasoning is limited only to same-sex marriage or other LGBT issues. For example, religious beliefs were frequently cited as a justification for racial segregation and bans on intermarriage through the 1980s. Or, she could claim that she doesn't see Islam as a legitimate religion, and thus refuses to provide wedding website services to Muslims.

Given the court's recent behavior, I see no reason to believe this will be interpreted in the narrowest possible manner. The opposite is almost certainly going to be the case. E.g. any public accommodation can now construct an argument that it is "expressive," and therefore exempt from anti-discrimination laws. They can refuse services to gays, Blacks, Jews, Catholics, women.... You name it, it's only a matter of time before we see it in litigation.

 

[NotreDame]

So, I looked up the case and searched for the word standing. The Tenth Circuit, which gave the website designer standing, REALLY REALLY messed up, and so did the State of Colorado:



-If- she decided to have that business. She didn't even launch her business when the lawsuit was filed. That's like saying I have standing in an abortion case because I might have unprotected sex some day. Meanwhile, I'm a virgin. And a guy.

Oh good grief, read the entirety of the decision before commenting erroneously on this segment of the opinion.

She already had a website business. She decided to expand her website business to include wedding websites and began preparations. However, wedding websites confronted her with a proverbial Scylla or Charybdis decision to include same sex wedding websites although she disagreed with the same sex message or exclude same sex weddings and face actions and fines from the CCRD.

So, she instituted a cause of action in federal district court requesting Declaratory Relief and a permanent injunction. This requires she have standing. The issue is Standing occurred within the context of what is recognized in the legal field as pre-enforcement. Standing in the context of pre-enforcement is not foreign to SCOTUS, as a body of jurisprudence regarding standing in the context of pre-e enforcement has developed over the years. In this context, she had to establish “a credible threat" existed that Colorado would, in fact, seek so compel speech from her that she did not wish to produce” if she proceeded to expand into wedding websites.”

She easily satisfied Standing, that there’s a “credible threat” Colorado would enforce its public accommodation law against her to produce sale sex wedding websites once she began creating wedding websites and her evidence was, inter alia, her company is 1) Public accommodation under Colorado law 2) Colorado has a long history of enforcement of the public accommodation law, including the renown Master Piece Cake Shop that appeared before SCOTUS, 3) Stipulated facts agreed to by the parties and 4) “Colorado has a history of past enforcement against nearly identical conduct i.e., Masterpiece Cakeshop"; that anyone in the State may file a complaint against Ms. Smith and initiate "a potentially burdensome administrative hearing" process;” and 5) "Colorado has] decline[d' to disavow future enforcement" proceedings against her.

The very concept of pre-enforcement is for the IF you bizarrely criticize as some fatal flaw. Standing within the context of pre-enforcement exists to allow a party to challenge application of a law where there is a “credible threat” of harm/enforcement of that law IF someone does something. This type of challenge allows a party to avoid the let’s wait for enforcement thereby exposing a party to “potentially burdensome administrative hearing" resulting in fines, time, resources, attorney fees, etcetera.

So, no, you’ve not demonstrated the 10th Circuit “REALLY, REALLY, messed up,” as the 10th Circuit correctly Held she demonstrated a “credible threat” of enforcement will transpire against her when she began wedding websites, and therefore, she does have standing.