Several months ago, I published several posts here on the VC arguing that the Court should have dismissed Lorie Smith's challenge to Colorado's anti-discrimination law for lack of Article III standing. [see here and here]. In response, Prof. Richard Re (UVA) took the opposite position [see here and here]; he wrote:
According to many commentators [e.g., me], the Court decided what was really a "fake" or "made up" case brought by someone who asserted standing merely because "she worries." As a doctrinal matter, these criticisms are unfounded [and] the premise underlying this popular criticism is plainly incorrect. … The Court spent several pages approvingly recounting the standing analysis issued by the court of appeals. And that discussion applied a "credible threat" standard, consistent with settled case law. . . . This is a case where the existing rules were followed. Leading cases in the area are unanimous …
This past week I gave the inaugural lecture at Catholic University Law School's "Sexuality and Gender Discussion Forum" on the question of standing in this case. This presented an opportunity to take a somewhat deeper dive into the issue, and I came away more convinced than ever that the Court's decision was deeply ill-advised, inconsistent with prior precedent, a substantial expansion of existing standing rules, and likely to wreak considerable havoc in the days ahead. Let me try to explain why.
