In the recent case 303 Creative v. Elenis, Lorie Smith asks the Supreme Court not to allow Colorado to force her to create websites for gay marriages. A day before the ruling was handed down, it was discovered that a customer request for just such a website, which was part of the judicial record, was fake.
This has prompted an outpouring of fury from liberals who believe the Court has been lied to—and since there's no longer evidence of specific harm the case should be summarily tossed out for lack of standing.
This needs to stop. This case never depended even slightly on the existence of an actual request for a website. All sides stipulated that standing to sue was based merely on a prospective "credible threat" that Colorado might force Smith to create a website that violated her deeply held convictions. That's it. This was accepted almost without discussion, and Sonia Sotomayor didn't breathe a single word of objection in her dissent.
Standing, for better or worse, is simply not an issue in this case. It was decided solely on the merits. The majority says it's a cut-and-dried First Amendment case: the state has no right to compel unwanted speech, even if its expression is related to the actions of a protected class (gay and lesbian customers). The dissent says that public accommodation laws do indeed force public businesses to provide "goods and services" to all customers equally, even if speech is incidentally involved:
Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class....The business argues, and a majority of the Court agrees, that because the business offers services that are customized and expressive, the Free Speech Clause of the First Amendment shields the business from a generally applicable law that prohibits discrimination in the sale of publicly available goods and services. That is wrong....The law in question targets conduct, not speech, for regulation, and the act of discrimination has never constituted protected expression under the First Amendment.
....For as long as public accommodations laws have been around, businesses have sought exemptions from them....This Court was unwavering in its rejection of those claims, as invidious discrimination “has never been accorded affirmative constitutional protections.” In particular, the refusal to deal with or to serve a class of people is not an expressive interest protected by the First Amendment.
The majority bases its decision on a very thin distinction indeed: Smith, they say, is innocent of illegal discrimination because she has said she will happily serve LGBT customers; she just won't sell them what they want. Soyomayor is unimpressed with this sophistry:
LGBT people do not seek any special treatment. All they seek is to exist in public. To inhabit public spaces on the same terms and conditions as everyone else....The First Amendment does not entitle petitioners to a special exemption from a state law that simply requires them to serve all members of the public on equal terms.
This is what the case is about. Can a state compel a business open to the public to treat the entire public equally, even if speech is incidentally involved? Or is the speech in this case far beyond "incidental" and therefore outside the state's legitimate interest? That's it. Standing never even comes into it.