Hypothetical Imminence: The Supreme Court in 303 Creative Relaxes Injury-In-Fact Standing Requirements for First Amendment Pre-Enforcement Challenges.

The article analyzes the Supreme Court’s treatment of standing in *303 Creative LLC v. Elenis*, a 2023 First Amendment pre-enforcement challenge involving a Colorado anti-discrimination statute. The Court held that Colorado could not compel a business owner, Lorie Smith, to create wedding websites for same-sex couples contrary to her religious beliefs, but it provided only a brief and superficial analysis of whether Smith had standing to sue. Unlike prior cases requiring a plaintiff to show an actual or imminent injury—demonstrated by prior enforcement against the plaintiff, intent to engage in conduct arguably prohibited by law, and a credible threat of enforcement—Smith’s alleged injury was hypothetical and contingent on multiple uncertain events, including a same-sex couple actually requesting her services. The article situates this decision alongside the similar *Masterpiece Cakeshop* case, noting that *303 Creative* relaxed standing requirements, potentially enabling courts to decide cases lacking a concrete factual record and raising concerns about judicial overreach and advisory opinions issued without a true case or controversy. This shift may reflect the Court’s recent ideological realignment and has implications for future pre-enforcement challenges to anti-discrimination laws.