The Supreme Court ended its latest term by giving business owners a license to discriminate under the guise of free speech. But a strange aspect of the case has taken on a life of its own — namely, the “service request” for a same-sex wedding that Colorado designer Lorie Smith received doesn’t appear to have been a legitimate request at all.
How then, you might wonder, could the court have decided this case based on a sham foundation? The answer is that the request — however dubious — wasn’t the basis for the ruling. It wasn’t the foundation.
That is, the Republican-appointed majority decided Smith’s claim in what’s known as a pre-enforcement challenge. That’s what it sounds like — a challenge to a law that’s raised before it’s enforced. Smith wanted to enter the wedding website business, and the Christian graphic artist wanted to do so in a discriminatory way that would have run afoul of Colorado law. In Justice Neil Gorsuch’s majority opinion, he gave her an out. He said the First Amendment blocked the state from forcing a designer to create an “expressive” design communicating a message with which the designer disagrees.
As for the infamous request in question: It apparently was sent to Smith’s business, 303 Creative, in 2016 on the day after she filed suit. It’s viewable in court records. The request was supposedly sent by someone named “Stewart,” regarding his upcoming wedding to “Mike,” with contact information including an email address, website and phone number that minimal effort reveals are all connected to a real person named Stewart. Indeed, Stewart’s website showed that he was a designer, too.
But The New Republic reported last week that one of its journalists had used this information to contact Stewart, who said he isn’t gay, was married to a woman at the time of the request and said it was the first such contact from a reporter.
I have since reached out to Stewart using the email address in the court filings, and he told me he didn’t send the request and doesn’t know who did or why. He also said he supports LGBTQ+ rights and is disappointed with the ruling.
Regardless of who sent it or why, Smith presented the request as legitimate during the litigation. For example, a 2017 affidavit she signed referred to Stewart’s request without casting doubt on its veracity. In petitioning the justices to hear the case, Smith’s lawyers with the Alliance Defending Freedom (who pressed a similar appeal previously, for the baker in the Masterpiece Cakeshop case) wrote that Smith “has already received a request to create a website celebrating a same-sex wedding.” In trying to convince the justices not to hear the case, Colorado’s lawyers downplayed the request’s significance, while ADF’s lawyers sought to bolster it in a reply brief.
To be sure, the request was far from the only thing discussed in these court papers. And more importantly, perhaps, was ADF’s fallback position in its reply brief: Colorado law forbade Smith’s “‘practice’ of entering the market to offer only certain websites even if she receives no requests.” Nonetheless, the request from Stewart was similarly mentioned, briefly, in the parties’ court filings after the justices granted review.
So, were the justices thinking about Stewart and Mike when they granted review? Maybe. It takes at least four justices in favor to review an appeal, and the vote tally isn’t public. But it’s fair to assume those justices were at least some of the ones siding with Smith in Gorsuch’s majority opinion.
Would they have granted review even if this request never existed? Probably. As the opinion — and other cases from this term, like the student loan ruling — showed, if a majority wants to reach a certain result, it’s fully capable of doing so based on motivated reasoning alone, regardless of who’s bringing the case or how.
What we know is that the Stewart/Mike request wasn’t the basis for the ruling — neither in the majority opinion nor in Justice Sonia Sotomayor’s dissent, which homed in on Gorsuch’s suspect legal reasoning and its dangerous implications. “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,” Sotomayor wrote.
The majority didn’t need Stewart, Mike or anyone else to reach that result. But even if the request didn’t feature in the final ruling, that doesn’t mean it doesn’t matter: Even if it won’t lead to the ruling being overturned, it was cited as a real thing during the litigation. How it matters, though, is an open question. It’s hard to understand why Smith or ADF might have concocted this request. When it comes to fraud, they don’t always catch the smart ones, but why would Smith or ADF have used the real information of a real person who is really opposed to their beliefs? In statements to reporters, including NBC News, ADF lawyers have said that Smith couldn’t have reached out to the requestor, because doing so would have been in violation of the Colorado Anti-Discrimination Act. But that doesn’t mean Smith or her lawyers couldn’t have done minimal research into the legitimacy of the request before citing it in court filings. I asked ADF on Wednesday whether Smith or the group had done so. In a statement through a spokesperson, the ADF lawyer who argued the case, Kristen Waggoner, told me her client “does not do background checks on her requests” and that Smith “had no reason to believe the request wasn’t genuine as it was a request from ‘Stewart and Mike’ for a wedding website.” (It’s debatable whether the request was actually for a website; it mentioned other design work and added, “We might also stretch to a website.”) Waggoner also said neither ADF nor Smith “investigated the request because Lorie could not respond to, or interact with, any wedding-related inquiries as Colorado could punish Lorie for doing so.” Referring to the internet protocol address listed in the request, Waggoner lamented: “Unfortunately, few have bothered to investigate where the requestor’s IP address originates. A quick and easy search today lists the IP address as the San Francisco area, where Stewart lived according to The New Republic.” It’s fair enough to point out that this information should be scrutinized when scrutinizing it. But that commonsense observation makes it harder to defend not having undertaken such a “quick and easy search” before citing the request as legitimate in court filings.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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