The recent Supreme Court ruling in favor of an evangelical Christian web designer who refused to work on same-sex weddings did not depend on what now appears to have been a request from a bogus client, legal experts told NBC News on Monday.
In a case that ended up representing a setback for LGBTQ rights, the focus on the potential client first arose after web designer Lorie Smith said in a previous court filing that someone named Stewart had contacted her in 2016 to set up a website for her marriage to a person named Mike.
That narrative was called into question last week after The new republic published an article about Stewart, who denied having approached Smith, quoting him as saying he was a web designer who had been married to a woman for years.
“I wouldn’t want anyone… to make me a wedding website.” the man identified only as Stewart told the magazine. “I’m married, I have a son, I’m not quite sure where that came from. But someone is using false information in a Supreme Court filing document,” he said.
The revelation has led to complaints on social media that the case should never have made it to the Supreme Court, with many arguing that Smith had no legal standing to bring the case if there were no clients seeking his services.
Legal experts contacted by NBC News disagreed.
“Although I think he [Supreme Court] That opinion is wrong in many ways, I think he has a position,” said Carolyn Shapiro, a professor at Chicago-Kent Law School. She noted that Smith had sought what is known as a pre-application challenge, and Smith argued that his right to free speech was being chilled by a Colorado state law.
“She says I want to do something that is definitely against the law in Colorado. I think it’s probably enough for a pre-application challenge,” Shapiro said.
Smith filed a lawsuit in 2016 saying she wanted to build wedding websites, but was concerned that Colorado’s Anti-Discrimination Law would force her to also build same-sex wedding websites. She said that she wanted to publish a statement of hers on her website making clear her opposition to doing so.
Jonathan Miller, an attorney and director of programs for the Public Rights Project, a civil rights legal group, said that “pre-application review is generally good” and “necessary to ensure that unconstitutional laws do not take effect.” However, he questioned its use in this case, since the law in question had been in place for years.
Miller said the inclusion of the apparently bogus investigation in the court record shows that “there are serious questions about the facts and the record of this case.” The lawyers in the case should not have allowed “an unverified account to be part of the registry,” Miller said.
Jonathan Scruggs, lead attorney for Alliance Defending Freedom, the group that filed Smith’s lawsuit, said, “Lorie had no reason to believe the email was false,” and that she never responded for fear of activating Colorado law. .
“She didn’t reach out because that would violate the law itself,” Scruggs said.
Smith also had an advantage in the case, Shapiro and Miller said: Then-Colorado Attorney General Cynthia Coffman, a Republican, had signed a generous “Joint Statement of Stipulated Facts” in the case that laid out numerous positions about her beliefs.
“I don’t think it was good strategic litigation to pass all those provisions,” Shapiro said.
Writing for the conservative majority in the 6-3 missJudge Neil Gorsuch cited stipulations showing that “the wedding websites that Ms. Smith seeks to create qualify as pure speech protected by the First Amendment.”
Ed Whelan, a conservative lawyer who supports the court’s decision, said that what Smith was seeking was “a standard pre-First Amendment relief” and that the Colorado law he was challenging made him feel like he was ” caught between a rock and a hard place.” place.”
Whelan, who clerked for the late Justice Antonin Scalia and is now a distinguished senior fellow at the Center for Ethics and Public Policy, said he did not believe the “fake” client was a relevant factor in the court’s decision, as it is not even mentioned in the majority or dissenting opinion. He also noted that the disputed email was sent to Smith the day after he filed the complaint about him and it was reported in the media.
“All this innuendo doesn’t make any sense,” Whelan said, adding that it was more likely a prank on Smith than an effort on his part to mislead the court.
Smith’s lawyers had used email to try to bolster their case in court documents, but to no avail.
The federal judge who initially ruled on the case, Marcia S. Krieger, downplayed the email in her decision, noting that “it is not clear that Stewart and Mike are a same-sex couple (as such names may be used by members of both sexes)”.
Krieger found that Smith had a right to sue anyway, but ruled against his claims. Smith appealed to the US Court of Appeals for the Tenth Circuit, which also found that he had standing, but rejected his legal challenge.
The appeals court concluded that Smith and his company had “sufficiently demonstrated intent to provide graphic and web design services to the public in a manner that exposes them to [Colorado Anti-Discrimination Act] liability and a credible threat that Colorado will prosecute them under that statute.”
In his majority opinion, Gorsuch cited the appellate court ruling on standing and wrote, “neither party disputes these conclusions.”
It also found that Smith “had established a credible threat that if she goes ahead with her plans to offer wedding website services, Colorado will invoke CADA to force her to create speech she does not believe or endorse.”
In sharp wording 38 page dissentJudge Sonia Sotomayor called the ruling “heartbreaking” and said it was part of “a backlash to the movement for freedom and equality of sexual and gender minorities” and a kind of “reactionary exclusion”.
One thing Sotomayor didn’t mention, Whelan said, was any concerns about Smith’s legal position in bringing the case in the first place.
“All the judges agreed,” he said.
