Could a ‘fake’ same-sex couple force the Supreme Court to revisit a case targeting LGBT+ rights?

It’s unlikely, but critics continue to question the outcome of a case that could have wider consequences for discrimination protections, pointing to a growing mystery surrounding an apparently fabricated statement in the middle of it, Alex Woodward reports

Thursday 06 July 2023 15:14 BST
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Does it matter if a piece of evidence, or an anecdote, or a sworn statement in a legal fight that makes it to the US Supreme Court turns out to be fake?

What if someone’s identity and statements they never made were involved without their knowledge, by attorneys who now accuse them of lying?

Moments before the nation’s highest court ruled in favour of a Christian website designer who wanted to legally reject same-sex couples from using her services, a man whose name is used throughout the case said he had nothing to do with it. The attorneys defending the designer now suggest that it’s more likely he is the one lying.

Critics have wrestled with both the outcome of the case – which could have far-reaching impacts for LGBT+ rights and potentially obstruct state governments’ abilities to protect them – and how the court should respond to revelations about the alleged facts in the middle of it.

Meanwhile, nobody has been able to answer who, exactly, is responsible for what appears to be a fake inquiry to the designer’s website, using a fake same-sex couple, that is tangled up in a Supreme Court decision with wider implications beyond her Colorado business.

In sworn statements and arguments shared with the court, attorneys for Lorie Smith stated that a same-sex couple inquired about her services for their upcoming wedding – but the request appears to be a fake. Following the ruling, the man who is accused of making such an inquiry has repeatedly, emphatically stated he had nothing to do with it. He’s also already married – to a woman.

The ruling and the discovery of the apparently fabricated request have drawn widespread outrage and demands that the justices – who ruled in a case that includes what appears to be demonstrably false information – revisit the case.

That’s unlikely, according to legal experts.

Neither the Supreme Court’s conservative majority nor the dissent referenced the apparently fake request in their writings in the case; Justice Neil Gorsuch, writing for the conservative majority, said that Ms Smith established legal standing by showing that she feared facing legal consequences for refusing same-sex couples from her business.

If anything, attorneys involved with the legal challenge could face an ethics complaint, but revisiting a decision “is a nonstarter,” former US Attorney Barb McQuade told Salon.

“If the allegations about fabrication are true, then the lawyers may have an ethics problem to address with their state bar, but it will not affect the outcome of the case,” he said.

Lorie Smith speaks outside the Supreme Court in December 2022.

Neal Katyal, a former acting US Solicitor General and the Paul and Patricia Saunders Professor of National Security Law at Georgetown Law Center and a partner at the law firm Hogan Lovells, argued that the “totally hypothetical and made-up” scenario in this case should compel the Colorado attorney general to file for a rehearing.

“The Supreme Court has a procedure to seek a rehearing, so to say, ‘Hey, Supreme Court, there’s a new fact that emerged and we need you to revisit your ruling,’ so that’s possible,” he told MSNBC. “The Supreme Court can also on its own ask for a briefing on this new question on whether this case is made up.”

Constitutional law scholar Laurence Tribe told Salon that Mr Katyal is likely exaggerating.

“But it would be a mistake to let that obscure the central fact that the entire case was based on entirely hypothetical ‘worries’ that the web designer claimed to have,” he added.

Conservative supporters of the court’s decision have defended the outcome, arguing that, similarly, the “Roe” at the center of the landmark case that affirmed a constitutional right to an abortion in 1973’s Roe v Wade was not pregnant at the time of that decision.

But Norma McCorvey, the Jane Roe in that case, was pregnant when she made the initial complaint to seek an abortion, three years before the Supreme Court weighed in.

“She was having the exact problem that she was trying to remedy, namely seeking an abortion because she was pregnant,” Mr Katyal said. “Here, this web designer has never once done a website for an LGBT couple. It’s the exact opposite situation. It’s totally hypothetical and made up. I think the Colorado attorney general should consider bringing a rehearing petition before the US Supreme Court.”

Critics have argued that the challengers subverted the use of a pre-enforcement challenge, typically used to prevent an unconstitutional law from going into effect, by invoking a First Amendment defense at the expense of LGBT+ equal protections.

And in this case, the pre-enforcement review was used to overturn a law that had been in effect for years.

Jonathan Miller, an attorney and the chief program officer at the Public Rights Project, told NBC News that the apparently fabricated inquiry shows “there are serious questions about the facts and record in this case” and that the lawyers involved should not have allowed “an unverified account to be part of the record.”

Ms Smith did not want to run afoul of state law that prohibits public-facing businesses from discriminating against LGBT+ people, but she did not have any such clients. In her legal challenge, supported by the influential right-wing legal group Alliance Defending Freedom, she argued that the state’s law infringed on her First Amendment rights.

The Alliance Defending Freedom sought to bolster its argument by pointing to an alleged inquiry to Ms Smith from a same-sex couple.

One of those men, who is named throughout the case, and whose phone number and email address were attached in court filings, has asserted that he has nothing to do with it.

In 2016, Ms Smith claimed in filings that a man named “Stewart” contacted her website to help with his upcoming wedding to a person named “Mike”: “We are getting married early next year and would love some design work done for our invites, placenames etc. We might also stretch to a website.”

That alleged request for services came within 24 hours after Ms Smith first filed her lawsuit in state court.

Ms Smith never followed up on the request, but the inquiry was referenced several times throughout the yearslong legal challenge.

The New Republic found “Stewart”. He said he had no idea that his name and information were used in the case.

“If somebody’s pulled my information, as some kind of supporting information or documentation, somebody’s falsified that,” he explained to The New Republic. “I’m married, I have a child – I’m not really sure where that came from? But somebody’s using false information in a Supreme Court filing document.”

He said nobody involved with the case has ever reached out to him or sought to verify whether the information included in court filings was accurate or genuine.

A spokesperson with Colorado’s attorney general said the office was evaluating whether to pursue any other actions in the case.

The Independent asked representatives for the Alliance Defending Freedom how “Stewart” became involved with the case. The group has not appeared to answer similar questions from other media outlets that have scrutinized the aftermath of the Supreme Court’s decision.

Instead, senior counsel Kellie Fiedorek said in a statement to The Independent that the findings are a “last-minute attempt to malign Lorie [that] smacks of desperation to delegitimize her civil rights case and our judicial system.”

She also said that Ms Smith “doesn’t do background checks on incoming requests to determine if the person submitting it is genuine.”

“Whether Lorie received a legitimate request or whether someone lied to her is irrelevant. No one should have to wait to be punished by the government to challenge an unjust law,” the statement added.

Following several rounds of press scrutiny into the revelation of the allegedly false example in the case, the Alliance Defending Freedom issued another statement, this time through an outside public relations agency, to “set the record straight”. The group accused opponents of the ruling of revving up a “misinformation engine” about the case.

The statement attributed to the group’s president, CEO and general counsel Kristen Waggoner, said any suggestion that Ms Smith or the Alliance Defending Freedom fabricated a request is a “lie”.

“It would make no sense to have fabricated a request because one wasn’t required for the court to decide her case,” she added. “And it’s telling that many who push this false narrative can’t bring themselves to consider the more likely scenario that ‘Stewart’ or another activist did in fact submit the request.”

In a motion filed by attorneys for Colorado in 2016 to dismiss the case, they pointed out that Ms Smith had never received any request for services and had no standing to sue. A response from the Alliance Defending Freedom asserted that it was not necessary to have received any such inquiry before challenging state law.

But months later, in February 2017, attorneys for the group said that Ms Smith did receive an inquiry, weeks before Colorado attorneys asked to dismiss the case.

“Notably, any claim that Lorie will never receive a request to create a custom website celebrating a same-sex ceremony is no longer legitimate because Lorie has received such a request,” according to the filing.

The group also mentioned “Stewart” and “Mike” in a press release later that year.

In a December 2021 filing with the Supreme Court, attorneys for Colorado responded to the alleged request again, noting that the inquiry “was not a request for a website at all, but just a response to an online form asking about ‘invites’ and ‘place-names,’ with a statement that the person ‘might also stretch to a website.’”

The Alliance Defending Freedom fired back in a reply brief, once again mentioning a request that may not even exist: “Colorado’s claim – that a request from ‘Mike’ and ‘Stewart’ for a wedding website does not reflect a same-sex wedding request – blinks reality.”

LGBT+ advocacy groups and the White House fear that the outcome of the case could open the door for rollbacks to discrimination protections. Justice Sonia Sotomayor noted in her dissent that the ruling follows a wave of state laws targeting LGBT+ people.

“This case cannot be understood outside of the context in which it arises,” she wrote. “In that context, the outcome is even more distressing. … In this pivotal moment, the Court had an opportunity to reaffirm its commitment to equality on behalf of all members of society, including LGBT people. It does not do so.”

In a statement defending the outcome and railing against critics, Ms Waggoner said that “everyone, including those who identify as LGBT, should be thrilled that the Supreme Court upheld free speech” in the case.

“This manufactured sideshow is a frantic attempt to delegitimize a historic Supreme Court decision, a client whom Colorado censored for seven years, and a court that upheld a foundational American principle,” she added. “For those who aren’t happy with it, they should criticize the ruling based on its substance rather than perpetuating falsehoods about the case.”

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