Supreme Court same-sex wedding services case allegedly hinges on fake evidence

US justice

A crucial piece of information in an LGBTQ+ rights case before the Supreme Court is false, it’s been alleged.

The US Supreme Court will decide on a First Amendment case brought by a Christian web designer who wants to make wedding websites, but not for same-sex couples.

The case of 303 Creative v. Elenis is one of the last to be decided by the Court this legislative session. The plaintiff, Lorie Smith, a Colorado-based web designer, wants to enjoin the state’s anti-discrimination law so she can offer wedding website design services to straight couples only.

As part of the filings, Smith and her lawyers, the right-wing Christian advocacy group, Alliance Defending Freedom (ADF), cite an enquiry for Smith’s services from a gay couple, Stewart and Mike.

The problem? Stewart, whose contact details appearing in the filing, says he never asked for Smith’s web design services – he’s straight.

At the time the enquiry was sent, Stewart was married to a woman.

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The Supreme Court opinion on the case is important. Associate justice Sonia Sotomayor said during an oral argument when the case was argued in December, that it could decide whether “a commercial business open to the public, serving the public… could refuse to serve a customer based on race, sex, religion or sexual orientation”.

The Colorado Anti-Discrimination Act (CADA) not only prohibits businesses open to the public from discriminating on a number of basis, including sexual orientation, but also “publishing any communication that says or implies that an individual’s patronage is unwelcome because of a protected characteristic”.

Smith wants to not only be able to refuse to make wedding websites for same-sex couples, but also to “post a message on her own website explaining her religious objections to same-sex weddings”, according to the case overview.

She argues that because her business is “expressive artistic and customised”, she has a First Amendment right not have to comply with the law and provide services to weddings that she is ideologically opposed to due to her Christian faith.

Man who allegedly asked for same-sex wedding invites says claim has been ‘falsified’

As part of an investigation into the case by New Republic, writer Melissa Gira Grant contacted Stewart, whose surname has not been made public, using the phone number on the case filing.

According to Smith’s court filings, Stewart contacted her in September 2016, asking for “design work” for invites, place names and a website” for his upcoming wedding to Mike in 2017.

However, when Grant contacted Stewart, he told her that he was hearing about his “enquiry” and the court case for “the first time”.

New Republic reported Stewart as saying: “If somebody’s pulled my information, as some kind of supporting information or documentation, somebody’s falsified that.

“I wouldn’t want anybody to… make me a wedding website.

“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.”

Smith and the ADF filed their case on 20 September 2016. The original filing did not include the enquiry from Stewart.

The allegedly false message about Stewart and Mike’s wedding was posted to Smith’s website on 21 September, which is date-stamped on later court filings. This suggests that the enquiry was submitted after the suit was originally filed.

At this point, New Republic reported that Smith had never designed a wedding website for any customers.

Stewart told New Republic that he couldn’t disagree with her [Smith’s] stance more”. He’s also a website designer, which makes it even stranger that he would ask someone who had never created a wedding website to design.

Wedding invite designer ‘wasn’t even in the industry’ when case was filed

The defence filed a motion on 19 October 2016, arguing that the case should be dismissed because Smith had received no enquiries for her services and therefore suffered no injuries. 

The ADF’s response did not mention the Stewart “enquiry”, stating only that Smith didn’t need to have received business enquiries to challenge the state’s anti-discrimination law.

It was only in February 2017 that the ADF included the text of Stewart’s allegedly false enquiry, arguing: “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.

“Even though she is not currently in the wedding industry, Lorie received an email inquiry on September 21, 2016.”

In a sworn statement, Smith said she had “received a request through the ‘contact’ webpage on my website from a person named, Stewart… to create graphic designs for invitations and other materials for a same-sex wedding”.

The federal court dismissed the case in September 2017, ruling that it could not “determine the imminent likelihood that anyone, much less a same-sex couple, will request [the] plaintiff’s services” from the evidence presented.

The court dubbed the supposed-Stewart enquiry “too imprecise” and said: “Assuming it indicates a market for [the] plaintiff’s services, it is not clear that Stewart and Mike are a same-sex couple (as such names can be used by members of both sexes).”

Smith challenged the law in federal court, alleging constitutional violations before the state had sought to enforce its anti-discrimination law against her.

Difference between Supreme Court same-sex wedding invite case and previous battles

The cases of Jack Phillips, the owner of Masterpiece Cakeshop, who won a 2021 Supreme Court case on the grounds of “religious freedom” after refusing to serve a gay couple, Barronelle Stutzman, the Christian owner of Arlene’s Flowers who settled her case after refusing to provide flowers for a same-sex wedding, and Elaine and Jonathan Huguenin, who refused to provide photography services for the commitment ceremony of a lesbian couple and had their Supreme Court appeal declined, all had one thing in common.

The businesses concerned actually offered specific services. Smith’s case hinges on her desire to offer a service and deny it to same-sex couples who allegedly never asked for it in the first place.

Smith lost her appeal in July 2021 at the 10th US Circuit Court of Appeals. In a 2-1 decision, the court ruled that CADA did not violate Smith’s First Amendment free speech protection or religious free exercise rights.

The US Supreme Court agreed to only review the free speech issue on appeal. Arguments were heard in December 2022.

Giving a view on 303 Creative v. Elenis, the American Civil Liberties Union contends that: “Granting businesses that choose to sell to the public a free speech right to discriminate if their product is expressive would either swallow the rule against discrimination or require judges to make impossible assessments about whether a good or service is sufficiently expressive to give rise to a right to discriminate.”

The Supreme Court’s ruling is expected to be issued this month.