After the Supreme Court ruled last week that a Colorado chart has the right to refuse to create same-sex marriage websites, critics of the decision raised questions about a form included in the court records in the case that appeared to show that a gay couple had sought the services of designer, Lorie Smith.
The man who allegedly submitted the form said he was unaware of its existence until called it a reporter from The New Republic. Plus, he’s straight, married to a woman, and a supporter of gay rights. The apparent falsehoods, critics said, undermined the court’s decision.
What is known about the request?
It was apparently featured on the website of Ms. Smith’s company, 303 Creative, on the afternoon of Sept. 21, 2016, the day after she filed a lawsuit in Colorado federal court challenging an aspect of the state’s antidiscrimination law. She said in the lawsuit that the law violated the First Amendment by forcing her to espouse beliefs that conflicted with her faith.
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The form was said to have been filled out by someone named Stewart and to include a real email address and phone number. « We are getting married early next year and would love some design work done for our invites, place names, etc, » Stewart wrote, saying his partner’s name was Mike. « We could even extend to a website. »
It is undisputed that Mrs Smith never complied with the request. But she later mentioned it in court documents, ostensibly to suggest that her case was more than hypothetical.
What did the parties to the Supreme Court say?
Ms. Smith’s attorneys dedicated a ruling to the matter in their main mandate. « Although Colorado blocked Smith from advertising her wedding services, » they wrote, « she has already received at least one request for a same-sex marriage website. » A citation page a followed a large appendage of previous filings filed jointly by the parties, which included the form.
In their main mandate in the case, Colorado attorneys said the form was irrelevant to the court’s decision.
“The company” – a reference to Ms. Smith’s company – “claims that, after suing, it received a ‘request for a same-sex marriage website,’” the brief says. “But the ‘request’ the company refers to was not a request for a website at all, just a response to an online form asking for ‘invitations’ and ‘place names’, with a statement that the person’ it could even extend to a website.' »
« The company did not respond to that online form, » the Colorado brief said. « Nor did the company take any steps to verify that a real potential customer submitted the form. »
Lawrence Pacheco, a spokesman for Phil Weiser, the state attorney general, said Colorado’s brief noted the request was problematic. « We brought up that it wasn’t a real request, » he said.
In an interview last year, Mr. Weiser focused on what he believed was the most important issue in the case: the lack of meaningful documentation.
« This is a made-up case, » said Mr. Weiser. “There are no websites created for a wedding. There was no one turned away. We are in a world of pure hypotheticals.
What did the Supreme Court say on the matter?
Neither majority opinion nor dissent hinted at the purported request or seemed to give it weight.
Judge Neil M. Gorsuch, writing for the majority on Friday, approvingly summarized an appellate court ruling that Ms. Smith and her firm had determined to sue because they faced a credible fear of retribution under of a Colorado anti-discrimination law if they offered marriage-related services, but rejected people seeking to enter into same-sex unions.
In disagreement, Judge Sonia Sotomayor did not discuss the request or the outstanding issue.
What Do Lorie Smith’s Lawyers Say?
« Whether he was genuine or if he was a troll, we don’t know, » Kristen Wagoner, president of the Alliance Defending Freedom, which represents Ms Smith, said in an interview.
Investigating the matter would have been legally dangerous, Ms. Wagoner said. « If Lorie had followed through, » she said, « Colorado already said she would be prosecuted for breaking the law. »
Ms Wagoner said critics should focus on what the court has decided. « They should criticize the ruling on its substance rather than perpetuate falsehoods about the case, » she said.
What does Stewart say?
« No one connected to this case has ever contacted me to attempt to verify the accuracy of the information contained in the court records, » Stewart said on Monday, requesting that his last name not be used. He added that he was « disappointed by the Supreme Court’s ruling and the implications for the LGBTQ+ community. »
What happens next?
Mr. Pacheco, a spokesman for the Colorado attorney general, said his office « is evaluating whether further action is needed. » But there is little reason to think that the Supreme Court, which does not appear to have relied on the request, would be willing to reconsider its ruling based on recent revelations on the matter.
