On the heels of the U.S. Supreme Court’s ruling last week in favor of a Christian graphic artist who said it would, a man whose name and contact information appeared in case documents with an alleged request to use the designer’s services for a same-sex wedding is denying ever contacting the company.
But a legal expert says even if that claim by the plaintiff’s side wasn’t true, it wouldn’t have any practical impact on the case.
The man, who is identified by his first name, Stewart, in court filings, told CBS News and a number of other news outlets that he “did not send any requests” to 303 Creative, the web design business founded roughly a decade ago by Lorie Smith. The New Republic first reported on his claim, and he told the magazine he was already married to his wife when the purported request was submitted.
The request from “Stewart” did not actually trigger the lawsuit that Smith originally filed in Colorado seven years ago, before she started designing wedding websites. She brought what’s known as a “pre-enforcement challenge” to the Colorado Anti-Discrimination Act, or CADA, a state law prohibiting businesses open to the public from refusing service on the basis of sexual orientation, claiming it would violate her rights to free speech by forcing her to express a message that conflicts with her religious beliefs.
Later, attorneys representing Smith cited the purported request from Stewart as part of their argument that she had sufficient grounds to sue.
“The Plaintiffs also direct the Court to an email that Ms. Smith received on September 21, 2016, after the Complaint in this matter was filed. Ostensibly in response to a prompt from 303’s website asking ‘If your inquiry relates to a specific event, please describe the nature of the event and its purpose’, the email states: ‘My wedding. My name is Stewart and my fiancee is Mike. We are getting married early next year and would love some design work done for our invites (sic.), placenames(sic.), etc. We might also stretch to a website,'” reads a portion of the district court ruling, in favor of the state, in September 2017.
The district court referred to that evidence as “too imprecise,” noting that “it is not clear that Stewart and Mike are a same-sex couple” and that the email “does not explicitly request website services, without which there can be no refusal by Plaintiffs.”
“Because the possibility of enforcement based on a refusal of services is attenuated and rests on the … satisfaction of multiple conditions precedent, the Court finds that the likelihood of enforcement is not credible,” the ruling continues.
The Supreme Court’sin the case, 303 Creative LLC v. Elenis, found that the First Amendment prevents Colorado from forcing Smith to express messages contrary to her closely held religious beliefs — a ruling broadly considered a blow to LGBTQ+ rights and anti-discrimination laws in the U.S. The decision itself does not include any reference to Stewart.
Indications that the case itself may have been at least partly based on a false premise emerged last week in The New Republic, which, Stewart said, was first to notify him of his inclusion in the earlier court record.
“Thank you for reaching out and for doing your due diligence here,” Stewart told CBS News in an email. He said he has been a web designer for more than 15 years — including working as a web designer for CNN.com in Atlanta between 2012 and 2015 — and he denied sending the request mentioned the lower court filing.
“I did not send any requests to 303 Creative. I don’t [know] who did or what their motivations for doing so might be,” he said.
He previously told The New Republic that he is married to a woman, that they share a child together, and that they were already married at the time the request from “Stewart,” which included his full name and contact info, was allegedly sent to 303 Creative.
CBS News has reached out to the Alliance Defending Freedom, the group that represented Smith in the case, for comment on this aspect of the case, but has not received a response. CBS News has also asked a spokesperson for the U.S. Supreme Court for any comment.
Amanda Shanor, an assistant professor at the University of Pennsylvania’s Wharton School of Business who previously worked as a lawyer for the American Civil Liberties Union, was one of the attorneys representing Colorado in Masterpiece Cakeshop v. Colorado, athat similarly dealt with whether a business owner could refuse certain services to gay couples based on free speech and religious freedom claims under the First Amendment. The Supreme Court ruled in favor of the bakery owner in a narrow decision that did not settle the broader question. Friday’s majority in the 303 Creative case cited parts of the Masterpiece Cakeshop ruling in their decision.
Shanor told CBS News that, while the inclusion of what appears to be a false inquiry to prove standing in Smith’s case is significant, the email from “Stewart” did not play a fundamental role in the court’s decision — which mainly focused on Smith’s First Amendment protections and acknowledged that she had proven standing to sue based on a credible threat of retaliation from the state of Colorado. Referencing the earlier decision in Masterpiece Cakeshop, the majority cited “Colorado’s record of past enforcement actions under CADA, including one that worked its way to this Court five years ago.”
“I think as a practical matter, that piece of information did not end up mattering for the lower courts or for the Supreme Court’s decision,” Shanor said of the “Stewart” email. “We could question whether or not that’s right.”
Standing requirements are often more relaxed in First Amendment cases, so it can be easier to get pre-enforcement challenges than it is in other types of cases, Shanor said. She suggested that lower courts may not have followed up on the email “because they didn’t think it was going to matter for the standing question and, therefore, for the case.”
“The constitutional arguments against civil rights laws are old, but the idea to bring them under the speech clause is relatively new,” Shanor explained. “But one of the quote-unquote advantages, if you’re ADF [Alliance Defending Freedom, the group that represented Smith], would be that you can cook up a good plaintiff without even, in the public eye, having to see the other side who’s harmed. All you see in the press… is the religious person who feels like they are being encumbered by these civil rights laws. You don’t see the people who then are excluded from public accommodations.”
Attention now being paid to the alleged email from “Stewart” raises questions about how and why the legitimacy of this element in 303 Creative v. Elenis went unconfirmed for years as the case moved upward through the U.S. court system.
“We raised the fact that it was not a real request,” Lawrence Pacheco, a spokesperson for the Colorado Attorney General’s Office, told CBS News.
Pacheco referenced a section of the office’s 2022 merits brief that explains, in part, why the district court found that Smith had not shown sufficient evidence that she had been harmed by the state’s anti-discrimination policies to constitute a challenge, since “no customers had sought any services from the Company.”
“The Company claims that, after it sued, it received a ‘request for a same-sex-wedding website,'” the brief states. “But the ‘request’ referred to by the Company was not a request for a website at all, just a response to an online form asking about ‘invites’ and ‘placenames,’ with a statement that the person ‘might also stretch to a website.'”
“The Company did not respond to that online form,” it continues. “Nor did the Company take any steps to verify that a genuine prospective customer submitted the form.”
The Supreme Court’s ruling in the case came at the end of a week in which the conservative majority handed down major decisions on issues includingand . The three liberal justices dissented, saying the majority’s decision in the wedding website case gives businesses a “license to discriminate.”
President Biden has also criticized the court’s ruling.
“In America, no person should face discrimination simply because of who they are or who they love,” Mr. Biden said in a statement. “The Supreme Court’s disappointing decision in 303 Creative LLC v. Elenis undermines that basic truth, and painfully it comes during Pride month when millions of Americans across the country join together to celebrate the contributions, resilience, and strength of the LGBTQI+ community.”
The public revelation casting doubt on the email from “Stewart” may have come as a surprise, but it would not be the first time the Supreme Court ruled on a case with unknown or misrepresented origins.
The court’s landmark ruling in Lawrence v. Texas — which in 2003 struck down a state sodomy law that criminalized consensual sex acts between people of the same sex — arose out of a case whose most fundamental facts were dubious. Legal scholars today note that details of the arrest underlying that case were “cloaked in mystery and some secrecy,” with conflicting accounts from deputies at the scene, complicated by issues of race, class and attitudes toward LGBTQ+ people. Ultimately, while the two gay men at the center of it were arrested in Houston in 1998 for violating the Texas sodomy law, they were not a couple and there are conflicting accounts of whether they were having sex. Nevertheless, the case went all the way up to the U.S. Supreme Court, where the justices decided Texas’ law was unconstitutional.
Margaret Brennan and Melissa Quinn contributed reporting.