‘Sham’ customer likely didn’t affect Supreme Court ruling on same-sex weddings, experts say

The Supreme Court’s recent ruling in favor of an evangelical Christian web designer who refused to work on same-sex weddings did not hinge on what now appears to have been a request from a fake customer, legal experts told NBC News on Monday.

In a case that wound up dealing a setback to LGBTQ rights, the focus on the potential customer first arose after web designer Lorie Smith said in a previous court filing that someone named Stewart had reached out to her in 2016 about putting together a website for his marriage to a person named Mike.

That narrative was thrown into question last week after The New Republic published an article on Stewart, who denied ever reaching out to Smith, and quoted him saying he was a web designer who has been married to a woman for years.

“I wouldn’t want anybody to … make me a wedding website?” the man identified only as Stewart told the magazine. “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.

The revelation has led to complaints on social media that the case should never have made it as far as the Supreme Court, with many arguing that Smith did not have legal standing to bring the case if there weren’t any customers seeking her services.

Legal experts reached by NBC News disagreed.

“Though I think the [Supreme Court] opinion is misguided in many ways, I do think she has standing,” said Carolyn Shapiro, a professor at Chicago-Kent College of Law. She noted that Smith had sought what’s known as a pre-enforcement challenge, with Smith arguing that her right to free speech was being chilled by a Colorado state law.

“She’s saying I want to do something that’s definitely against the law in Colorado. I think that’s probably enough for a pre-enforcement challenge,” Shapiro said.

Smith filed suit in 2016 saying she wanted to design wedding websites, but was concerned that the the Colorado Anti-Discrimination Act would force her to have to put together websites for same-sex weddings as well. She said she wanted to post a statement on her website making clear her opposition to doing so.

Jonathan Miller, an attorney and chief program officer at the Public Rights Project, a civil rights legal group, said “pre-enforcement review is generally good” and “needed to ensure unconstitutional laws don’t go into effect.” He questioned its use in this case, however, since the law in question had been in effect for years.

Miller said the inclusion of the apparently phony inquiry in the court record shows “there are serious questions about the facts and record in this case.” The lawyers in the case should not have allowed “an unverified account to be part of the record,” Miller said.

Jonathan Scruggs, senior counsel for the Alliance Defending Freedom, the group that brought Smith’s lawsuit, said, “Lorie had no reason to think the email was a fake,” and that she’d never responded to it for fear of triggering the 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 off on 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 sign off on all those stipulations,” Shapiro said.

Writing for the conservative majority in the 6-3 ruling, Justice Neil Gorsuch cited the stipulations as showing “the wedding websites Ms. Smith seeks to create qualify as pure speech protected by the First Amendment.”

Ed Whelan, a conservative attorney who’s supportive of the court’s decision, said what Smith was seeking was “standard First Amendment pre-enforcement relief,” and that the Colorado law she was challenging had her feeling she was “stuck between a rock and a hard place.”

Whelan, who clerked for the late-Justice Antonin Scalia and is now a distinguished senior fellow at The Ethics and Public Policy Center, said he didn’t think the “sham” client was a relevant factor in the court’s decision since it isn’t even mentioned in the majority opinion or the dissent. He also noted the disputed email was sent to Smith the day after her complaint was filed and reported on in the media.

“This whole insinuation makes no sense at all,” Whelan said, adding that it was more likely a prank on Smith than an effort on her behalf to deceive the court.

Smith’s attorneys had used the email to try to bolster her case in court filings, but to no avail.

The federal judge who initially ruled on the case, Marcia S. Krieger, brushed off the relevance of the email in her decision, noting, “it is not clear that Stewart and Mike are a same-sex couple (as such names can be used by members of both sexes).”

Krieger found Smith had standing to sue regardless, but ruled against her claims. Smith appealed to the 10th U.S. Circuit Court of Appeals, which also found she had standing but rejected her legal challenge.

The appeals court found Smith and her company had “sufficiently demonstrated both an 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 appeals court’s finding on standing, and wrote, “no party challenges these conclusions.”

He also found that Smith “had established a credible threat that, if she follows through on her plans to offer wedding website services, Colorado will invoke CADA to force her to create speech she does not believe or endorse.”

In a sharply worded 38-page dissent, Justice Sonia Sotomayor called the ruling “heartbreaking” and said it was part of “a backlash to the movement for liberty and equality for gender and sexual minorities” and a type of “reactionary exclusion.”

One thing Sotomayor did not mention, Whelan noted, was any concerns about Smith’s legal standing to bring the case in the first place.

“Every justice agreed,” he said.