In their ruling in 303 Creative v. Elenis, the Supreme Court ruled that businesses have an almost limitless religious get out of jail free card to discriminate.
The facts of a case seem to be relatively straightforward, a web designer was asked to design a site for a gay wedding, and was concerned that she was at risk of legal sanctions if she refused, and SCOTUS ruled in her favor.
It turns out that a lot of this is a lie, there never was anyone asking her to design a gay marriage website:
Long before the Supreme Court took up one of the last remaining cases it will decide this session—the 303 Creative v. Elenis case, concerning a Colorado web designer named Lorie Smith who refuses to make websites for same-sex weddings and seeks an exemption from anti-discrimination laws—there was a couple named Stewart and Mike. According to court filings from the plaintiff, Stewart contacted Smith in September 2016 about his wedding to Mike “early next year.” He wrote that they “would love some design work done for our invites, placenames etc. We might also stretch to a website.” Stewart included his phone number, email address, and the URL of his own website—he was a designer too, the site showed.
This week, I decided to call Stewart and ask him about his inquiry.
………
Yes, that was his name, phone number, email address, and website on the inquiry form. But he never sent this form, he said, and at the time it was sent, he was married to a woman. “If somebody’s pulled my information, as some kind of supporting information or documentation, somebody’s falsified that,” Stewart explained. (Stewart’s last name is not included in the filing, so we will be referring to him by his first name throughout this story.)
“I wouldn’t want anybody to … make me a wedding website?” he continued, sounding a bit puzzled but good-natured about the whole thing. “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.
………
When Smith and her attorneys, the Christian right group Alliance Defending Freedom, or ADF, brought this case for the first time, it was to the United States District Court in Colorado in 2016, and they lost. Smith and ADF filed the case on September 20 of that year, asking the court to enjoin the state anti-discrimination law so that Smith could begin offering her wedding website design services to straight couples only. Up to this point, Smith had never designed any wedding website. (In fact, her website six months prior to the lawsuit being filed in 2016 does not include any of the Christian messaging that it did shortly afterward and today, archived versions of the site show.) The initial lawsuit did not mention the “Stewart” inquiry, which was submitted to Smith’s website on September 21, according to the date-stamp shown in later court filings, indicating that she received it the day after the suit was originally filed.
………
All that may be true. But speedier, perhaps, than consulting SSA data would have been picking up the phone. According to Stewart, no one did until 2023, when I reached him.
“I’m not really sure where that came from,” he told me of the mysterious 2016 inquiry that used his name, email address, and cell phone number to request a wedding website for a same-sex marriage nearly a decade after he married a woman. He is a designer himself, something of a known quantity in design circles—he’s spoken at conferences and on podcasts, and has a “decent Twitter following,” he said. The design world is small. But not small enough, he said, that he had heard of Lorie Smith—not until her case was already before the Supreme Court, and the design community began discussing its potential fallout.
It didn’t make sense to him, he told me later via text message. Why would a web designer—as the website the inquiry referenced as his own made clear that he was—living in San Francisco, seek to hire someone in another state who has never built a wedding website, let alone a website for a same-sex wedding, to build his wedding website?
Civil rights cases are different from most other cases. You don't have to show actual damages, because the very existence of a law creates a fear of legal jeopardy which can prevent constitutionally protected behavior.
They did not need to perpetrate a fraud on the court to pursue this case, but they did, and they knowingly did.
It could have been a PR ploy, or it could have been an attempt to provide cover for the court's decision to hear the case in the first place, or maybe they were worried that without such a request, Lorie Smith was never at risk of being asked to do a gay wedding, they did not meet even the relaxed standards of a civil rights lawsuit.
Given that Gorsuch gleefully (and possibly knowingly) used fraudulent facts in his opinion should effect the legitimacy of this decision, but it has not for the State Secrets Privilege first decided in United States v. Reynolds, when the government lied about the cause of a B-29 crash in order to prevent embarrassment, and not to protect a secret government project.
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