July 05, 2023 11:47 AM UTC

303 Creative: A Sham Sandwich Made In Colorado

• 6 Comments
• by: Colorado Pols

Since last Friday’s ruling by the U.S. Supreme Court in the case of Colorado-based web designer Lorie Smith, upholding Smith’s “pre-enforcement challenge” to Colorado law preventing Smith from refusing to make “wedding websites” for LGBTQ+ couples, questions have arisen about the legitimacy of the underlying facts of the case.  AP reports via the Denver Post:

A Christian graphic artist in Colorado who the Supreme Court said can refuse to make wedding websites for gay couples pointed during her lawsuit to a request from a man named “Stewart” and his husband-to-be. The twist? Stewart says it never happened.

The revelation has raised questions about how Lorie Smith’s case was allowed to proceed all the way to the nation’s highest court with such an apparent misrepresentation and whether the state of Colorado, which lost the case, has any legal recourse… [Pols emphasis]

When Smith originally filed the case back in 2016, the state argued that since Smith hadn’t actually been in a position to break Colorado’s anti-discrimination law, the case should be dismissed. In response,

Smith’s lawyers maintained that she didn’t have to be punished for violating the law before challenging it. In a February 2017 filing, they revealed that though she did not need a request to pursue the case, she had, in fact, received one. [Pols emphasis] An appendix to the filing included a website request form submitted by Stewart on Sept. 21, 2016, a few days after the lawsuit was filed. It also included a Feb. 1, 2017 affidavit from Smith stating that Stewart’s request had been received.

What it looks like to us is that back in 2016, there was real doubt about whether Smith’s “pre-enforcement challenge” to Colorado’s anti-discrimination laws would be upheld since Smith had suffered no actual harm–so either Smith or someone on her legal team did what Jesus would do in this situation and made a case up! In the end, the absence of an actual request for the services Smith wanted to deny certain customers was not held against Smith and her challenge to Colorado law was allowed to proceed, but for whatever reason, nobody thought to remove this as-it-turns-out fictional request for an LGBTQ+ “wedding website” from Smith’s supporting court filings.

NBC News explains through legal experts why this matters:

Jonathan Miller, an attorney and the 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, because the law had been in effect for years.

Miller said the presence 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 shouldn’t have allowed “an unverified account to be part of the record,” Miller said. [Pols emphasis]

So why didn’t Smither and her legal team withdraw this fiction after it was ruled it wasn’t needed? It appears the attempt to beef up Smith’s up shaky standing with a bogus request for services didn’t end with the fight over dismissing the case back in 2016:

Here’s Lorie Smith insisting on CNN in December that same-sex couples had indeed asked her to design wedding websites. Since then journalists have exposed that the one example she gave Colorado was fabricated. Is she lying? pic.twitter.com/CXYVj8CKwo

— David Heath (@davidhth) July 5, 2023

When challenged about the validity of her “pre-enforcement challenge” in the court of public opinion, Smith insisted as recently as last December that she had indeed been asked to create wedding websites for real-life LGBTQ+ couples. We now know that wasn’t true. One of the reasons Smith’s assertions were never challenged could be that the Republican Colorado Attorney General at the time, Cynthia Coffman, was quite generous in this case despite nominally leading the state’s defense against it:

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.

In the end, existence of an actual request for service to justify Lorie Smith’s legal campaign to carve out a safe space in the law to discriminate wasn’t necessary. But the attempt to fabricate a suitable case, first as legal strategy and then PR to make Smith look like less of a publicity-seeking bigot without a valid grievance in TV interviews, raises real questions about why this particular case among the hundreds the Supreme Court is asked to judge each year was chosen to be heard. The U.S. Supreme Court just upheld a case that included fabricated evidence, and there’s no way to spin that positively. The more we learn about this case, the more dubious it looks as the basis of such a momentous rollback of discrimination laws.

For Lorie Smith, the whole case boils down to the simplest of motives: millions of dollars’ worth of free advertising. Whether Smith personally or a member of her legal team fabricated the story of “Stewart” and the “gay wedding website” no one wanted, Smith will never hurt for website business again. If someone with a law license was involved with inventing the hole card Smith didn’t turn out to need, on the other hand, they could have some ethics questions to answer down the road.

And the long arc of the moral universe bending toward justice just got a little bit longer.