Was the 303 Creative decision based on a hypothetical?

“People don’t have to wait for the court to punish them.”

Since the Supreme Court decided the 303 Creative case last week, there has been a lot of pushback from people who don’t like the outcome of the case. Joe Patrice, writing for Above the Law, was typical of the opposition when he wrote that “the Supreme Court ruled that a website designer — who had never even been asked to design a website for a same-sex wedding — could legally discriminate against same-sex couples based on her assertion that she doesn’t want to serve gay people.” Patrice mischaracterizes both the outcome and the facts of the case, but I’ve also seen other people claim that the case was not valid because it was an unconstitutional advisory opinion and based on a hypothetical situation. None of this is accurate.

The first hint of trouble with the case was when a reporter from The New Republic called a man named Stewart who had inquired in 2016 about getting “some design work done for our invites, placenames, etc. We might also stretch to a website.” Stewart had included his phone number, email address, and a website URL with his request, which also mentioned the name of his fiance, Mike.

Photo by Tingey Injury Law Firm on Unsplash

In an article that was published the day before the Court’s decision was handed down, Melissa Gira Grant details how when she called Stewart, whose contact information was not redacted in court documents, he had no idea that he was involved in a Supreme Court case and claimed to have never made the request.

“I wouldn’t want anybody to … make me a wedding website?” Stewart replied, reportedly sounding confused. “I’m married [to a woman], 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.”

To understand how this fits into the context of the case, let’s back up. In 2016, Lorie Smith filed a pre-enforcement challenge against the Colorado Anti-Discrimination Act (CADA). Smith, the owner of a graphic design company, filed suit “because it would require them to provide wedding-website design services to same-sex couples if they began providing those services to opposite-sex couples” and “it would prohibit them from posting a notice on their website advertising that they offer wedding-website services only to opposite-sex couples,” as Colorado’s amicus brief stipulates.

It was during the initial litigation at the federal district court that 303 Creative received the inquiry from Stewart and Mike. Ultimately, the district court ruled against Smith and that ruling was upheld by a federal appeals court before the case was heard by the Supreme Court.

Under the theory propagated by opponents of the decision, 303 Creative’s case should have been dismissed because there was no request for their services for a same-sex wedding and no investigation or enforcement action against the company by Colorado. It has been pointed out that Article III Section 2 of the Constitution, which lists the jurisdiction of federal courts, does not authorize the courts to hear hypothetical cases for advisory opinions. This was confirmed by Chief Justice John Jay in the days of George Washington, who said that the Court required a real case or controversy to issue an opinion.

There are two answers to this argument. First, the Constitution does grant federal courts jurisdiction in cases where a citizen sues a state. That applies in 303 Creative because Smith had filed suit against the State of Colorado seeking an injunction against enforcement of a law that she believed would abridge her First Amendment rights. That case involved a real controversy, not a hypothetical one, since Colorado refused to foreswear prosecution.

Second, 303 Creative was not the first case in which the Courts had considered a pre-enforcement challenge. Cornell Law School points out that litigants can have standing to sue based on potential future injuries. Courts can rely on a history of past enforcement for similar offenses, the likelihood of a complaint, and the fact that enforcement would be a burden to political speech.

And there was a history of prior enforcement in Colorado for similar reasons. Five years ago, the Supreme Court ruled against Colorado in Masterpiece Cake Shop v. Colorado Civil Rights Commission. The facts here were very similar to the potential future injury that Smith sought to avoid. A Colorado baker was sued when he refused to bake a wedding cake for a same-sex wedding. Considering this, Grant’s assertion in New Republic that Smith’s “entire case, after all, is built around the idea of gay people doing something that they have not yet done, nor ever will do” seems disingenuous.

But these arguments are mooted because Smith had the inquiry from Stewart, which created a real possibility of prosecution. At this point, it does seem that the inquiry was a hoax, but could Smith have known that at the time?

The assumption by the opposition is that the inquiry was created by the Alliance Defending Freedom, a legal organization that aided Smith in her case. I agree that this is plausible, but it is also unproven.

National Review gives the other side of the story as it reports on a press call by Kristin Waggoner, CEO and general counsel at ADF. Waggoner said that it was “undisputed” that Stewart’s request was received but that there was no way to determine whether it was from “a third party or a troll.”

ADF attorney Jonathan Scruggs went on to explain that Smith would have put herself in legal jeopardy if she had responded to the inquiry, saying, “If she had declined a request, or sent out an email saying ‘hey, I don’t create websites for same-sex weddings, she would have violated the law. It puts her at extreme risk to go and interrogate somebody for these requests. The whole reason she filed the lawsuit is to get clarity.”

“A request isn’t even needed for the court to address this issue,” Waggoner said. “People don’t have to wait for the court to punish them.”

“That’s why the Supreme Court never mentioned or relied on the request, neither did the Tenth Circuit, neither have numerous courts all across the country that have heard similar challenges without requests,” Scruggs added. “It’s kind of a nothing burger and smacks of desperation.”

There are penalties for submitting false documents in federal court, but again, this would require evidence that 303 Creative’s lawyers knew that the inquiry was fraudulent. I’m not sure that they did, even though the circumstances were convenient.

Setting up test cases to challenge laws is not uncommon. During the Civil Rights Era, it was not uncommon for groups to recruit people to engage in civil disobedience to create cases that could result in unconstitutional laws being stuck down. For example, Homer Plessy of the landmark case, Plessy v. Ferguson, was recruited as a sympathetic figure to challenge separate-but-equal laws.

If the ADF wanted to create an enforcement case, it would not have been impossible to find someone to file a complaint against 303 Creative and such a strategy would not risk ADF lawyers being sanctioned by the courts if their subterfuge became public. For that matter, if ADF was going to create an illicit request, it would have been smarter to use fake contact information that could not be traced.

Going back to Joe Patrice’s criticism, I want to point out once against that 303 Creative was not a case about refusing service to gay people. Both Lorie Smith and Jack Phillips of Masterpiece Cake Shop were willing to conduct business with homosexual customers, but neither wanted to accept orders that were related to same-sex weddings. The cases were about products that Colorado sought to compel them to create rather than being about discrimination against a segment of the population. This is an important distinction that is often missed.

I have two questions for those who raise objections to the case based on the revelations about Stewart. First, if the inquiry was so integral to Smith’s case, why did no lawyer for the defense ever try to disprove its validity by contacting Stewart? Lawyers with that level of incompetence seldom make it to the Supreme Court.

Second, why did judges at three different federal courts not toss the case for lack of standing if there was no valid complaint? Here, it’s important to note that judges at the lower courts were not sympathetic to Smith, ruling against her on the merits both times but accepting her standing to file suit.

I’m very curious about the origin of Stewart’s alleged request for wedding materials, but ultimately, whether it was a hoax does not make a difference. That’s probably why no one from the defense team bothered to contact him and the apparent fraud was not discovered until after the Supreme Court had heard the case and one day before the decision was handed down. It’s also probably why you won’t find Stewart and Mike’s names anywhere in the Supreme Court decision whether you look in the opinion, the concurrence, or the dissent. It just is not a relevant fact.

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