Editorial: A 'fake' case leads to bad opinion

  • by BAR Editorial Board
  • Wednesday July 5, 2023
Share this Post:
Web designer Lorie Smith included the name of a man she said asked for a same-sex wedding website, but the man has told multiple media outlets that he's straight, married to a woman, and never contacted her. Photo: AP
Web designer Lorie Smith included the name of a man she said asked for a same-sex wedding website, but the man has told multiple media outlets that he's straight, married to a woman, and never contacted her. Photo: AP

By now it's clear that the six conservative U.S. Supreme Court justices were pranked by one of the most anti-LGBTQ legal organizations in the country. The justices' ruling June 30 in 303 Creative v. Elenis should not have happened because they were duped by the Alliance Defending Freedom and its client, web designer Lorie Smith. In its 6-3 decision, the conservative super-majority of the court sided with Smith and determined she has a First Amendment right to turn away same-sex couples because of her speech associated with creating their wedding sites. It's too soon to say how broadly the case will, in reality, affect same-sex couples, but suffice it to say, it's a concerning development that could open the door to even more anti-LGBTQ decisions in the future.

A significant fact arising out of the case has cast doubt on whether Smith was ever asked to create a wedding site for a same-sex couple in the first place, thus showing she suffered some real conflict, or what is known in legal parlance as standing. On June 29, the day before the opinion was released, New Republic reported that buried in the court papers for the case, Smith had, under oath, said she was contacted by a man named "Stewart" who asked her to create a same-sex wedding site. The problem was that Stewart, whose phone number was in the documents, denied this when contacted by reporters. (Since the New Republic article appeared numerous other outlets have also contacted Stewart, who has declined to share his last name.) You see, Stewart said he is not gay, had never contacted Smith, and has been married to a woman for years. He's also a web designer himself, which begs the question of why he wouldn't just create his own wedding site if he so chose. As we've long suspected with this case, there was never any actual injury to Smith because she was never asked to create a wedding website that would conflict with her religious beliefs.

The Alliance Defending Freedom has had this case on its back burner for years. ADF lost at the lower courts. Only last year did the now thoroughly emboldened conservative justices decide to take it, but on the narrow reading of the First Amendment question. After oral arguments last December, it looked likely that they would rule just how they did, perhaps opening the door to discrimination of same-sex couples, and possibly LGBTQs in general. The justices have long considered themselves above reproach but, as we've seen in recent months, that is now faltering, especially among the conservative ones. Pro Publica has led the way in exposing this hypocrisy, reporting of numerous instances in which Justices Clarence Thomas and Samuel Alito have accepted lavish gifts from conservative friends without disclosing them — and in Alito's case, from a billionaire who had business before the court. Chief Justice John Roberts has said the court can do more regarding ethical conduct, but has offered no specifics — and no consequences for Thomas and Alito's egregious actions. Alito, an angry man if there ever was one, sought to diminish Pro Publica's reporting about his case by preemptively writing an opinion piece for a competing publication, the Wall Street Journal, the night before Pro Publica's story was published. It's been reported that Thomas asked for a delay in filing his more recent financial disclosure forms, as did Alito.

This is the environment in which the court is now operating. It's shameful.

So what about the 303 Creative case? Well, it seems that states like California, which has a strong anti-discrimination law, can apply a relatively easy fix. Writing in the New York Times over the weekend, Aaron Tang, a law professor at UC Davis and a former clerk for Supreme Court Justice Sonia Sotomayor, offered a workaround for states that have such laws on their books. They can amend those laws to permit a business owner, like Smith, to choose between completing the website design or delegating the job out to an independent contractor who will do it. Tang even offers a case whereby that was done. Remember anti-same-sex marriage county clerk Kim Davis in Kentucky? She refused to personally issue same-sex marriage licenses after the Supreme Court's 2015 Obergefell v. Hodges decision legalized such marriages nationwide. She spent time in jail for her refusal to follow the law. But, as Tang wrote, the state eventually came up with a solution: removing the names of county clerks from marriage licenses. That meant that if someone with a moral objection to same-sex marriage didn't want to issue the license, another clerk could do it. "By amending their anti-discrimination laws, states can strike a similar compromise for religious business owners and the gay and lesbian customers they serve," Tang writes.

California lawmakers should take this approach in order to prevent anti-LGBTQ discrimination in public accommodations. (We're already seeing plenty of memes on social media indicating some businesses won't serve MAGA Republicans, for example. While humorous, that misses the point.) Surely, there is a bill in the Legislature this session that can go through the gut and amend process (meaning its subject matter is changed) to incorporate this solution. Much like LGBTQ and many allied lawmakers are gearing up for a 2024 ballot campaign to remove the Proposition 8 language from the California Constitution, because, while Prop 8 was found to be unconstitutional, its anti-same-sex marriage language remains part of the state's governing document. So it looks like the state will need to update its anti-discrimination law. It's clear that the makeup of the U.S. Supreme Court is not going to change anytime soon. With that in mind, it will be up to the states to forge new paths to correct the justices' mistakes, even those that were based on a hoax.

Help keep the Bay Area Reporter going in these tough times. To support local, independent, LGBTQ journalism, consider becoming a BAR member.