This “Argument” Is Making The Rounds

Those of you writing up 303 Creative will want to be sure to note that the alleged request was made up.

SCOTUS just ruled on something makebelieve.https://t.co/jiIyDg0TxE

— emptywheel (@emptywheel) June 30, 2023

It took me a moment to realize it was completely wrong.

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. 

The Supreme Court is expected to deliver its opinion in a case in which Stewart plays a minor role, a case that could be, as Justice Sonia Sotomayor stated by way of a question at oral argument in December, “the first time in the Court’s history … [that] a commercial business open to the public, serving the public, that it could refuse to serve a customer based on race, sex, religion, or sexual orientation.” (Update: On Friday, the court ruled 6-3 in the web designer’s favor.) It took just a few minutes to reach him. I assumed at least some reporters over the years had contacted him about his website inquiry to 303 Creative—his contact information wasn’t redacted in the filing. But my call, he said, was “the very first time I’ve heard of it.”

A) assuming arguendo this is true, somebody did some very sloppy work at the trial level, and somebody else failed to check the factual basis of the plaintiff’s complaint. [But, as I finally realized, this is not true. But let me continue with my original argument, so you can go where I went.]

I’d say that was on the trial court, but it isn’t. It’s on the parties. I once spent months on a case working to force an individual plaintiff to reveal the other parties he was representing in the suit. You can’t take any material factual claims for granted, as a lawyer representing a client.

Should the Supremes have known this? No. They don’t review and examine the veracity of the facts of a case; they only review the law as applied to the facts in the record. They can’t review the facts for accuracy, or ask if Mr. Stewart actually made the request that gives this case a legitimate controversy. Which, it turns out, it doesn’t have.

B) Courts are not supposed to issue “advisory opinions.” That, they aren’t supposed to rule on whether something is, say, unconstitutional in the abstract. The question only really arises in the concrete, when there are facts to apply.

C) The other curious thing is, the majority opinion makes no reference to Mr. Stewart’s fictional claim in what is a very brief recital of the facts of the case:

Lorie Smith wants to expand her graphic design business, 303 Creative LLC, to include services for couples seeking wedding websites. But Ms. Smith worries that Colorado will use the Colorado Anti-Discrimination Act to compel her—in violation of the First Amendment—to cre- ate websites celebrating marriages she does not endorse. To clarify her rights, Ms. Smith filed a lawsuit seeking an injunction to prevent the State from forcing her to create websites celebrating marriages that defy her belief that marriage should be reserved to unions between one man and one woman.

Sounds like she sought a declaratory judgment, which is a statutory way of getting an advisory opinion from the court. [But plaintiff sought an injunction, not a judgment.]

But none of this is relevant to the Supreme Court’s decision. There is no mention of it in the majority opinion. The New Republic article points out it was the basis for a publicity campaign by the plaintiff after the trial court ruled. The article makes much of this false story rattling around in the court record. It does, but mostly it is important because NR wants to justify being the only journalist to contact Mr. Stewart. He’s a real person, his phone number was accurately in the record. Scoop! news!

No; not really.

The trial court considered the Stewart story, such as it ever was, and dismissed the so-called Stewart claim as unsubstantiated and unimportant. Yes, it remains in the court record; but no, the Supreme Court didn’t rely on it even in dicta. It was dismissed by the trial court; that dismissed it for the Supreme Court. Had the Court relied on it anyway, that would be a serious problem. As it is, there is no “here,” here.

This opinion can be criticized for its reasoning and results. But it can’t be criticized as improvidently granted. Stick to the facts. Making up more convenient ones does not make a sound argument.

Until & unless Democrats decide to get serious about reining in or expanding the Supreme Court, we’re going to be stuck with a unhinged and unaccountable body that decides cases based on nonexistent standing, verifiably false claims and a view of history so skewed it’s laughable

— David Gardner (@byDavidGardner) June 30, 2023

I mean, I don’t like this Court either; but the solution is not making up reasons to despise it that aren’t true themselves. The view of history is skewed, yes; but welcome to America. We’ve been skewing history from our beginning “Standing” is a legal argument, and should be fought as one. “Verifiably false claims”? If you mean this case, there is only one verifiably false claim. And I’m pretty sure it’s not the one you mean.