On Fraud, Standing, and “Stewart and Mike” Not Getting Their Day in Court

photo by John Brighenti from Rockville, MD, United States, CC BY 2.0 <https://creativecommons.org/licenses/by/2.0>, via Wikimedia Commons

Last week was a big one in the world of the Supreme Court. I should write up a ‘splainer about one or two of those cases… and I still may… but they are quite complex and nuanced and in some cases quite long and my brain feels like it is on permanent vacation these days. Instead, I’ll explain why the allegedly non-existent request for a gay wedding website is not going to invalidate 303 Creative LLC v Elenis.

A quick TL:DR on the case: a website designer named Lorie Smith out in Colorado asked for a pre-enforcement injunction protecting her from the enforcement of the state of Colorado’s Anti-Discrimination Act (CADA), should she refuse to create a website to promote the wedding of a same-sex couple. She won her case. Soon thereafter, some sleuthing suggested that no one had ever asked her to do any such thing.

Cue “Fraud on the Court!” “Lock her up!” etc.

It certainly is bad to make false representations to a court. But will it matter here? Short answer: no.

Long answer:

At the time Smith filed her initial complaint for injunction, she did not claim to have received any requesst for her services to create a same-sex wedding website. The entire crux of her case was that she could at any time, and that turning such a request down would subject her to a complaint under the CADA. Lo and behold, the day after filing her lawsuit, Smith says a request did come in via her business’s email, in which a “Stewart” allegedly asked about a website being made for his wedding to “Mike.” This development was apparently included as part of a subsequent filing as the case made its way through the courts.

When the case was ultimately adjudicated in the Tenth Circuit Court of Appeals, who did not find in Smith’s favor, the opinion made no mention of the alleged request. Its holding was based on the potential of Ms. Smith to receive such a request and find herself the subject of a CADA complaint. When SCOTUS reversed the Tenth Circuit, they likewise couched their opinion in the potential for enforcement without any mention of a specific pending request.

In her lawsuit, Ms. Smith alleged that, if she enters the wedding website business to celebrate marriages she does endorse, she faces a credible threat that Colorado will seek to use CADA to compel her to create websites celebrating marriages she does not endorse. 6 F. 4th 1160, 1173–1174 (CA10 2021). As evidence, Ms. Smith pointed to Colorado’s record of past enforcement actions under CADA, including one that worked its way to this Court five years ago.

The opinion goes on to recite a list of stipulated facts upon which its holding relied; the supposed request of Stewart and Mike was not among those facts.

So no, the discovery that “Stewart and Mike” had never made the request is not going to change a thing about the legal posture of the case. It is done. However, for fullness of discussion, it is worth noting that a lawyer who knowingly makes false representations to a Court – or who fails to do even a cursory investigation to verify the veracity of a claim – subjects themselves to a variety of unpleasantness, including significant discipline by his or her state bar. Of course, if the fact is salient to their case, its provable falsity can also lead to a dismissal. As discussed above, it does not appear to be salient.

Can we, then, expect sanctions on the lawyers who included the apparently untrue assertion in a pleading in the lower courts? I think probably not.

From what I can gather, Ms. Smith produced to her attorneys an email from “Stewart” as purported. The lawyers took it at face value and included it with a court filing, without following up with “Stewart”, even though a phone number was included in the email, by which reporters in recent days have been able to reach him. Someone is not telling the truth, but at this point it is hard to tell who. Did Lorie Smith or her lawyers fabricate an email to her business? Did Stewart send the email to stir up trouble and is now denying it? Did some other third party pretend to be Stewart and send a phony email?

We don’t know. At worst, we can say Smith’s lawyers could have done more to authenticate, but since their case did not rely on the existence of the request, the fact that they didn’t probably does not amount to much. Lawyers often rely on the representations made by a client when filing pleadings. They do so by including a verification signed by the client, in which the client swears the facts presented are true and accurate to the best of their knowledge.

Giving the benefit of the doubt to Lorie Smith, let’s posit that she did in fact receive this email and did not respond for various legal and strategic reasons. Remember that she brought this case to avoid a potential CADA complaint brought against her. If she had responded and declined the request, that could have put her in the very position she sought to avoid. Not responding to or contacting the inquiring customer is advice I would have likely given her.

So she shows this email to her lawyers. They could have vetted the sender, and if the email made up the crux of the complaint rather than simply being a supportive example of the potential “harm” their client could face, they probably would have. Instead, it was represented to the court after the fact as an incidental supporting document. On the other hand, if for example the argument they faced was someone saying “nobody will ever ask Lorie Smith to make a gay wedding website for them”, the veracity of this email becomes much more substantive. But that’s not the argument here.

Standing is a salient issue in this case – whether Smith had a case or controversy ripe for the courts to hear. There are legitimate arguments that she did not. But this email was never invoked as a basis for the standing she claimed and was found to have, and its apparent falsity seems irrelevant to the analysis of either the Tenth Circuit or of the Supreme Court.

This case is controversial; I am not getting into my opinion of the ruling one way or the other. It is understandable that those who found this ruling a slap in the face are angry to learn of the apparently fake request for Smith to perform the work. But whether a request existed or not has no bearing on the ruling the Court ultimately handed down. A case could be made to punish the lawyers who failed to do due diligence before presenting it to the Court, but it is not so egregious that they could expect much more than a hand smack, at best.

Personally, I doubt that any law enforcement agency would be inclined to investigate whether Lorie Smith fabricated the email, which I find unlikely. It makes no sense that she would do so after filing her lawsuit rather than before. And it seems unnecessary, when chances are she would have eventually received a request anyway (ask the Masterpiece Cakeshop guy, who received many requests for customized same-sex wedding cakes when word got around about his stance of not doing them.) She’d also have to be an extraordinarily dumb criminal to use a real person’s name, email, and phone number, when that info could have been, and was, so easily followed up on.

There is plenty to debate about the Supreme Court’s decision in this case, but the mysterious fabricated email is much ado about nothing.