The legitimacy of the “client” in the Supreme Court gay rights case raises ethical and legal concerns

A Christian graphic artist who The Supreme Court said it could decline Creating wedding websites for gay couples, her lawsuit cited an application from a man named “Stewart” and his future husband. The turn? Stewart says it never happened.

The revelation has raised questions as to how Lorie Smith’s case, with such blatant misrepresentation, could make it all the way to the country’s highest court and whether the state of Colorado, which lost the case last week, has any legal recourse.

It served as another distraction at the end of a highly divisive Supreme Court tenure marred by ethical issues and contested decisions along ideological lines rejected positive action in higher education and with President Joe Biden $400 billion plan to cancel or reduce federal student loan debt.

Here’s a look at the legal issues surrounding the mysterious prospect “Stewart”:

About a month after conservative rights group Alliance Defending Freedom filed the case in federal court in Colorado in 2016, state attorneys said the case should be dismissed in part because Smith was not harmed by the state’s antidiscrimination law. Smith — who had no plans to begin creating wedding websites until her case was resolved — would first have to seek and deny an application from a gay couple, potentially sparking a complaint against her, the state argued.

Smith’s attorneys claimed that she did not need to be punished for breaking the law before she could take action. In a February 2017 filing, they revealed that while she didn’t need an application to continue the case, she had actually received one. An attachment to the filing contained a website application form that Stewart filed on September 21, 2016, a few days after the lawsuit was filed. It also included an affidavit from Smith dated February 1, 2017, showing that Stewart’s application had been received.

Two documents Smith filed with the Supreme Court briefly mention that she had received at least one request to create a website to celebrate a same-sex marriage, without elaborating.

The request said Stewart and his fiancé Mike were looking for design work for things like invitations and place cards for their upcoming nuptials. “We could also expand to a website,” the form said.

Colorado attorneys wrote in their August Supreme Court brief that it was not an actual request for a website and the company had taken no steps to verify that a “genuine prospect submitted the form.” It’s not clear if the state took steps to verify Stewart – whose contact information was included in court records – was a genuine prospect.

Stewart told The Associated Press last week that he didn’t even know his name was on the case until he was contacted by a New Republic reporter, who first reported his rejection. Stewart, who declined to give his last name for fear of harassment and threats, said he was incredibly surprised, adding that he had been married to a woman for 15 years.

It’s highly unlikely. The prospect’s claim was not the basis of Smith’s original lawsuit, nor was it cited by the Supreme Court as the reason for ruling in her favor. Standing, or the right to bring an action, generally requires that the person filing the case demonstrates that they have suffered harm. But pre-enforcement challenges — like the one Smith filed — are allowed in certain cases if the person can show they credibly face criminal prosecution or sanctions unless they comply with the law.

The 10th Circuit Court of Appeals, which reviewed the case before the Supreme Court, concluded that Smith had standing. The appeals court found that Colorado had a history of penalties for “nearly identical conduct” and that the state declined to promise not to prosecute Smith if she broke the law.

“If there are other places to sue, I don’t think it makes any legal difference,” said Jessica Levinson, a professor at Loyola Law School.

However, it could have impacted the case by undermining the credibility of Smith’s legal team, potentially leading the judge to be more skeptical about anything else they filed, Levinson said. It could also lead to possible sanctions against Smith’s legal team if it was found they knew Stewart’s application was wrong, Levinson said.

Although the revelation can’t change the decision, “it’s something that should have been brought up in the litigation,” said Erwin Chemerinsky, the dean of Berkeley Law, “because then the court should have said that we doubt it, we.” .” If we can’t resolve the issue, we’ll send it back to the federal district court.”

Kristen Waggoner — the president of Alliance Defending Freedom, which represented the case before the Supreme Court — said her client has no ability to conduct background checks on those applying for deals, nor is it her responsibility to do so. On Monday, Waggoner slammed the suggestion that her client fabricated the request, adding that “the more likely scenario” is that “‘Stewart’ or another activist actually submitted the request.”

“To say that Lorie Smith or ADF made up a request for a same-sex wedding website is a lie,” she said in an emailed statement. “It wouldn’t make sense to fabricate an application as that wasn’t necessary for the court’s decision on her case.”

Such a mistake — particularly at the Supreme Court level — is highly unusual, legal experts say.

“Assuming the allegation that this was factually inaccurate is true… I’ve never seen anything so obvious before,” said Adam Feldman, who follows the court as the inventor of the Empirical SCOTUS blog.

However, lawyers had to withdraw statements previously made in court.

The Attorney General, who represents the government before the Supreme Court, apologized in a court case earlier this year for an “inaccurate testimony” made in court during the hearing of a 2017 patent case. Attorney General Elizabeth Prelogar wrote that the attorney received incorrect information from the United States Patent and Trademark Office, adding, “We regret any misconception inadvertently created by the response provided.”

The court also incorporated errors into its own judgments. In 2017 ProPublica published a review of several dozen cases in which they found several “false or totally unsubstantiated statements of fact”. These included an error in the Shelby County v. Holder case that overturned part of the Voting Rights Act. The publication reported that Chief Justice John Roberts used incorrect data when comparing black and white voter registrations in certain states.

Associated Press reporter Jesse Bedayn contributed from Denver.