While not quite as momentous, attention-grabbing or as replete with historical meaning as the ruling in the affirmative action case, the U.S. Supreme Court also recently ruled in 303 Creative v. Elenis (a case I discussed previously). This was a case brought by Lorie Smith, a Christian website designer who has religious objections to designing custom websites for gay weddings, and who didn’t want to be forced by Colorado to do so. It’s a clear free speech issue: should anyone be forced to write an article, design a website or create a piece of art when they object to the message they’re being asked to convey in that article, website or artwork? Free speech advocates say “Hell no!”, while their critics (including the ACLU) characterise any objection as being tantamount to wanting to bring back “Jim Crow” laws or some such horror.
Justice Gorsuch delivered the opinion of the court in what was, as predicted, a 6–3 split along “party lines” in favour of Lorie Smith. His reasoning is lucid, compelling and succinct, and once he’d finished laying down the law, he laid into the confused and laborious dissent of Justice Sotomayor with devastating precision. One passage highlights the sheer absurdity of the left’s tangled position on this:
In some places, the dissent gets so turned around about the facts that it opens fire on its own position. For instance: While stressing that a Colorado company cannot refuse “the full and equal enjoyment of [its] services” based on a customer’s protected status, the dissent assures us that a company selling creative services “to the public” does have a right “to decide what messages to include or not to include”. But if that is true, what are we even debating? [Internal references omitted.]
There’s plenty more for the interested reader to enjoy, but looking at it more broadly, this is one of several recent rulings that seem to show the Roberts court has largely regained its sanity after a difficult period where politics seemed to overtake it. But of course, in the eyes of Democrats, the court has become illegitimate because of an “illicit rightwing” majority (illicit how?).
In fact, there have been ongoing attacks on the court and its members since the Dobbs abortion case came before it, with top Democrat Senator Chuck Schumer getting the ball rolling by apparently threatening Justices Kavanaugh and Gorsuch, leading to a rebuke from Chief Justice Roberts. There followed the leaking of the majority opinion in Dobbs (and while we don’t know who did it, Justice Alito thinks he does), followed by numerous threats (including death and arson threats) from members of the public, after which the six conservative justices were doxxed online – leading to angry protests outside their houses, and concerns for their safety.
There have also been political attacks targeting Justices Thomas and Alito, trying (and failing) to catch them out on financial interest disclosures, and even suggesting Thomas’s wife’s legal consulting firm creates some vague conflict of interest. Perhaps they think Thomas and the others will change their legal reasoning because of threats against the court – based on an assumption that it’s all about politics and not the law? To be fair, this did happen when FDR threatened to pack the court (there’s no constitutional or statutory limit on the numbers of justices) if it didn’t sign off on the New Deal, and while Chief Justice Roberts appears to blow with the political wind, I rather doubt that of Thomas (smeared in his confirmation hearing but defiant) and Kavanaugh (ditto), at least. In fact, nothing seems to have moved the conservative justices into strange non-legal/political directions – as with Roberts in the Obamacare decision.
But maybe in 303 Creative, the activists have been up to something a bit more sneaky than these more overt attacks. You see, despite not being quite as alarming to the woke left as the end of affirmative action in universities, the outcome of this case is seen as a setback for their view of civil rights, and could be used to help overturn other “compelled speech” in the form of the mandatory use of “preferred pronouns” in the workplace, or potentially in any case where the wokerati want to force U.S. citizens to pay lip service to their version of reality. In other words, there’s considerable animus about this – which, in any case, we already knew because of the treatment meted out to the owner of Masterpiece Cakeshop, an almost identical case that ended up being decided on narrow technical grounds.
With all this in mind, I have a few questions about Melissa Gira Grant’s reporting in the New Republic of the fact that a document submitted by Lorie Smith to the court when the case was still at the federal district court is apparently inaccurate. Her story dropped just a day before the Supreme Court published its ruling, and was picked up almost immediately by the Guardian here in the U.K., with their U.S.-based court-watcher Sam Levine stating breathlessly:
The veracity of a key document in a major LGBTQ+ rights case before the US supreme court has come under question, raising the possibility that important evidence cited in it might be wrong or even falsified.
Typical responses on Twitter are that the entire case should be cancelled, or thrown out, or reversed, or something. Grant followed up the next day, when the ruling came out, with a piece beginning:
If the Supreme Court persists in making rulings based on fiction, how can we take any ruling seriously?
This must be a big deal, then?
No.
But first, some facts. This supposedly “key” document is a record of a request put in to Lorie Smith’s website, purportedly by a gay couple named Stewart and Mike who wanted Lorie Smith to do some design work for their wedding, including invites, placenames and possibly a website – exactly the sort of thing that Lorie Smith would have to decline, and in fact couldn’t even respond to without potentially facing immediate action from the Colorado authorities. Notably, this request via Lorie Smith’s website arrived just a day after she filed her original case in federal district court (i.e., when it became public), and is similar to the kinds of insincere requests made of Masterpiece Cakeshop that sparked that case.
However, as Melissa Gira Grant reported, the contact details given in this request were actually those of a San Francisco man who is happily married – to a woman – and who has a child (already a strong case of the notgays), and who is not planning on marrying anyone else, let alone anyone named Mike, and who was rather bemused to find out a few days ago that his name had turned up in court filings. He had no knowledge of the request: it was bogus. Yet Lorie Smith’s lawyers had used it in the district court to rebut claims that she would never be likely to receive a request to do creative work for a gay wedding (she brought this action before receiving any such requests, in anticipation of the same).
That’s all true, as far as we know, but here’s why there’s no scandal:
The first issue is that Lorie Smith and her lawyers couldn’t have known it was bogus – they had to avoid contact with this “Stewart and Mike” because any conversation could have ended up eliciting an admission that she was refusing them her custom services, which Colorado could have found out about, leading them to apply penalties and force her to attend a re-education camp. She wanted to avoid that.
Secondly, Smith and her lawyers didn’t have much incentive to create a false request in this way: her case was always based on her own intended course of conduct – which would include a statement on her website saying she wouldn’t do gay weddings – that’s prohibited by state law and which could therefore lead to Colorado taking enforcement action. It was a “pre-enforcement” lawsuit, and didn’t require that any gay wedding requests had been received, or even that they necessarily would. So if Smith wanted to fake such a request, she ought to have done so before filing her original case, and then used different legal arguments.
Thirdly, Smith and her lawyers were apparently unaware of this request during a period in which it might have been useful to them. The defence argued in district court, a month after the case began, that it should be dismissed because Smith hadn’t actually received a request for a gay wedding. Her team responded to that without citing the “Stewart and Mike” request, and it only turned up in a filing months later.
Fourthly, and most importantly, it doesn’t matter to the case. In fact, the district court (which does the fact-finding in these cases) rejected the notion that it was even a genuine gay wedding request anyway, claiming that “Stewart” and “Mike” could be girls’ names (yes, really) and so it wasn’t necessarily from a gay couple at all. The appellate court, with that fact, decided the key issue of standing on Lorie Smith’s “intended course of conduct” and her “credible fear of prosecution”, and the Supreme Court’s opinion didn’t refer to it, even obliquely, in any way. None of the legal reasoning depends on it at all. It simply doesn’t matter.
But this didn’t stop Melissa Gira Grant from claiming that “the plaintiff’s main argument rested on the claim that someday, out there, a same-sex couple would want her to design a wedding website” and that this is something gay people “have not yet done, nor ever will do”. This is not only false, it’s gaslighting. We know what happens to the sorts of businesses that are openly against gay marriage – they immediately get targeted by activists (and in fact, Lorie Smith has since received other, similar requests). But the case would stand regardless of whether that ever happened or not. Any suggestion to the contrary is disingenuous at best. It does not, as Sam Levine claims in the Guardian, undermine her standing to bring the suit, so it’s very sad that it’s being used to delegitimise the ruling (and the court), offering the chief legal officer of Lambda Legal, an “LGBTQ+” rights organisation, some cover to make statements like this:
This sort of revelation tends to reinforce to many people that the fundamentalist [!] Christian victim narrative is without foundation.
This is a classic case of The Law of Merited Impossibility, although the overall situation is also an example of Young’s Law (you’re welcome, Toby!).
Anyway, I said I had some questions about Melissa Gira Grant’s reporting of all this, which has got lefties all lathered up and looking foolish – including the former US Acting Solicitor General. The fact that the bogus request arrived the day after the original district court case was filed, and that the story about its bogosity appeared the day before the Supreme Court ruling, and the fact this has been misused to undermine that ruling, all seems a bit fishy. To be clear, I have no evidence that Ms Grant has done anything wrong, but I’m curious about her statement: “This week, I decided to call Stewart and ask him about his inquiry.”
I’m curious about it, because she doesn’t say why she decided to wade through court documents to look for Stewart’s phone number and give him a ring all of a sudden, and at this juncture. She seems to have been aware that it had been dismissed as irrelevant by the district court, so it seems like an odd thing to do. Did she receive a tip-off? Such things happen. During Covid, I received a message in my Daily Sceptic email account from an unknown person asking me to call a certain telephone number at a certain time. Intrigued, I did so, and found myself in a secret high-level military conference call, the precise details of which I can’t reveal because even members of the public are bound by the Official Secrets Act – although it seemed very boring and I didn’t really know what they were talking about.
The point is, there might be more to this. We know that Lorie Smith and her team couldn’t have contacted Stewart without some risk, but there’s no reason someone else – someone on the other side, perhaps – couldn’t have. Or maybe some internet sleuthing revealed who Stewart really was, some considerable time ago. “Who knew what, when?” – that would be another interesting question.
Stop Press: The Washington Post, in a somewhat sensible discussion of the topic, reports that Stewart is an LGBTQ activist who was working for the Clinton campaign when the bogus request was made to Lorie Smith in 2016. As noted, he has denied making the request.
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