Key document may be fake in LGBTQ+ rights case before US supreme court

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.

The supreme court is expected to issue a ruling on Friday in 303 Creative LLC v Elenis, which deals with a challenge to a Colorado law prohibiting public-serving businesses from discriminating against gay people as well as any statements announcing such a policy.

The suit centers on Lorie Smith, a website designer who does not want to provide her services for gay weddings because of her religious objections.

In 2016, she says, a gay man named Stewart requested her services for help with his upcoming wedding. “We are getting married early next year and would love some design work done for our invites, placenames etc. We might also stretch to a website,” reads a message he apparently sent her through her website.

In court filings, her lawyers produced a copy of the inquiry.

But Stewart, who requested his last name be withheld for privacy, said in an interview with the Guardian that he never sent the message, even though it correctly lists his email address and telephone number. He has also been happily married to a woman for the last 15 years, he said. The news was first reported by the New Republic.

In fact, until he received a call this week from a reporter from the magazine, Stewart said had no idea he was somehow tied up in a case that had made it to the supreme court.

“I can confirm I did not contact 303 Creative about a website,” he said. “It’s fraudulent insomuch as someone is pretending to be me and looking to marry someone called Mike. That’s not me.

“What’s most concerning to me is that this is kind of like the one main piece of evidence that’s been part of this case for the last six-plus years and it’s false,” he added. “Nobody’s checked it. Anybody can pick up the phone, write an email, send a text, to verify whether that was correct information.”

Stewart said he had no idea how his name wound up in the request. He said he is a designer with a fairly sizable following online. The inquiry to Smith sent in 2016 lists his personal website, where he used to have his email and telephone number displayed, so it’s possible a stranger could have collected those to impersonate him.

The existence of an actual request to create service is significant in the case because it helps establish that Smith has suffered some kind of harm and has standing to bring the suit. Last year, lawyers for Colorado urged the justices not to take the case because Smith had not received a request to make a website for a gay couple.

Lawrence Pacheco, a spokesman for Colorado’s attorney general, Philip Weiser, declined to comment on the possibility that the query might be falsified. He pointed out that the attorney general’s office had raised questions about the query in its brief to the supreme court.

“The Company did not respond to that online form. Nor did the Company take any steps to verify that a genuine prospective customer submitted the form,” lawyers wrote.

The Alliance Defending Freedom, the well-funded conservative group that has targeted LGBTQ+ rights in recent years, said in a statement to the Guardian that Smith “had no reason to believe the request to celebrate a same-sex wedding submitted to her website wasn’t a true request”.

“And she knew Colorado could punish her for even communicating that was a message she couldn’t express, so – as with all wedding requests – she did not respond,” the group said.

The revelation of a falsified request may not matter much in a strictly legal sense, said Jenny Pizer, the chief legal officer at Lambda Legal, a group that protects LGBTQ+ rights. The court has signaled recently that potential liability is enough to support a legal challenge, she said.

“The bigger impact might well be on the public’s view of the claims by self-identified Christian business owners who claim they are victims of religious persecution when they are expected to follow the same non-discrimination laws that apply equally to all business owners,” she said. “This sort of revelation tends to reinforce to many people that the fundamentalist Christian victim narrative is without foundation.”

The inquiry from Stewart seems to have appeared at a suspicious point in the litigation, the New Republic noted.

The query was sent on 21 September 2016, a day after the Alliance Defending Freedom filed the lawsuit on Smith’s behalf. In the fall of 2016, Smith’s attorneys originally said that she did not need an actual request for services to challenge the law. But months later, in February of 2017, it referenced the request. Smith signed an affidavit saying she received the message.

In a statement to the Guardian, the Alliance Defending Freedom described the Colorado law as “unconstitutional censorship” and said “[Smith] filed a pre-enforcement lawsuit, a hallmark of civil rights litigation, because no one should have to wait to be punished before challenging an unjust law.”

US district judge Marcia Kreiger dismissed portions of the case in September 2017 and referenced the inquiry. “Assuming that it indicates a market for Plaintiffs’ services, it is not clear that Stewart and Mike are a same-sex couple (as such names can be used by members of both sexes) and it does not explicitly request website services, without which there can be no refusal by Plaintiffs,” she wrote.

ADF attacked that reasoning – pointing to the request from Stewart and Mike – in a press release. The US court of appeals for the 10th circuit also did not rule in Smith’s favor before her case arrived at the supreme court.