The Smearing of Lorie Smith
Editor’s note: The following piece originally appeared at The Wall Street Journal.
The permanent political campaign against the Supreme Court has expanded to target successful litigants. Last month the justices ruled in favor of our client Lorie Smith in 303 Creative v. Elenis, a landmark victory for free speech. Although this ruling benefits people across the ideological spectrum, some on the left—including many in the press—have responded with a disinformation effort against Ms. Smith.
Ms. Smith, who runs a firm that designs websites, conscientiously objects to same-sex marriage. The state of Colorado claimed that its public-accommodation laws compelled her to design sites celebrating gay weddings if she creates sites celebrating other weddings. On June 29, the day before the ruling, the New Republic published a piece with the nefarious-sounding headline “The Mysterious Case of the Fake Gay Marriage Website, the Real Straight Man, and the Supreme Court.”
The writer, Melissa Gira Grant, contacted a man named Stewart, whose first name and phone number appeared on an email request Ms. Smith received in 2016 to design a website for his purported wedding to a man named Mike. When Ms. Grant asked Stewart about the request, he said it was “the very first time I’d heard of it.” He also said he’s married to a woman.
The media pounced. The Associated Press spread the story around the world in a dispatch headlined “Legitimacy of ‘customer’ in Supreme Court gay rights case raises ethical, legal flags.” Neal Katyal, a former acting U.S. solicitor general, opined on MSNBC that 303 Creative was a “fake case” because there was “no controversy” and urged the state to petition the high court “to seek rehearing and to get this decision stricken from the books.”
This is nonsense, and Mr. Katyal should know better. It’s undisputed and electronic records confirm that Ms. Smith received the request from a third party in September 2016—the day after she filed her lawsuit. A party has to have legal standing when he files a case, so it would make no sense to invent such claims the day after the suit began. Though the request appears to have come from a troll, perhaps falsely using Stewart’s name and number, that doesn’t change the fact that Ms. Smith received it.
At a June 30 press conference, Colorado Attorney General Phil Weiser also claimed there was no controversy. “Our position in this case has been there is no website development happening, there is no business operating,” he said. “This was a made-up case without the benefit of any real facts or customers. The Supreme Court in our view should never have decided this case or address the merits without any basis in reality.”
But that wasn’t the position the state took in court. Throughout litigation, Colorado stipulated that its law applied to Ms. Smith’s business and that she would be subjected to punishment if she followed her beliefs in deciding which wedding websites to create. There was no basis for the justices or lower appellate courts to question the facts that both parties had stipulated. As the Supreme Court explained, the state could have avoided the case by disavowing enforcement, but it never did. That means there was a real dispute.
Ms. Smith filed a pre-enforcement lawsuit—a legal challenge people bring before they are punished by the government. Such suits have been staples of civil-liberties litigation for over 100 years. One famous case involved Richard Steffel, who wished to distribute handbills protesting American involvement in the Vietnam War on a sidewalk outside the North Dekalb Shopping Center. Georgia’s criminal trespass law prevented him from doing so, and he sued. The state complained that the suit was improper because he had never been charged. In Steffel v. Thompson (1974), Justice William Brennan wrote for the court: “It is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights.”
To establish standing, Ms. Smith simply had to show that she faced a “credible threat” of enforcement. The state’s aggressive and repeated pursuit of Masterpiece Cakeshop’s Jack Phillips—even after the high court ruled in his favor in 2018—confirmed that threat.
Every one of the 12 appellate judges who heard the case agreed that Ms. Smith had standing, and none of their opinions even considered whether she received a request for a same-sex wedding website. Contrary to Mr. Weiser’s claim of a “fake case,” his office stipulated all the facts in the case, including that Ms. Smith and 303 Creative have been regularly providing graphic and website-design services to the public.
Colorado also criticizes Ms. Smith for failing to verify the 2016 request—while admitting it never did either. But there are good reasons why she didn’t. Efforts to engage with the requester would have risked exposing her to punishment under Colorado’s law. That’s what happened to Jack Phillips when he responded to a request for a “gender transition” cake.
Lorie Smith is part of a long line of litigants who prevailed on their claims and secured liberty for themselves and others. Her case marks the 15th victory that Alliance Defending Freedom has won at the Supreme Court in the past 12 years. The manufactured sideshow about one request Ms. Smith received is an attempt to punish defenders of free speech, undermine a landmark victory and intimidate the Supreme Court and the public into ideological conformity.
