Did Erin Hawley, ADF give fake evidence in Lorie Smith case?

Missouri Sen. Josh Hawley (R) with his wife Erin waves to supporters after giving his victory speech at an election watch party Tuesday, Nov. 6, 2018 in Springfield, Mo. (AP Photo/Charlie Riedel)

The conservative Supreme Court ended its term with rulings destroying affirmative action admissions programs in colleges, upholding the right of an evangelical postal worker to skip work on Sundays, and striking down President Joe Biden’s student loan relief plan.

But it is the case of the Christian web designer that is drawing ire over what has been deemed evidence of a “fake” customer request submitted to the Supreme Court.

Lorie Smith, the web-designer plaintiff in the case, sued the state of Colorado to challenge its public accommodation law that prohibits, among other things, discrimination on the basis of sexual orientation. Smith said she would refuse to create a wedding website for a gay couple because she has religious opposition to same-sex marriage.

Conservative advocacy group Alliance Defending Freedom (ADF) — a driving legal voice behind transgender healthcare bans and anti-abortion laws as well as challenges to COVID-19 vaccine mandates, access to medication abortion, and restrictions on conversion “therapy” for LGBTQ+ minors — represented Smith. Erin Morrow Hawley, wife of Missouri Senator and possible QAnon ally Josh Hawley, is Senior Counsel and Vice President of Center for Life & Regulatory Practice with ADF.

When Smith’s complaint was filed on Sept. 20, 2016, it did not indicate that she had been contacted by any gay couple seeking web design services. However, in 2017, Smith filed updated court documents in which she said that she was contacted by a person named “Stewart” on Sept. 21, 2016 — coincidentally, the day after her lawsuit was filed.

Smith signed an affidavit as follows:

On September 21, 2016, I received a request through the “contact” webpage on my website from a person named, “Stewart,” reference number 9741406, to create graphic designs for invitations and other materials for a same-sex wedding (“same-sex wedding request”).

The same-sex wedding request indicated the prospective client may also desire me to create a website for a same-sex wedding.

She also included a copy of the request, which can be viewed below.

image via court documents.

The Supreme Court ruled in favor of Smith on Friday. The day before the opinion was handed down, several media outlets reported that Stewart — who was listed by first name as well as email address and phone number in court documents — said he never submitted any request to Smith’s company. Stewart reportedly said he was surprised by Smith’s use of his information given that he has been “happily married to a woman for the last 15 years,” and that he was a designer who “could design [his] own website” if needed.

Since what Justice Sonia Sotomayor called in her dissent “a sad day in American constitutional law and in the lives of LGBT people,” several attorneys have taken to Twitter to demand that Erin Morrow Hawley be disciplined for submitting “fake” evidence relating to “Stewart’s” website request to the courts.

Colorado’s rules of professional conduct for lawyers demand that a lawyer may not knowingly submit a false statement of fact to a court. Lawyers who violate these rules may be subject to sanctions and other disciplinary proceedings.

Kristen Waggoner, Smith’s attorney, responded to Law & Crime in an email that called the allegations against Hawley and ADF a “desperate attempt to malign ADF, our client, and a critical ruling affirming free speech.” Waggoner said the characterization of “Stewart’s” request as fake “distorts the facts of the case and rests on a flawed view of the law.”

“Lorie Smith received the request at issue, and regardless, a request wasn’t required for the Court to decide her case,” said Waggoner.

Waggoner is correct that the Supreme Court’s decision did not rest on the request of “Stewart” or any other specific individual seeking a wedding website. Rather, the U.S. Court of Appeals for the 10th Circuit found that the designer had standing to bring a pre-enforcement challenge to the statute based on what would likely occur in the future.

The court explained that Smith’s express intentions to violate Colorado’s anti-discrimination statute by refusing web design services to same-sex couples combined with the credible threat that Colorado would respond by prosecuting her when she eventually did so amounted to standing to challenge the statute. The 10th Circuit pointed out that Colorado has a history of prosecuting businesses for violating the statute, as it did in the Masterpiece Cakeshop case, which amounted to a victory for anti-gay Colorado baker Jack Phillips.

Waggoner’s statement to Law&Crime described pre-enforcement challenges as “a hallmark of civil rights strategy that has been used for decades by litigants on the political left and right” and said the veracity of the complaint from “Stewart” is “legally irrelevant.”

“Lorie’s decision to start creating wedding websites — and Colorado’s history of punishing people like Jack Phillips of Masterpiece Cakeshop for declining to celebrate same-sex weddings — gave Lorie more than enough reason to file her pre-enforcement challenge,” Waggoner said. “Receiving a request for a same-sex wedding website was beside the point. In fact, neither the court of appeals nor the Supreme Court mentioned any such request in their opinions.”

Indeed, the 10th Circuit did not mention “Stewart” in its ruling and grounded its logic in the likelihood of legal consequences for Smith once she violated Colorado’s law as predicted. Colorado did not appeal the portion of the ruling that related to standing, and did not argue that it would not prosecute Smith in the future.

Because no argument on standing was before the Court, Justice Neil Gorsuch did not address standing in the ruling other than to recount what happened in the lower court.

Waggoner pushed back on what she described as attacks on her client from “the media” in the days since the revelations regarding “Stewart” emerged.

“[M]any in the media are impugning Lorie’s integrity over the legitimacy of one request,” Waggoner said in her statement. “It’s undisputed that Lorie did in fact receive this request through her website after she filed her lawsuit. To say that Lorie or ADF manufactured it is a lie. Though the media now claims this request wasn’t genuine, Lorie had no reason to doubt its legitimacy.”

Waggoner categorically dismissed criticisms of attorney misconduct as a “manufactured sideshow” and a “tired attempt to punish defenders of free speech for the victory they legitimately won” as a result of the Supreme Court ruling.

“For those who aren’t happy, they should criticize the ruling based on its substance rather than perpetuating falsehoods about the case,” she said.

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Did Erin Hawley, ADF give fake evidence in Lorie Smith case?

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