The mystery of a small but procedurally significant figure at the center of a landmark religious liberty ruling, 303 Creative LLC v. Elenis could increase scrutiny of the Supreme Court just when the justices begin their summer break. 

303 Creative concerned a Colorado-based graphic designer, Lorie Smith, who wanted to offer her services to couples seeking wedding websites. She was concerned, though, that the Centennial State’s anti-discrimination law would mandate that she work for same-sex couples, a violation of her religious beliefs.

Ms. Smith’s case, therefore, was speculative from the outset. She was concerned not over a specific customer, but rather was worried that she would be in a damaging position if she were to be asked to design a website for a gay couple. All sides agreed that this position was a reasonable one.  

That’s because the Colorado Anti-Discrimination Act prohibits any“public accommodations” from denying “the full and equal enjoyment” of its goods and services to any customer based on his race, creed, disability, sexual orientation, or other enumerated traits. 

Ms. Smith argued that it violated the First Amendment, because it compelled speech, in the guise of website design.  

In a 6-to-3 opinion authored by Justice Neil Gorsuch — who hails from Denver —  the court agreed, finding that Colorado used  “its law to compel an individual to create speech she does not believe.” The court ruled as constitutionally founded Ms. Smith’s fear that the “State will force her to convey messages inconsistent with her belief that marriage should be reserved to unions between one man and one woman.”

Justice Gorsuch writes that the “freedom to think and speak is among our inalienable human rights” and that “by allowing all views to flourish, the framers understood, we may test and improve our own thinking both as individuals and as a Nation.” The majority also found that Ms. Smith’s graphics constituted protected speech. After all, Justice Gorsuch writes, a century ago she “might have furnished her services using pen and paper.” 

Ms. Smith’s counsel, Alliance Defending Freedom — a law firm specializing in religious freedom cases and known as “ADF” — alleged in court filings that the designer was contacted by someone named “Stewart” on September 21, 2016 asking for her help with his wedding to “Mike” “early next year.” The couple expressed interest in “some design work done for our invites.” Ms. Smith filed her suit in federal court the next day.

That case eventually matured into Masterpiece Cakeshop v. Colorado Civil Rights Commission, a precursor to 303 Creative. That case was decided on the basis not of the underlying constitutional question — that would have to wait for 303 Creative — but rather on the fact that the court perceived anti-religious animus on the part of members of the civil rights commission tasked with adjudicating the dispute. 

It appears, though, that “Stewart” is neither gay, nor interested in getting married, because he already is wed. This surfaced when, last week, the New Republic contacted him to discuss the case. His phone number, email address, and a link to his website were included in the filing.

Mr. Stewart, though, appears not to have been the one to furnish that information, or to have been involved at all. He was surprised to find himself mentioned at all, and  told the New Republic that  “I’m married, I have a child — I’m not really sure where that came from? But somebody’s using false information in a Supreme Court filing document.”

“Stewart” added to the Associated Press that he has been “happily married to a woman for the last 15 years” and that as a designer, he “could  design my own website if I need to.” The general counsel and president of ADF, Kristen Waggoner, reasoned that “whether that was a troll and not a genuine request, or it was someone who was looking for that, is really irrelevant to the case.”

Colorado’s attorney general, Phil Weiser, who lost 303 Creative, noted that “our position in this case has been there is no website development happening, there is no business operating. This was a made-up case without the benefit of any real facts or customers.” General Weiser calls it a “made up case.” 

The identity of “Stewart” is threaded into Ms. Smith’s standing,  or ability to sue in court. Usually, a suit only becomes possible after an injury is suffered, and a party seeks redress. Here, though, Ms. Smith sought  to proactively enjoin Colorado from violating her rights, an injury she alleges was inevitable. The high court has ruled that the “threatened enforcement” must be “sufficiently imminent.”

It does not appear, though, as if Ms. Smith’s place in court was tied to or dependent on the elusive “Stewart.” Nor did the trial or any other court appear worried that “Stewart” might be a legal catfish, which is slang for, as Merriam-Webster puts it, “a person who sets up a false personal profile on a social networking site for fraudulent or deceptive purposes.” 

The riders of the Tenth Appeals Circuit, who heard the case below, did not contest Ms. Smith’s ability to sue, and neither did Justice Sonia Sotomayor’s dissent. “Stewart” does not appear at all in the high court’s ruling. Apparently, all agreed on the suit’s viability, if not its disposition. 

This is not the first time the underlying facts of a landmark Supreme Court case have been held in dispute. In a case from 2003, Lawrence v. Texas, the justices ruled that sodomy laws were unconstitutional. Justice Anthony Kennedy, writing for the majority, meditated that “When sexuality finds overt expression in intimate conduct, the conduct can be but one element in a bond that is more enduring.”

While the court found that sodomy laws violated the Due Process Clause of the Fourteenth Amendment, the two men alleged to have engaged in that behavior, John Geddes Lawrence Jr. and Tyron Garner, both denied ever having done so.  Nevertheless, Justice Kennedy wrote that the “State cannot demean their existence or control their destiny by making their private sexual conduct a crime.”

The mystery over the origins of the case known as 303 Creative is only one of the controversies that might dog the Supreme Court justices in the coming months. There is also the conundrum of the at-large leaker who apparently released to a reporter a draft of what became Justice Samuel Alito’s majority opinion in Dobbs v. Jackson Women’s Health Organization.

That’s the case in which the high court concluded that Roe v. Wade had been incorrectly decided. The Supreme Court has indicated its investigation has left it baffled as to the leaker’s identity.

This article has been expanded from the bulldog.