This series of posts by Prof. Richard Re (Virginia) is based on his draft article, "Does the Discourse on 303 Creative Portend a Standing Realignment," which is forthcoming in the Notre Dame Law Review Reflection.
One of the most salient indictments of 303 Creative v. Elenis concerned allegedly false facts that supposedly undergirded the case. This post turns to those factual issues. Here's an excerpt from my paper:
Shortly after initiating suit, the designer [plaintiff Lorie Smith] supposedly received a terse request for web services in connection with a same-sex wedding. This asserted fact featured in the designer's briefing throughout the case. Why? Because it is very hard to view such requests as speculative if one has already taken place. Thus, this supposed fact tended to buttress the designer's claim of standing. Yet the district court doubted the significance of the asserted fact, and neither the Court of Appeals nor the Supreme Court explicitly mentioned it at all.
On the eve of the Supreme Court's decision, Melissa Gira Grant of The New Republic broke the news that she had contacted the individual who had supposedly made the request, and he denied doing so. This report was later confirmed. By then, the Supreme Court had issued its decision without commenting on the matter. And Grant's story had set off a firestorm.
Some reactions to Grant's story reveal an assumption that the attorneys in 303 Creative fabricated the apparently bogus request to help their case. Other commentators, however, have expressed doubt on that point, at least until specific proof comes to light. Clearly, any attempt to fabricate evidence—particularly by an attorney—would constitute unethical behavior.
