Appellate lawyer Adam Unikowsky has written a very long (nearly 6000-word) post—the first of two, he tells us—arguing that the Supreme Court should never have heard granted certiorari in 303 Creative v. Elenis.
I’m going to try to succinctly address those parts of his post that bear on the astounding controversy over the sham request that Lorie Smith received asking her to create a wedding website for a same-sex couple. (See my three previous posts for background.)
Two preliminary points:
First: Unikowsky’s law firm, Jenner & Block, submitted an amicus brief in the Supreme Court in support of the Colorado state defendants. I am surprised that Unikowsky does not disclose this fact (as he similarly did not do in a post of his on the abortion-pill case that received a lot of attention).
I hasten to add that I am not questioning Unikowsky’s integrity at all, and his arguments stand or fall on their own merits. But could Unikowsky have published his post if it reached conclusions adverse to his firm’s amicus client? And can he himself be certain that some of his judgments on matters that by his own account appear close (e.g., “A standing dove would say there’s standing, a standing hawk would say there isn’t”) weren’t influenced by his firm’s relationship or by his own desire to publish?
Second: To his credit, Unikowsky emphatically rejects the claim that has dominated attention so far—i.e., that Smith or her lawyers might have concocted the request. He writes:
There is no evidence whatsoever that either 303 Creative or ADF (its counsel) fabricated the fake request. The allegation makes no sense. Why fabricate the request after, rather than before, the complaint is filed? And why make the fraud so easy to detect?
Let me turn now to a couple of large points that I think Unikowsky gets wrong:
1. Unikowsky argues that 303 Creative’s standing “depends on the speculative possibility that a same-sex couple will: (a) ask 303 Creative to make a wedding website, (b) figure out it’s being discriminated against, and (c) rat 303 Creative out.”
In making this argument, Unikowsky isolates the so-called Accommodations Clause of Colorado’s Anti-Discrimination Act (CADA) from its Communications Clause. The Accommodation Clause bars a public business from refusing service on various grounds, including sexual orientation. The Communications Clause bars a public business from displaying a communication that would indicate that a person’s patronage is unwelcome or objectionable on any of those same grounds.
For Smith and 303 Creative, these prohibitions operate together. As she alleged in her complaint, she “desires to explain her religious beliefs about marriage on her website and in communications with prospective clients, including why those beliefs prevent her from designing websites celebrating and promoting same-sex weddings.” Such a communication would subject her to investigation and prosecution by state authorities, irrespective whether any customer would ask her to create a same-sex website. What’s more, as the Tenth Circuit panel that ruled against Smith on the merits sensibly determined, such a communication would predictably generate requests for same-sex wedding websites, followed by complaints to state authorities.
Unikowsky treats Smith’s Communications Clause challenge as a “digression” and contends that Smith’s desire to post a statement of her religious beliefs about marriage provide “an excellent illustration of how this is a fake case.” In his view, no one “trying to make a living” designing wedding websites would make such a statement. Instead, someone holding Smith’s beliefs of marriage should “just politely decline in the unlikely event that a same-sex couple seeks [her] services.” The “obvious answer” why she instead proposed to make a statement is “in order to manufacture standing.”
I don’t know why Unikowsky so breezily dismisses the possibility that a religious believer, in “trying to make a living,” might make sacrifices to abide by her beliefs and that she might find unappealing the course of deception (“just politely decline”) that he proposes. The parties in fact stipulated that Smith had a “sincerely held religious belief that [she] must be honest and transparent about the services that [she] can and cannot provide.”
Unikowsky’s claim that Smith would be improperly “manufactur[ing] standing” also appears to be mistaken. Just a year ago, in FEC v. Ted Cruz for Senate, the Court rejected the government’s argument that plaintiffs “lack standing because their injuries were self-inflicted”:
We have never recognized a rule of this kind under Article III. To the contrary, we have made clear that an injury resulting from the application or threatened application of an unlawful enactment remains fairly traceable to such application, even if the injury could be described in some sense as willingly incurred.
2. Unikowsky thinks it significant that Smith informed the district court that she “has not responded to the request [from “Stewart” for a same-sex wedding website] because she is not currently creating custom wedding websites solely because of CADA”:
In other words, 303 Creative wasn’t offering wedding services to anyone and hence wasn’t discriminating. So doing some diligence on “Stewart” wouldn’t put them at “extreme risk.”
He suggests that Smith’s statement undermines her attorney’s recent explanation that “had she responded [to the request], she would have risked potential punishment by Colorado, which would have undermined the very purpose for her pre-enforcement suit.”
But in her district-court brief, Smith immediately followed the statement that Unikowsky quotes with this passage, which Unikowsky does not quote or acknowledge:
However, the request highlights her need for relief from this Court. If she were in the wedding industry, that request would have placed Lorie in the impossible position of choosing between compliance with CADA and exercising her fundamental rights. In addition to lifting the unlawful chill on her speech, that is the impossible choice she seeks to avoid by filing this pre-enforcement lawsuit.
So Smith offered back then the very same explanation that her lawyers are making now.