Supreme Court LGBTQ 'Fake Case' Could be Reversed—Lawyer

As backlash grows over the Supreme Court's recent decision to rule in favor of a Christian designer who didn't want to make wedding websites for a gay couple in 303 Creative v. Elenis, allegations that the case hinged on a fake claim are gaining strength.

Lawyer Neal Katyal, who as acting solicitor general between 2010 and 2011 argued more than 50 cases in front of the Supreme Court, said that if the case turned out to be based on a fake claim, as he said it would appear, the court's decision could be officially stricken.

On Friday, the court's conservative majority delivered a blow to LGBTQ rights nationwide, ruling 6 to 3 in favor of Colorado graphic artist Lorie Smith, who had refused to design a website for a same-sex couple's wedding despite state law barring discrimination based on sexual orientation, race, gender, and other characteristics.

The Supreme Court voted to defend Smith's free speech rights under the Constitution's First Amendment, opening the way for artists to refuse work that, as the court put it, goes against their beliefs.

But recent reporting by The New Republic (TNR) revealed that the name of the plaintiff in the case—allegedly the gay man who had asked Smith to design a wedding website for himself and his husband-to-be, Stewart—had never made a similar request.

In fact, Stewart—whose name, address, and contact information could be found in court filings—was married to a woman at the time the request to Smith was allegedly made, and he had never heard about the case, as he told TNR.

Stewart's theory is that someone—potentially Smith and her attorneys—used his information to invent the case of a gay couple asking a Christian designer for a wedding website.

Talking about this revelation on MSNBC this weekend, Katyal said that the court's decision could be stricken if it was in fact not actually based on a serious claim.

"The U.S. Supreme Court is bound, our founders in Article 3 said you have to have an actual case or controversy in order to go to the United States Supreme Court and seek relief," he said.

"Here, it's a fake case according to the story. There's no controversy. This person never wanted to be involved in this in any way, shape or form," he continued, adding that the Colorado Attorney General should be going back to the United States Supreme Court now.

"It's a tragedy that they didn't find this information out before, but there is a procedure to seek re-hearing and to get this decision stricken from the book, and I think that's what should happen here," he added.

Katyal represented the federal government in all appellate matters before the Supreme Court during the Obama administration. He previously served as an attorney in the Solicitor General's office and as Principal Deputy Solicitor General in the U.S. Justice Department.

He has spent the last three years serving as Special Prosecutor for the State of Minnesota in the murder of George Floyd.

The potential striking of the court's decision would have LGBTQ communities and advocates rejoicing, after having expressed dismay at Friday's ruling.

The ruling was backed by the conservative justices only. The liberal justices dissented, saying that the rationale behind the conservative majority's decision "cannot be limited to discrimination on the basis of sexual orientation or gender identity."

President Joe Biden called the ruling "disappointing," saying that it "weakens long-standing laws that protect all Americans against discrimination in public accommodations—including people of color, people with disabilities, people of faith, and women."

Newsweek has contacted Katyal for comment by email.