The left’s favorite guy on all things “legal” is Laurence Tribe. There isn’t a legal controversy on which he won’t opine. And, in the last decade, he has become more shrill, more feckless, and more attenuated from the facts and law. In short, Mr. Tribe is generally and almost universally wrong.
On June 30th, following the 303 Creative decision, Tribe jumped into the mosh pit, claiming that the whole 303 case was based on “fiction” — a lie. Tribe claims that 303 Creative used a “phony” email to start the controversy. He then went one more step to make his point heard. He “pinned” the tweet so anyone trolling his Twitter feed will see it.
So it seems this “case” was trumped up in more ways than one:
It was a phony controversy — cooked up just to pitch a curveball that only a Trump-stacked Court would’ve swung at.
And swing it did!
I’d say it hit a foul. https://t.co/kbG0Un9joH
— Laurence Tribe 🇺🇦 ⚖️ (@tribelaw) June 30, 2023
Tribe’s cited authority? A Guardian article in which the author claims that the premise of the case and jurisdiction for certiorari was based on a lie. The article title reads: “Key document may be fake in LGBTQ+ rights case before US supreme court.”
Tribe, via the Guardian article, claims that the case should never have reached the Supreme Court because the “key” document wasn’t really from a gay couple seeking a wedding web design. The person behind the “purported” 303 online form, “Stewart,” claimed he didn’t fill out the form, that he isn’t gay, and is, in fact, married with a child. Tribe calls the 303 case a “phony controversy that only a Trump-stacked court would’ve swung at.”
Tribe forgets to mention that almost no case arrives before the Supreme Court and is granted review without first going through a trial court and then courts of appeal.
Both the Guardian and The New Republic jumped on this online form as evidence that the case is bogus and should never have been heard. Tribe gaslights with the same type of language, intimating that the case is built on a lie. Maybe reporters for the Guardian and The New Republic don’t know better, but Tribe absolutely does (or should). He knows his pinned tweet is a strawman.
Why? Principally because the state of Colorado stipulated to a multitude of facts. One of the stipulated facts is the authenticity of the online form. What does that mean? It means that even if the form wasn’t filled out by “Stewart,” even if he isn’t gay, and even if he wasn’t seeking a wedding design, the State of Colorado’s attorneys stipulated to those facts and the form as authentic. Procedurally, that stops the inquiry. Even if the attorneys for the state had asserted during oral argument that the online form really wasn’t sent by “Stewart,” the court would have shut him or her down.
“Hey, we just contacted “Stewart,” and he claims he never filled in the form and he isn’t gay” isn’t a valid appellate argument. It wouldn’t even be a valid argument at trial.
The court would have replied by first asking the arguing attorney if they have ever practiced appellate law and then, in essence, may have said something like: “SO WHAT?”
The New Republic found and interviewed “Stewart,” who claimed he didn’t fill out the online form, telling the publication:
“I disagree with this, in the strongest possible terms,” Stewart told [The New Republic] “I couldn’t disagree with her stance more.” And while he wants nothing to do with the spotlight of this case, he does want it to be known: He never asked for a website, let alone what may result.
We may never know the origin of the submitted form. What we do know is that what “Stewart” claims now is wholly irrelevant. The form was and is a stipulated fact, and for purposes of this case, it is a fact that he submitted the form.
Once a fact is stipulated to and the trial court’s ruling/order is filed, that is it. It is over. You don’t get a “fourth strike.” You don’t get to undo facts or stipulations. The state of Colorado didn’t just allow that form to be admitted under stipulation; it also stipulated to the one fact that I believe completely cooked its goose. It admitted via stipulation that 303 Creative’s speech was “expressive.” What does that mean? It means the type of speech in question is subject to a strict scrutiny test.
Here is the stipulated fact that set Colorado up for failure:
[303 Creative] wedding websites will be “customized and tailored” through close collaboration with individual couples, and they will “express Ms. Smith’s and 303 Creative’s message celebrating and promoting” her view of marriage.
Laurence Tribe can (and often does) bellow at the moon. He did so on Twitter on June 30th. His rants don’t change the fact that the state of Colorado stipulated to a multitude of facts, and some of those stipulated facts took a broadside to their own opposition to 303 Creative’s Petition. Although Laurence Tribe wants to pretend that the online form was a crucial, foundational piece of evidence, it never was. 303 Creative had already filed its petition based on a theory that one can preemptively challenge an unconstitutional law. The chief legal officer at Lambda Legal, an LGBTQ advocacy group, admitted that in the Guardian article.
Also from the Guardian article:
Lawrence Pacheco, a spokesman for Colorado’s attorney general, Philip Weiser, declined to comment on the possibility that the query might be falsified. He pointed out that the attorney general’s office had raised questions about the query in its brief to the supreme court.
“The Company did not respond to that online form. Nor did the Company take any steps to verify that a genuine prospective customer submitted the form”
The State never checked with “Stewart” before it stipulated to the form as being real and the facts stated in it being true. It simply admitted that it was — and did so six years ago.
The Supreme Court justices didn’t respond to or mention the claim that “Stewart” never sent the form because the state of Colorado had already admitted that it was authentic and real. It was a moot issue six years ago.
Laurence Tribe thinks he is being edgy with his silly Twitter strawman. Unfortunately for Tribe, it all burned up on a pyre of facts and law.
Can we all stipulate to that fact?