How Attorneys in Supreme Court LGBTQ+ Case Could Be Disbarred

The attorneys who successfully argued a high-stakes case before the Supreme Court last week could be disbarred amid new reports that refute the veracity of a key document at the center of 303 Creative v. Elenis.

On Friday, the Supreme Court's 6-3 conservative majority ruled in favor of a Colorado web designer who argued she should not have to serve gay customers due to her religious beliefs as a Christian, and that prohibiting her business from doing so would violate her First Amendment rights.

One of the documents that both sides of the case repeatedly referenced was an inquiry that Lorrie Smith received from an engaged same-sex couple asking her to build a website for their wedding. But in the days leading up to the court's bombshell decision, reports emerged that the inquiry was falsified and the man named in the complaint told several news outlets that not only had he never sent Smith the website request, but also that he is straight and has been married to a woman for the last 15 years.

Those allegations are now raising questions about whether or not the attorneys representing Smith will be subject to repercussions for breaking ethical and procedural rules that bar lawyers from making misrepresentations in court. The attorneys who represented Smith were listed as Jonathan Scruggs, Katherine Anderson, Bryan Neihart, Kristen Waggoner, John Bursch and Erin Hawley.

"If a lawyer (or anyone else) on the plaintiff side knew that there was no such claim she could face several consequences, from the minor to the major," former Assistant U.S. Attorney Andrew Weissmann told Newsweek.

If the lawyers representing Smith are found to have made knowingly false representations, the Supreme Court could remove them from practicing in that court and arguing future cases before the justices, Weissman said. Those attorneys could also be referred to their bar associations for sanctioning, which could include suspensions or disbarment. Scruggs, Anderson and Neihart are registered in Arizona, while Waggoner, Bursch and Hawley are registered in Washington, D.C.

The penalties don't just stop at their ability to practice law. Weissmann said that if there is strong proof that the attorneys knew the document was falsified, the attorneys "could face criminal charges for making a false filing in a court."

Last week, The New Republic reported that it had contacted the man named in the complaint, identified as "Stewart," by the phone number and email address that was left unredacted in court filings. The man who answered said he had never submitted an inquiry to Smith, stating that "somebody's using false information in a Supreme Court filing document."

Although the Alliance Defending Freedom (ADF), the conservative Christian legal advocacy group that filed the suit on Smith's behalf, denied those reports before the ruling was released on Friday, other outlets, including the Associated Press, have since reached Stewart, who once again, refuted the claims made about him in the court filings.

In a statement sent to Newsweek, ADF called the allegations of the fake document a "desperate attempt to malign ADF, our client and a critical ruling affirming free speech" and a "tired attempt to punish defenders of free speech for the victory they legitimately won."

"Lorie Smith received the request at issue, and regardless, a request wasn't required for the Court to decide her case," the ADF told Newsweek. The group said Smith had "no reason to doubt [the request's] legitimacy" and that for her to make up the document would have put her at risk of "potential punishment by Colorado, which would have undermined the very purpose for her pre-enforcement suit."

"Every American should be thrilled that the Supreme Court upheld free speech for all in 303 Creative. For those who aren't happy, they should criticize the ruling based on its substance rather than perpetuating falsehoods about the case," ADF said.

"This is potential fraud on the Court," Sherrilyn Ifill, the President and Director-Counsel of the NAACP Legal Defense and Educational Fund, tweeted. "It warrants investigation, potential vacatur & disciplinary proceedings. It also should be seen as a consequence of the Court's apparent zeal to hear this case which did not meet standing even [without] fraud."

Former federal prosecutor Neama Rahmani agreed with Weissman and Ifill, saying that Smith's lawyers could be sanctioned or face administrative action by their state bar association, but noted that the only person who could sue over the alleged fabrication is Stewart, whose last name was not included in the complaint and who has declined to give his last name out of fear of harassment.

"Ironically, the person who has actual standing to civilly sue Smith or her lawyers for privacy torts or defamation is Stewart himself," Rahmani told Newsweek.

While there are a variety of consequences that could await Smith and her attorneys, there will be little that can be done to reverse Friday's Supreme Court ruling, which has been widely considered a major rollback on LGBTQ+ rights in the United States.

That's because the justices had already accepted a set of facts that were made in the lower courts and both parties hadn't disputed the lower court findings that Smith faced a "credible threat" by Colorado state law. Even if the document was falsified, it will be too late to re-litigate whether or not Smith had standing to sue Colorado's Anti-Discrimination Act in the first place.

"The Supreme Court took the case independent of an actual request being made to create a ripe controversy to adjudicate," former federal prosecutor and elected state attorney Michael McAuliffe told Newsweek. "The holding and opinion, now issued, won't be impacted by the new information."

Rahmani said even if the case was re-litigated without the document, it would be unlikely for the court to have ruled differently, given how it's interpreted the law in other influential cases this term.

"The Court took a broad view of standing in the student loan relief case, so the conservative Justices would have likely found that Smith was suffering an imminent harm so they could address the case on the merits," he said. "The fact that the Supreme Court already granted a second writ of certiorari in the Klein baker case after the [303 Creative v. Elenis] ruling shows that Justices' eagerness to hear this case."

Update 07/03/23, 4:56 p.m. ET: This story was updated with additional information.