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PaperclipPerfector  10mo ago (text post)   34966 thread views

Culture War Roundup for the week of June 26, 2023

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There was no gay sex in Lawrence. Indeed, there was no gay couple in Lawrence.

The plaintiffs were gay men, charged under Texas' anti-sodomy statute.

I'm not a lawyer, so maybe I'm missing something, but I'm not sure I see your point. The plaintiffs in Lawrence had a harm to bring a case over: they really were charged with sodomy. Is your assertion that the facts of the case didn't support the charge so it was dishonest of them to take a legal strategy of "that shouldn't be illegal" instead of "we didn't do that"? (I don't know, maybe they did try the "we didn't do that" line of defense in a lower court and failed? I can't imagine a case based on the word of a few gay men vs. the word of police officer eyewitnesses going well for the gay men.)

That seems different from the claim that no gay marriage website was ever ordered, so the whole case was actually about a hypothetical harm, which I thought was grounds for throwing a case out, as otherwise the courts would be flooded with hypotheticals and they already have trouble keeping up with the concrete cases.

Reading up about the Lawrence case before, it is the same general idea as Roe vs Wade or the Scopes Monkey Trial: the popular view of what went on is not the actual truth. Both sides in Scopes agreed to the trial, the prosecution because they wanted a test case on teaching evolution in school and the defence because they hoped a big public trial would attract national attention and revive the town's flagging fortunes, so the teacher agreed to be prosecuted:

The American Civil Liberties Union (ACLU) offered to defend anyone accused of teaching the theory of evolution in defiance of the Butler Act. On April 5, 1925, George Rappleyea, local manager for the Cumberland Coal and Iron Company, arranged a meeting with county superintendent of schools Walter White and local attorney Sue K. Hicks at Robinson's Drug Store, convincing them that the controversy of such a trial would give Dayton much needed publicity. According to Robinson, Rappleyea said "As it is, the law is not enforced. If you win, it will be enforced. If I win, the law will be repealed. We're game, aren't we?" The men then summoned 24-year-old John T. Scopes, a Dayton high school science and math teacher. The group asked Scopes to admit to teaching the theory of evolution.

Rappleyea pointed out that, while the Butler Act prohibited the teaching of the theory of evolution, the state required teachers to use a textbook that explicitly described and endorsed the theory of evolution, and that teachers were, therefore, effectively required to break the law. Scopes mentioned that while he couldn't remember whether he had actually taught evolution in class, he had, however, gone through the evolution chart and chapter with the class. Scopes added to the group: "If you can prove that I've taught evolution and that I can qualify as a defendant, then I'll be willing to stand trial."

When Roe vs Wade went to trial, Norma McCorvey had already had the baby and the lawyers were using her as the test case for the real plaintiffs:

Sarah Weddington recruited Linda Coffee to help her with abortion litigation. Their first plaintiffs were a married couple; they joined after the woman heard Coffee give a speech. The intended suit would state abortions were medically necessary for the woman. The woman had a neurochemical disorder and it was considered medically necessary that she not give birth or raise children, yet they did not want to abstain from sex, and contraception might fail. The attorneys were concerned about standing since the woman was not pregnant. Weddington later wrote that they "needed to find a pregnant Texas woman who wanted an abortion and would be willing to be a plaintiff." They also wanted to increase the likelihood that the panel selection would help them win in court. They wanted to present their case to a three-judge panel which included a judge they thought would be sympathetic, which was a possibility only by filing a case in Dallas. If either of the two cases they filed in Dallas were assigned favorably, they intended to ask for the other one to be consolidated with it.

At first, Weddington was unsuccessful in finding a suitable pregnant woman. In June 1969, 21-year-old Norma McCorvey discovered she was pregnant with her third child. Ordinarily, lawyers are not allowed to directly solicit clients without any prior relationship, but McCorvey's situation qualified for an exception in the no solicitation rule which allows lawyers to solicit new clients for public interest cases. According to a sworn statement made in 2003, McCorvey asked if she had what was needed to be part of Weddington and Coffee's lawsuit. She recounted being told, "Yes. You're white. You're young, pregnant, and you want an abortion." Both McCorvey's whiteness and her lower social class were crucial factors in the attorneys' choice to have her as their plaintiff.

There's a lot going on when the sausage is being made that the public never see or know about!

so the whole case was actually about a hypothetical harm, which I thought was grounds for throwing a case out,

Not when the plaintiff is seeking an injunction, and can show a likelihood of future injury:

To establish Article III standing, a plaintiff "must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct ... and (3) that is likely to be redressed by a favorable judicial decision." . . . There are two ways that plaintiffs' allegations of a fear and risk of future arrest can satisfy the injury-in-fact requirement for prospective relief. First, there is a sufficiently imminent injury in fact if plaintiffs allege "an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder." Babbitt v. Farm Workers Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979). "[I]t is not necessary that [a plaintiff] first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights." Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). Separately, there is an ongoing injury in fact if plaintiffs make a "sufficient showing of self-censorship, which occurs when a claimant is chilled from exercising his right to free expression." Cooksey v. Futrell, 721 F.3d 226, 235 (4th Cir. 2013) (internal quotation marks omitted).

Kenny v. Wilson, 885 F. 3d 280 (4th Cir 2018)

That was not my layman's understanding of "standing", so thanks for the reference.

I've definitely seen people on the left complain about the difficulty/time it takes to get a test case through the courts for things like the recent abortion restrictions in various states. I wonder if this will lead to the left trying to use the same legal tactic to challenge those laws faster (and how that will go for them). Or maybe they already are and it's just not covered.

I am pretty sure that was the basis for the recent successful challenges to "drag ban" laws. And it certainly was re the injunction re the "Stop WOKE Act." Re abortion restrictions, I would think that it would be easy enough to find someone who is pregnant and wants an abortion.

I would think that it would be easy enough to find someone who is pregnant and wants an abortion.

I could see that being difficult because there's no possibility of the case being resolved fast enough to matter for the plaintiff.

A plaintiff can get a court order pretty quickly in such cases. This suit was filed on June 25, 2022, and a temporary restraining order was issued on June 27.

I'm not a lawyer, so maybe I'm missing something, but I'm not sure I see your point. The plaintiffs in Lawrence had a harm to bring a case over: they really were charged with sodomy.

To the extent that I have a point at all, it's that the jurisprudence of homosexuality--and perhaps, we might infer, many other things--is substantially fictive. I think many people are suspicious of forum shopping, fewer are aware of plaintiff shopping but people do seem to be a bit suspicious of that, too. Most people are aware of civil disobedience, though, and don't necessarily think of it as problematic, even though it does involve ginning up a case rather than addressing the law from a position of organic (so to speak) social interaction. I do think CNN's "just asking questions" article is too coy by half, but as I noted in another reply, I don't have any serious objections to how these cases turned out. Just--if you're (the general you, not you personally) going to raise doubts about one SCOTUS case based on its loose connection to real events, you might not like where that leads (or, more likely, you're just engaged in isolated demands for rigor).

That seems different from the claim that no gay marriage website was ever ordered, so the whole case was actually about a hypothetical harm

While I don't think SCOTUS mentioned the "chilling effects" doctrine in 303 Creative, the Court has long recognized that the law does actual, rather than hypothetical, harm in cases where the law is clearly intended to "eliminate disfavored ideas" (p. 25).

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