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Lots of big Supreme Court decisions this week, all important in various ways--none, if you ask me, likely to be nearly as impactful as imagined by either their proponents or opponents. But I was struck by a particular take on the religious freedom in commerce case that I saw popping up in a few places today.
Very roughly, here's the deal: American courts can only decide "cases and controversies." This is a procedural thing, basically you need a plaintiff who has actually been harmed in some cognizable way before you can file a lawsuit. Sometimes this means you need someone willing to engage in a little civil disobedience, breaking the law for the express purpose of getting prosecuted. "Plaintiff shopping" is something activist lawyers have been doing for centuries. But to layfolk this can look a little suspicious, in much the way that forum shopping can seem suspicious. In fact American law is mostly indifferent to this kind of gamesmanship, and in some cases we even regard it as a clever thing to do (at least, when our ingroup pulls it off).
The CNN story presents itself as a "just the facts" observation that--hey, here's a party to the facts of this case who claims he didn't do what the record says he did! Isn't that interesting? Gosh, how "concerning," he says! Nobody even thought to contact him in six years!
No one is saying this changes anything, oh, no! Just, isn't it suspicious? (Is that... winking I hear?) Well, regardless, Stewart is only identified by his first name; CNN was able to contact him "through information in court filings." Although, in another funny coincidence,
Now, CNN is only a mid-sized comedy troupe, but it does rival some legitimate news organizations in size and scope. Still, what are the odds, huh?
I've got several friends in my social feeds sharing the story, now, making snide remarks about how Lorie Smith clearly ginned up this whole case out of nothing. Of course, the CNN story doesn't actually say that; it just reminds the reader how suspicious it is for a plaintiff to have, shall we say, gussied up their case.
But the point of this post is not to take the piss out of CNN. Rather, what struck me was one other remarkable coincidence. There is another incredibly famous LGB rights case from the Supreme Court in which the actual facts of the case are completely irrelevant to the holding: Lawrence v. Texas.
That link is to a New Yorker article called "Extreme Makeover." If you're not familiar with Lawrence v. Texas, this was the 2003 SCOTUS case in which Justice Kennedy declared that the government has no business telling you who you can have sex with, as long as it's consensual and you're in the privacy of your home. Much like the later Obergefell case, Kennedy's opinion in Lawrence is packed with paeans to the sanctity of love and the primacy of intimacy--so packed, indeed, that there is essentially no room for coherent legal analysis! But here's the crazy bit:
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. If you haven't heard the story, you really must read the New Yorker article. But in short, Lawrence and Garner were not together, sexually or otherwise, before or after the case. But since they were the two charged under the anti-sodomy statute, and activist lawyers wanted a case to take to the Supreme Court...
And so:
Perhaps better court-watchers than myself had some idea of what was going on, but I did not know anything about any of this until the New Yorker article ran nine years later. Does it make any difference? Well, maybe it makes you suspicious. Maybe not. Maybe you're thinking, "hmm, isn't tu quoque an informal fallacy?" Well, I'm not really staking a claim either way. I don't like forum shopping, I don't like plaintiff shopping, but I don't think I have anything like a thoroughly-developed account of why--it's more like a general distaste for gamesmanship. But without gamesmanship, American jurisprudence might scarcely exist at all! So I don't know.
But taking CNN's "just asking questions" article at face value, it makes me wonder where all the real gay people are, and why we can't seem to get a gay rights case in front of SCOTUS with parties who aren't being puppeted, Chicago-style. Okay, that's a bit of hyperbole, but still, two points form a line. So long as Congress remains sufficiently split that impeachment and amendments are off the table, the Supreme Court is the last word on American law. Why bother with the democratic process, if you can convince five unelected and unaccountable moral busybodies to make the law instead? All it takes is a bit of theater, apparently.
It doesn't necessarily end well for the puppets, of course--from the New Yorker again:
I don't know what the moral of the story is. Being disillusioned with the legal process is nothing new or insightful. But this was what occurred to me when I read the CNN piece, and saw people sharing it around as proof positive of the Court's perfidy. No, silly people, the Court is not fundamentally deceptive. The Court is always and altogether--albeit willfully, like a moviegoer whose suspension of disbelief is essential to the process, like a wrestling fan whose kayfabe is the lifeblood of the art form--deceived.
I think the New Yorker piece overstates Carpenter’s analysis of Lawrence, and in turn Carpenter’s paper is more than a little conclusory. It is very hard to read this and come away with the assumption the two men certainly or even likely never had sex, even if it raises some weak questions about whether they were caught immediately in the act (or drunkly continue before police) rather than just having been undressed in a room with a lot of gay porn when caught.
I don't find it hard at all! This is literally an associate professor of law at Yale asserting "my reconstruction of events based on interviews long after the fact is more plausible than the story told by Lawrence and Garner themselves"--men who, as the New Yorker article notes, were specifically preferred by activists in part because they had "little to lose." Here's from the law review piece:
Of course, I wasn't there, I don't know, maybe the professor is correct. But if so, then Lawrence and Garner (and by extension, their advocates) were lying to the Court anyway, which is kinda my original point, so... not sure what that gets you?
Yes, but the Yalie's claims still includes sections like :
This isn't compatible with "But in short, Lawrence and Garner were not together, sexually or otherwise, before or after the case", nor "the case that affirmed the right of gay couples to have consensual sex in private spaces seems to have involved two men who were neither a couple nor having sex." At most, Carpenter's analysis tries to question whether the men were having oral sex, or whether the police had actually seen them fucking rather than just recognized that they had been.
But that is not actually the legal question relevant to the case. Even had Lawrence and/or Garner brought a not-guilty plea, rather than plead no contest, and faced a jury, the jury would not have asked which of the two had topped for a minute in front of police, but merely whether they had sex. Even excluding the contested police statements, it doesn't exactly take a giant leap of faith to think that the two men found naked in a room with some gay porn, after a false police call that was triggered by a lover's spat, were Down Bad. Separately, the men were long-term confirmed bachelors, but this isn't even a 'but they might someday violate the statute' question; the available evidence suggests this wasn't even the first time the two fucked. It's possible that the two were merely remarkable fans of frottage or manual masturbation, or that prosecutors wouldn't consider rimming to count, or what have you, but it's a bit of a reach.
These are reasonable discussions! It's quite likely that at least one if not all of the police testimonies were 'embellished' if not simply lying as a way to implement 'contempt of cop' as a charge, and that does say something for these laws in specific and for due process in general (although I think Carpenter is a little too quick to assume contradiction and, for that, which direction: drunken guys making bad decisions are not ). But the 1973 statute in question banned both oral and anal sex, and like all crimes allows arrest and charge on relatively low standards of evidence. And neither Lawrence nor Garner would have to have lied. After all, "no contest" does not require you to plea that the factual allegations in a claim are true, unlike a guilty plea (indeed, a lot of states have case law about people having to plea no contest because they could not remember facts of an incident well enough or even at all to plea guilty).
I expect Carpenter tolerates, if not intentionally courts, this confusion: there's a reason his paper subtitles a section as "Posing As Somdomites [sic]". But Carpenter only says this in the subtitles, which are apparently in the group of things no one expects to be honest, and tbf he throws in an annoying footnote. This sort of thing is neither unusual nor is Carpenter (or the New Yorker) particularly severe here. But it's still kinda relevant to recognize that they were sodomites, and almost all the available evidence suggests that they were at least working on the practical side of that with each other the day of the arrest.
The revelation that Lawrence and Garner were not married-in-everything-but-name is more honest and contradicts a lot of the implications the Lawrence cert request about not merely couples but 'long-term couples', and in Kennedy's writing (along with its other problems: the man's first draft was so florid gay clerks asked him to tone it down), and it's somewhat more fair.
((Indeed, here perhaps Carpenter is either unwilling or too unfamiliar with the matter to actually Darkly Hint: his analysis, at most, suggests that Lawrence and Garner had a one-night stand or perhaps a threesome-turned-twosome with an annoyed third wheel. That neither Eubanks nor Garner had regular employment and were staying late at night in a large apartment rented by a man of moderate income... sometimes that sorta thing is someone genuinely providing as much as they can to destitute soon-to-be-friends. Sometimes helping down-on-their-luck gay guys out means a bunch of gay guys will be in your apartment. And then sometimes it means they'd owe you a favor. I'd bet closer to category one or two, here, but I've seen the aftermath of people chasing three.))
That they were not a traditional couple (or threepul or whatever) is a more realistic criticism of Kennedy's writing. But that still does not get us to "Plaintiff shopping", "All it takes is a bit of theater", or a place where we can't find "parties who aren't being puppeted". Indeed, Carpenter and Lewis both agree that all three of Eubanks, Garner, and Lawrence were very far from the sort of parties that anyone would want for a court case. One of the police that night (Quinn, the man who alleged to have been exposed to over a minute of two men fucking at gunpoint) thought it was an intentionally-farmed case. But Carpenter dismisses that entirely; Quinn's report is the one Carpenter believes was most heavily 'exaggerated'.
There are aggressively shopped cases and plaintiffs; even assuming the report for 303 Creative isn't lying it still wouldn't be the most severe. US v. Miller is my long-standing favorite, simply because the 'controversy' involved a man who was dead before the case was decided. There are even some traits for this case after the charges were filed: the defense lawyers requesting that their own clients face higher fines (so they could appeal) are one of the more obvious.
Rather than being picked as people to find a case, or perhaps had a case with facts selected to best present before the court, the gay men here seemed to have been 'picked' once they were already facing prosecution, and picked mostly in the sense that they and Lawrence in particular (previously pulled to a police car in his underpants while shouting at police!) were obstinate enough to pick a fight.
There's a fair critique that these men did not have the information to understand what that fight would entail for them over the long term, or that given costs of what they paid that the broader movement owed them more; the New Yorker piece ends with a bit on that. And it's quite true: I've made my case for smaller-scale problems, but the extent the legal community depends on an army of sacrificial lambs is pretty appalling. But it is less an argument in favor of 'natural' cases as against them.
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