SCOTUS and the factsBy Kunal Mehta
Last week The New Republic published an article by Melissa Gira Grant titled, "The Mysterious Case of the Fake Gay Marriage Website, the Real Straight Man, and the Supreme Court" about how the request for a gay wedding website underpinning the 303 Creative LLC v. Elenis case was supposedly fake.
TNR followed it up with "The Supreme Court Doesn’t Care That the Gay Wedding Website Case Is Based on Fiction", which really gets to the heart of the matter in the opening line: "If the Supreme Court persists in making rulings based on fiction, how can we take any ruling seriously?"
But this is far from a new issue. We can look at the landmark 2003 Lawrence v. Texas decision for another example of a ruling based on incredibly questionable "facts". In that case, Lawrence, Garner and Eubanks (all gay), were at Lawrence's apartment. Eubanks, who had supposedly been drinking, became jealous that Lawrence and Garner were flirting. Eubanks left the apartment to go to a vending machine and called the police, falsely reporting that there was a black man with a gun at Lawrence's apartment.
Four officers respond, one claimed they saw Lawrence and Garner having anal sex, another said they were having oral sex and the other two didn't make any mention of it in their reports.
They were arrested and charged with having "deviate sex", specifically anal sex. They would eventually be represented by Lambda Legal and win in a 6-3 United States Supreme Court ruling that struck down all remaining sodomy laws and reaffirmed the unenumerated right to privacy.
Except...the facts of this case were also a lie. Lawrence and Garner weren't having sex, they weren't even in the same room when the police entered!
Dahlia Lithwick wrote a good summary of the book for The New Yorker, explaining that Lambda Legal needed to find actual plaintiffs who had been charged under a sodomy law to challenge their constitutionality. But being convicted of such a charge had significant consequences, so attorneys wanted clients with "with little to lose". Enter Lawrence and Garner.
Here's how Lithwick described it:
The legal opportunity depended, however, upon persuading the defendants to go along with an unusual strategy. High-powered lawyers would represent Lawrence and Garner, as long as they agreed to stop saying they weren’t guilty and instead entered a “no contest” plea. By doing so, the two were promised relative personal privacy, and given a chance to become a part of gay-civil-rights history. The cause was greater than the facts themselves. Lawrence and Garner understood that they were being asked to keep the dirty secret that there was no dirty secret.
That’s the punch line: 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. In order to appeal to the conservative Justices on the high court, the story of a booze-soaked quarrel was repackaged as a love story. Nobody had to know that the gay-rights case of the century was actually about three or four men getting drunk in front of a television in a Harris County apartment decorated with bad James Dean erotica.
They pled no contest to the charges and largely stayed out of the limelight while their attorneys took the lead and won a landmark victory. (Lithwick has a parenthetical stating, "Carpenter is careful throughout to show that none of the civil-rights lawyers lied or misrepresented the facts.")
You could presumably write a similar article titled, "The Supreme Court Doesn't Care That the Anal Sex Case Is Based on Fiction" (consider this to be the alternative title for this blog post). It is entirely believable that a cop in Texas in 1998 would falsely accuse two gay men of having sex so they could be arrested for something after responding to a false report.
It's not hard to find other cases where the Court relied on faulty facts, take a look at the dissent in last year's Kennedy v. Bremerton School District for example.
It's certainly worth asking whether this even matters. Dareh Gregorian wrote a piece for NBC News this week titled, "'Sham' website customer likely didn't affect Supreme Court ruling on same-sex weddings, experts say". Good to know, but this doesn't address the opening question: "If the Supreme Court persists in making rulings based on fiction, how can we take any ruling seriously?"
To put it another way, in Lithwick's New Yorker piece, she pointed out, "Since the days of Brown v. Board of Education, and right up to District of Columbia v. Heller, the 2008 handgun-ban case, major test cases, [attorneys] knew, have turned as much on selecting the perfect plaintiffs as on the law being challenged."
And if you can't find them, just make them up.