[opinion] Judge Janice Law is Probably Wrong

A quick biography of a woman I knew nothing about ten minutes ago: Judge Janice Law was born in Flint, Michigan (yes, just like Michael Moore). She attended the University of Michigan (and then presumably completed law school at Nova (in Ft. Lauderdale). She is currently a visiting judge at county courts in Houston, Texas, in the same building where I did my summer internship (though I don't recall ever having seen her). It is reported that she, for a while, wore surgical gloves in court to avoid touching papers which criminal defendants had touched (link to article). She now presides bare-handed.

I'll probably never read Judge Law's new book Sex Appealed: Was the U.S. Supreme Court Fooled? (link to amazon). I have, however, read a few articles (link to article) on conservative and religious news sites that talk about it, and--since I predict the book could turn into a talking point for pundits--I'd like to beat them to the one point that drove me insane. Namely, this:

What [Judge Law] the journalist-turned-prosecutor-turned-judge-turned-journalist found, after interviewing most of the key players [in the Lawrence case], including those in the Texas homosexual subculture that produced the case, is that the Supreme Court, possibly for the first time in history, ruled on a case "with virtually no factual underpinnings."

What? That's not even historically accurate. Facial challenges to statutes can be achieved without any facts at all--you can seek declaratory and injunctive relief if you can show that you're in the class of persons sought to be regulated by the statute.

Judge Law seems to be alleging that Lawrence was a conniving trick by homosexual fiends to force the Supreme Court to deal with the issue. The article continues:

When the Supreme Court decided to hear the challenge to Texas anti-sodomy laws in 2002, the only facts for the high court to review were Deputy Joseph Richard Quinn's 69-word, handwritten, probable cause affidavits – written within hours of the arrests of the three principals in the case Sept. 17, 1998.

There had been no trial. There had been no stipulations to facts by the state or the defendants. The defendants simply pleaded no contest at every phase of the proceedings. It was quite simply the misdemeanor dream case homosexual activists in Texas and nationwide had been dreaming about. Or had they done more than dream about it? Had they schemed about it, too?

The article concludes:

If the Lawrence case were known to be a setup during the five years following the arrests, then the defendants would not have a right-to-privacy claim, and the U.S. Supreme Court probably would never hear the case.

Now, I'm just a law student. I don't know much, and I pretend to know a lot less than I do, but I still don't think this is right. Either she's saying there was no standing, or she's saying that the Lawrence decision somehow depended on the fact that Lawrence and Geddes were involuntarily caught in the act.

As to standing, there's no issue: if you break a law and get caught, you have standing. It doesn't matter why you broke the law or why you got caught. There's no clearer case or controversy than being in jail.

So, she's got to be saying that the Supreme Court would have ruled differently if they had known it was a staged test case. I think she's misrepresenting the idea of "right to privacy," though. I think she's saying, "Inviting the cops into your home waives your right to privacy," because she thinks privacy means "the ability to do something in secret."

I don't think that's what privacy means at all. I think it means "the ability to do some things without the government interfering." And if that's true, inviting the cops into your home to watch you have intercourse would not waive your right to "privacy" at all, just as inviting the cops to the drug store to watch you buy contraceptives would not have waived your right to privacy in Griswold v. Connecticut.

What I really think Judge Law, or at least this article, wanted to say was that homosexuals are sneaky and conniving and will stop at nothing to force their agenda upon the entire world--even resorting to staging faux controversies in order to bring the perfect case before the court.

Some of the most famous civil rights stories in history were staged: Miss Rosa Parks was a secretary for the NAACP; the lunch counter sit-ins of the 1960s weren't held because somebody wanted a sandwich. These scenes were crafted to avoid any judicial wiggling, to hit the issue right on the head and avoid rulings on other grounds.

I don't know if Lawrence was a test case or not, but I do know that it was nearly perfect. That's not sinister, that's good lawyering.