Oh, God; Please Don’t

Since the AP is now picking up this scoop, read the original version from @melissagira 👇👇

The Mysterious Case of the Fake Gay Marriage Website, the Real Straight Man, and the Supreme Court https://t.co/0as1v1mzPt Follow @newrepublic

— Josh Marshall (@joshtpm) July 2, 2023

I know, I know: where’s the dead horse GIF?  BUT THIS IS NOT A SCOOP! Not even of ice cream! 🍦 The “New Republic” article is dead wrong on both the facts and the law!

This issue comes to us through, IMHO, the confluence of Sotomayor’s dissent, and a publicity stunt by the people paying the plaintiff’s legal fees (a la, frankly, the Scopes monkey trial. Seriously. It’s a long tradition.) The case was lagging in the trial court (IIRC from the article) so a story was put into the record, and then reported via press release, about this person who actually exists but didn’t actually seek services from Creative 303 for…well, anything.

The lawyers for the plaintiff pressed this in the press; but not in court. As even the article recognizes, the trial court ignored this basically unsubstantiated claim (putting it in a pleading and presenting it as evidence in court are two very different things.) The “New Republic” says the alleged customer never even knew his name was in the court record. THAT MEANS HE NEVER TESTIFIED! Without his testimony (best evidence rule), this issue was never considered by the trial court.  OR ANY COURT THEREAFTER.

The “New Republic” acknowledges this, but says the unsubstantiated claim is still in the court record (true; because the court record includes all filed pleadings) and therefore through some mysterious process known only to non-lawyers who HAVE NO CLUE HOW APPEALS WORK!, somehow still affected the outcome.

Although this mysterious stranger and this truly fictional claim was never proved up in court, hence never presented in court, hence never considered by the appellate courts (who are bound to consider the record of the trial/final hearing, and not every damned thing alleged but never proven*), AND IS NOT EVEN HINTED AT IN THE MAJORITY OPINION NOR IN THE DISSENT!

Good Lord, people, learn to read!  Better yet, learn how the courts actually function!

This nonsense is precious little different from the idiot who killed himself and four paying customers beneath the North Atlantic, except no one will be killed by this ignorance. But, unburdened by useful knowledge, this article is convincing tout le internet that the most important part of this case is SOMETHING THAT NEVER HAPPENED!

Which is what the plaintiff’s lawyers were trying to do when they floated this into the press back when this case was in the trial court.

Well done, everybody. You’ve proven yourself all useful idiots. Golf claps all around. You’ve earned it.

*You know that favorite thing every TV show and movie loves to show? “I object!” You do that to “preserve error.” If you don’t do it, the appeals courts can’t “see” the error in the trial court, because you didn’t preserve it. Likewise if you don’t put on evidence in trial/at a hearing, even though you alleged it in a pleading, the appeals courts can’t “see” that, either.  

And Neal Katyal (don’t say I don’t cover my bases) should know better.