Test cases are nothing new, they have existed in virtually every area of civil rights doctrine, from integrated lunch counters, Florida beaches off-limits to blacks in the segregation era, to MLK's disobedience to an ostensibly lawful, if clearly unconstitutional court order in Birmingham. So what?
The court had a record before it and four justices chose to take the case either on appeal from the highest court of the state or by certiorari. There was the required ''case or controversy'' that forms the foundation for jurisdiction of any court. Had the state not charged these men there would have been no jurisdictionally mandated ''case or controversy''that was, in the parlance of the courts, ''ripe for adjudication.''
This judge should choose; either be a journalist or a judge. The story may be of interest to some purient minds or some self-righteous fans of FR on the political fringe. But it certainly misses the mark as an important story.
The "so what" is that in those cases, 1) those laws actually were being enforced, 2) some of those people were advocating legislative changes, and/or 3) they weren't seeking to have new rights read into the Constitution.
Farah missed this point completely, because he's a dunce. But the argument for invention of a "right to privacy" or expansion of substantive due process is asking the Court to expand its authority into areas where it should not go. And the fact that these cases were set-ups shows that the Court did not need to intervene. The changing social mores that allegedly justified the manufacture of new "rights" already had led to those statutes not being enforced in a manner that would concern the average person.