Gay-Sodomy Law Argued in Supreme Court
Times, March 27, 2003
3600 New York Avenue NE, Washington, DC, 20002
By Frank J. Murray, The Washington Times
A district attorney fighting to preserve the Texas
statute outlawing homosexual sodomy told the Supreme Court yesterday that
overturning the law would jeopardize all state laws that restrict marriage to
a bond of a woman and a man.
“Victory in this case would make marriage laws subject
to constitutional challenge,” Harris County District Attorney Charles A.
Rosenthal Jr. said in closing his half-hour plea to preserve the convictions
of two men arrested in bed by Houston police under a law he called a
“bright-line moral standard” based on Texans’ beliefs.
Mr. Rosenthal flatly contradicted the homosexual
activists’ central argument that arresting them for sex practices that are
legal among heterosexuals denies the due process guaranteed by the 14th
“It’s not an equal-protection violation because this
court has never recognized a fundamental right to engage in extramarital
sexual conduct,” Mr. Rosenthal said, adding that sodomy between
heterosexuals “can lead to marriage and procreation” and thus further a
legitimate state interest.
Washington lawyer Paul M. Smith, who is cooperating with
the Lambda Legal Defense Fund to represent John G. Lawrence and Tyron Garner,
who were fined $200 each for the 1998 incident, countered by calling the law
“It’s a discriminatory morality ... by a state that
does not penalize in any way adultery or sodomy by persons of the opposite
sex,” Mr. Smith said. “We have a tradition of privacy for sex by couples
in their home.”
Mr. Smith also said the convictions under appeal were
based on laws in every state as recently as 1961, but he said 37 states have
abandoned them because they are outside “basic American values.”
“That depends on what you mean by our ‘basic American
values,’” responded Justice Antonin Scalia, who dominated the aggressive
questioning of both sides. “Suppose all the states had laws against
flagpole-sitting and most were repealed. Does that make flagpole-sitting a
“Almost all laws are based on disapproval of some
people or conduct. . . . Certainly the kind of conduct we’re talking about
has been banned for a long time,” Cheif Justice William H. Rehnquist said to
counter Mr. Smith’s claim that tradition is on his side.
Mr. Smith said the nation has increasingly accepted
homosexuality over the past 30 years.
“The court has not been insensitive to what the world
is like,” Mr. Smith said. “The American people have moved on to the point
that right is taken for granted.”
Justice Scalia replied: “You could say the same thing
Mr. Smith ridiculed as hypocritical the public-health
rationales raised by Texas. He said any physical harm caused by anal
intercourse would damage heterosexuals as much as homosexuals, but was not
forbidden for heterosexuals, and that “some of the safest sexual activity
imaginable” was banned by outlawing lesbian sexual relations.
“If there were a harm beyond moral disapproval, the
state would prohibit it for everyone,” Justice David H. Souter said.
Justice Ruth Bader Ginsburg seemed to agree, joining
Justice Stephen G. Breyer in making points that favored Mr. Smith’s clients
and attached police intrusion into bedrooms.
“Sodomy has been harmful to thousands of people because
they fear they might be prosecuted,” Justice Ginsburg said.
Mr. Smith seeks to nullify the laws of Texas and three
other states—Kansas, Oklahoma, and Missouri—where anti-sodomy statutes
apply solely to homosexuals. He also implored the court to reverse its 1986
Bowers v. Hardwick decision, a 5-4 ruling that allowed states to maintain
anti-sodomy laws that apply to everyone regardless of sexual orientation.
Nine states still have such general laws banning
consensual sodomy, including Virginia.
In other action . . .
[Home] [News] [Lawrence