at the Supremes
From: Barrett Brick
March 26, 2003
I was able to attend todayís oral arguments in Lawrence
& Garner v Texas [number two in the Supreme Court bar members line at 5
am!]. I can offer the following summary:
Paul Smith [the lawyer for the plaintiffs] opened his
argument, and proceeded for a minute or so before Rehnquist queried whether
the issue of historical trends used in 8th Amendment analysis should be
applied to a substantive due process challenge. Smith responded that the
historical trends need to be understood because Texasí law is not normative.
Scalia tried to split the due process and equal protection foci of the case,
and also returned to Rehnquistís issue, asking whether the focus was on
something deeply rooted in tradition or on an evolution in the law. Souter
asked Smith whether he feels he should win on the history argument. Smith
Scalia queried whether there was evidence that when
police discovered acts of same sex sodomy being committed the police turned a
blind eye, and, if not, how can it be argued that the law is not being
enforced? Smith distinguished this from drug cases, in which police actively
investigate and seek out activities behind closed doors.
OíConnor raised the issue of a statute that
criminalised all acts of sodomy. Kennedy [I think] asked whether there would
be an equal protection problem with such a statute. Smith replied that there
would be if Gays were targeted under such a statute.
Scalia opined that states could target evils a step at a
time or target the more odious. Smith responded that it is insufficient to
justify a law simply by arguing that a state wants to outlaw only same sex
acts. Scalia suggested that laws against bigamy are bigoted against bigamists.
Smith replied that anti-bigamy laws protect the state institution of marriage,
that the Texas law being challenged was more akin to a law prohibiting
cohabitation only when interracial.
Rehnquist opined that all laws disapprove conduct. Smith
responded that the Constitutionís equal protection clause is a bar.
OíConnor asked whether heightened scrutiny was needed for the plaintiffs to
prevail. Smith said no, citing Romer v Evans, Eisenstadt v Baird, and City of
Cleveland. Rehnquist asked whether a law preferring heterosexual teachers
should fall? Smith responded that the state would have to justify such a law.
Scalia suggested that disapproval of homosexuality could be a justification.
Smith said the equal protection clause would be a bar.
Ginsburg asked Smith whether he is asking the Court to
overrule Hardwick? Smith said yes. Scalia asked whether Smith thought laws
against adultery were unconstitutional. Smith said thatís a different
situation. Scalia asked why a state couldnít favor heterosexual sex, or
marital sex. Smith asked how is it rational to ban gays from having sex?
Charles Rosenthal, the Harris County DA, opened his
argument by claiming that no fundamental right is implicated by Texasí law,
and that the law has a rational basis. Rosenthal also raised the issue of lack
of clarity in the caseís posture, suggesting that itís not known whether
Lawrence and Garner are gay. Not even Scalia bought that, and Ginsburg and
Souter noted that that is not relevant to the statuteís language. Kennedy
posited that that might have some slight relevance to an equal protection
argument, but queried how did that impact a due process argument. Rosenthal
responded that Hardwick remains good law.
When Rosenthal seemed to get lost in trying to explain
how morals and tradition matter, Scalia tried to rescue him by suggesting that
Congressí failure to add sexual orientation to federal nondiscrimination law
was evidence of contemporary tradition and morals.
Breyer asked Rosenthal how he responds to the challenge
to Hardwick. Rosenthal stated that conviction under the Texas law is no bar to
holding a job. Breyer asked him to answer the question. Rosenthal said that
the state may draw a line at the marital bedroom. Breyer asked why Texas could
go beyond Lawrence and Garnerís door. Rosenthal said that there is no proof
of consent in evidence, and itís OK to go beyond the doors of the unmarried.
Ginsburg asked whether Texas allows same sex couples to
adopt or be foster parents. Rosenthal said he didnít know. Ginsburg asked
how Texas defines a family. Rosenthal said he didnít know. Ginsburg said she
thought that would be relevant to Texasí argument. Rosenthal says the law
penalises only conduct, not status. Stevens asked whether Texas criminalises
sex between unmarried straight couples. Rosenthal said no. Stevens asked
whether Texas criminalises adultery. Rosenthal said no.
Breyer asked that as the law does not create marriages or
kids or procreation, whatís the lawís justification? Rosenthal said that
Texas may set moral standards. Breyer asked whether Texas could outlaw telling
egregious lies at the family dinner table. Rosenthal said yes, but that would
be irrational. Scalia suggested a state can pass a law it thinks it has the
power to pass, or is traditionally permitted to pass.
Stevens asked Rosenthal whether he thought Loving v
Virginia was badly decided. Rosenthal said no, for the law struck down in that
case implicated a fundamental right. Stevens asked whether there wasnít one
implicated here. Scalia suggested the Civil War and the 14th amendment had a
role in Loving. Souter asked when Texas specifically outlawed gay sex.
Rosenthal responded at least as far back as 1854. Souter asked when did Texas
single out gays. Rosenthal said 1973. Souter suggested that this was not a
Breyer said that during World War I many felt it was
immoral to teach German, and some states outlawed it, and then asked whether a
state could outlaw anything it feels to be immoral. Rosenthal said no, that a
state must have a rational basis. Breyer asked whatís the basis beyond
feeling that something is immoral? Souter asked whether isnít harm used to
back up the judgement of a law banning something seen as immoral, so where is
the harm to others that Texas seeks to prevent? Rosenthal said that Texas
wantís to discourage harmful experimentation and drugs. Souter asked again
where is the harm here? Rosenthal suggested health threats, as some amici
suggest, but Texas does not claim this, but he canít say itís untrue.
Souter asked about the claim of amici for Lawrence and Garner claiming that
the law is antithetical to health concerns. Rosenthal said that Texasí amici
disagree. Souter asked why not ban sodomy for heterosexuals if itís harmful.
Rosenthal said that in the case of heterosexuals, it could lead to marriage
When the discussion turned to Romer v Evans, Rosenthal
argued that this case is not like Romer v Evans, which implicated status, not
conduct, keeping people from participating in the political process. Ginsburg
asked whether a criminal in Texas could participate in the political process.
Rosenthal said that gays have campaigned in Texas and been elected to office,
that being gay does not make you a criminal, only acting sexually does.
Rosenthal summed up by arguing that Texas should prevail, otherwise marriage
will be under challengeówhich, he said is especially important to Texas as a
community property state. Other criminal sex acts and the age of consent would
be challenged as well if Texas loses.
With reserved time, Smith noted that status is irrelevant
to the elements of the Texas law, nor is coercion. Smith argued that Texasí
morality justification fails, as the statute does target gays. As for health
concerns, Smith noted that Texas law outlaws safe practices while permitting
unsafe practices by heterosexuals.
I am notoriously poor at reading the Supreme Courtís
tea leaves, but my gut reaction is that while we may not have the votes to
overturn Hardwick outright, I donít think Texasí law will survive the
equal protection challenge.
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