Last edited: February 14, 2005


Today 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 answered yes.

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 long tradition.

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 and procreation.

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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