From Arguments Before the Supreme Court
York Times, March 27, 2003
229 W. 43rd Street, New York, NY 10036
Fax: 212-556-3622 E-Mail: firstname.lastname@example.org
WASHINGTON—Following are excerpts
from arguments before the Supreme Court today in Lawrence v. Texas, as
recorded by the Alderson Reporting Company. Arguing against the law was Paul
M. Smith; defending it was Charles A. Rosenthal Jr., the district attorney for
Harris County, Tex. The Times has supplied the identities of the justices.
MR. SMITH: The one thing that, I submit the court, the
state should not be able to come in to say is: We are going to permit
ourselves, the majority of people in our society, full and free rein to make
these decisions for ourselves, but there’s one minority of people [who]
don’t get that decision and the only reason we’re going to give you is we
want it that way. We want them to be unequal in their choices and their
freedoms, because we think we should have the right to commit adultery, to
commit fornication, to commit sodomy. And the state should have no basis for
intruding into our lives, but we don’t want those people over there to have
the same right.
JUSTICE ANTONIN SCALIA: I mean you can put it that way,
but society always—in a lot of its lives—makes these moral judgments. You
can make it sound very puritanical, the, you know, the laws against bigamy. I
mean, who are you to tell me that I can’t have more than one wife, you
Sure, you can make it sound that way, but these are laws
dealing with public morality. They’ve always been on the book; nobody has
ever told them they’re unconstitutional simply because there are moral
perceptions behind them. Why is this different from bigamy?
MR. SMITH: First of all, the first law that’s appeared
on the books in the states of this country that singles out only same-sex
sodomy appeared in the 60’s and the 70’s, and it did not—and it does
not—go way back, this kind of discrimination.
Now, bigamy involves protection of an institution that
the state creates for its own purposes, and there are all sorts of potential
justifications about the need to protect the institution of marriage that are
different in kind from the justifications that could be offered here involving
merely a criminal statute that says we’re going to regulate these people’s
behaviors. We include a criminal law which is where the most heightened form
of people protection analysis ought to apply.
This case is very much like McLaughlin, Your Honor, where
you have a statute that said, We’re going to give a specially heightened
penalty to cohabitation, but only when it involves a white person with a black
person. That interracial cohabitation is different, and the state there made
the argument, We’re merely regulating a particular form of conduct, and
that’s a different form of conduct than interracial cohabitation. And this
court very clearly said, No, you’re classifying people; and that
classification has to be justified.
And this court at many times said a mere disapproval of
one group of people, whether it be the hippy communes in Moreno or the
mentally retarded in Cleburne, or indeed gay people.
CHIEF JUSTICE WILLIAM H. REHNQUIST: But all, almost all,
laws are based on disapproval of either some people or some sort of conduct.
That’s people legislate.
MR. SMITH: And what this court does under the
equal-protection clause is standard as a bulwark against arbitrary government
. . .
CHIEF JUSTICE REHNQUIST: If you prevail, Mr. Smith, and
this law is struck down, do you think that would also mean that a state could
not prefer heterosexuals to homosexuals to teach kindergarten?
MR. SMITH: I think the issue of preference in the
educational context would involve very different criteria, Your Honor, very
different considerations. The state would have to come in with some sort of a
JUSTICE SCALIA: A justification is the same that’s
alluded to here, disapproval of homosexuality.
MR. SMITH: Well, I think it would be highly problematic,
such a custody case.
JUSTICE SCALIA: Yes, it would?
MR. SMITH: If that were the only justification that could
be offered, there was no some [?] showing that there would be any more
concrete harm to the children in the school. . . .
JUSTICE RUTH BADER GINSBURG: Your first argument was the
right of personal privacy in one’s most intimate sexual relations. You were
asked and you didn’t get a chance to answer because you went back on your
equal protection track. You are asking the court to overrule Bowers against
Hardwick. I thought that was very -
MR. SMITH: Yes, Your Honor. We’re asking you to
overrule it, and we think that the fundamental right of unmarried people to
make these choices about private adult consensual intimacy applies to
different sex couples as well as same sex couples . . .
MR. ROSENTHAL: The petitioner also claims that the mores
of our nation have changed to the point where physical homosexual intimacy is
now part of the fabric of American values. And it’s our position this cannot
Even if you infer that various states acting through
their legislative process have repealed sodomy laws, there is no protected
right to engage in extrasexual—extramarital sexual relations, again, that
can trace their roots to history or the traditions of this nation.
JUSTICE SCALIA: I’m sorry. I didn’t get that
argument. I thought you were going to say—you were responding to the
argument that the morals haven’t changed, or that the morals have changed so
that homosexuality is now approved. And you respond to that by saying that
there’s no tradition? I mean, that’s a totally different argument from
tradition. I mean, the argument is tradition doesn’t matter.
MR. ROSENTHAL: Well, history—tradition—does not
matter in terms of whether or not it can be a protected liberty interest.
JUSTICE SCALIA: Why do you think that the public
perception of homosexual acts has not changed? Do you think it hasn’t?
MR. ROSENTHAL: The public perception of it?
JUSTICE SCALIA: Yes, yes. Do you think there’s public
approval of it?
MR. ROSENTHAL: Of homosexuals, but not of homosexuality
JUSTICE SCALIA: What do you base that on?
MR. ROSENTHAL: I beg your pardon?
JUSTICE SCALIA: What do you base that on?
MR. ROSENTHAL: Well, even -
JUSTICE SCALIA: I mean I think there ought to be some
evidence which you can bring forward.
MR. ROSENTHAL: Sure.
JUSTICE SCALIA: Like perhaps the failure of the federal
Congress to add sexual preference to the list of protected statuses against
which private individuals are not permitted to discriminate, that addition has
been sought several times and it’s been rejected by the federal Congress,
MR. ROSENTHAL: Yes, sir, and in addition, what I was
trying to say by the fact that various states have changed their position on
sodomy, they’ve done it through the legislative process. And that’s where
we believe this belongs, is in the statehouse of Texas, not this court.
JUSTICE SCALIA: Yes, but I thought you were responding to
the argument that the public perception hasn’t changed, that there still is
a public disapproval of homosexual acts.
And you can’t establish that by saying that the states
have repealed their homosexual laws.
MR. ROSENTHAL: Well, I think it goes back to whether
people in Texas and people in the other states that had this law on their
books actually accepted through their representative government. I think it
comes down to the actual people who determine the consensus and mores of the
state or the elected legislators.
JUSTICE SCALIA: Might there be a difference between the
people’s willingness to prosecute something criminally and the people’s
embracing of that as a fundamental right?
MR. ROSENTHAL: Well, certainly. And just because someone
has decriminalized sodomy doesn’t mean that they embraced that practice as
something that ought to be taught in the schools, as was mentioned before.
JUSTICE STEPHEN G. BREYER: But the argument of Bowers, to
overrule Bowers, is not directly related to sodomy. It’s related, but not
directly. It’s that people in their own bedrooms, which have their right to
do basically what they want, it’s not hurting other people. And they, the
other side, says Bowers understated the importance of that. It got the history
wrong. It didn’t understand the relationship of the sodomy to families, and,
in addition, Bowers has proved to be harmful to thousands and thousands and
thousands of people, if not because they’re going to be prosecuted, because
they fear it, they might be, which makes it a possible instrument of
repression in the hands of the prosecutors. Now, that’s the kind of argument
that they’re making. Harmful in consequence, wrong in theory, understating
the constitutional value.
MR. ROSENTHAL: All right -
JUSTICE BREYER: All right, now how do you respond to
MR. ROSENTHAL: O.K. First of all, let me correct
something that’s very minor at this point, but the allegation was made in
petitioner’s argument that people convicted of homosexual conduct are banned
from jobs and housing and all that kind of thing. In Texas, homosexual conduct
is a Class C misdemeanor. That is, it is the lowest misdemeanor or the lowest
prohibition that Texas has.
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