Court Examines Gays’ Rights
Sex-Based Case Sparks Emotions
Tribune, March 27, 2003
435 N. Michigan Avenue, Chicago, IL 60611
By Jan Crawford Greenburg, Washington Bureau
WASHINGTON—Several Supreme Court
justices on Wednesday questioned a Texas law that makes homosexual conduct
between consenting adults a crime, suggesting its only purpose was to single
out a disfavored group.
“What is the justification for this statute other than,
‘I do not like thee Dr. Fell, the reason why, I cannot tell?’” Justice
Stephen Breyer asked a lawyer defending the law, quoting an old parody of a
Justice David Souter puzzled over why Texas was
regulating behavior that harmed no one. Justice Ruth Bader Ginsburg asked how
the law could pass muster, because homosexual couples can adopt children.
Justice John Paul Stevens compared it to laws that once had banned interracial
The emotionally charged case is of enormous importance to
gays and lesbians, and as the justices’ questions indicated its reach
extends far beyond sexual behavior. The court’s decision could be among the
most significant civil rights rulings in years, with implications for
homosexuals’ efforts to be treated equally in the workplace and in child
Spectators began lining up outside the Supreme Court
Tuesday afternoon for a coveted seat to watch the hourlong arguments, which at
times were moving and intense. Even during technical legal points, spectators
were captivated and, on several occasions, openly reacted to comments by
justices with groans or laughter.
In his questions, Chief Justice William Rehnquist
indicated he was sympathetic to the state, suggesting it was entitled to make
moral judgments and pass laws regulating them. Justice Antonin Scalia also
suggested he would side with Texas officials, who argue that they have a right
to set moral standards.
Attorney Paul Smith, of Chicago-based Jenner & Block,
argued that the Texas sodomy law, which prohibits “deviate sexual
intercourse” with another person of the same sex, violated the
constitutional rights of two Texas men who were arrested in one of their homes
after officers responded to a report of a disturbance and found them having
sex in a bedroom.
In challenging their convictions, the men argued the law
violated their privacy rights and treated them differently than heterosexual
couples, in violation of the Constitution. They lost an appeal in the state
Court of Appeals, which held that Texas had a rational reason for passing the
law: “namely, preserving public morals.”
In addition to the two separate constitutional issues in
the case, the court must consider whether it should overrule its 1986 Bowers
vs. Hardwick decision, which upheld a similar law in Georgia and rejected a
constitutional privacy claim.
Smith said that decision was wrong in part because it was
based on incorrect assumptions about gay lives. “It has to be apparent to
the court now,” he said, that hundreds of thousands of gay people are in
In a later exchange with the Texas lawyer defending the
statute, Breyer noted that the gay community widely believes the Bowers ruling
has been an “instrument of repression” and has “proved harmful to
thousands and thousands of people.”
“I’d like to hear your straight answer on those
points,” he told Houston District Atty. Charles Rosenthal.
Rosenthal eventually contended that states could set
“They can say certain kinds of activity can exist and
certain kinds of activity can’t exist,” he said.
Twelve other states have criminal laws banning sodomy.
Kansas, like Texas, explicitly bars same-sex sodomy. Missouri, which has a
similar law, enforces it only in part of the state. Oklahoma’s law has been
interpreted by state courts to exclude heterosexual conduct. Alabama, Florida,
Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah and
Virginia bar consensual sodomy for everyone. . . . [The rest is about another
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