Last edited: February 14, 2005

High Court Examines Gays’ Rights

Sex-Based Case Sparks Emotions

Chicago Tribune, March 27, 2003
435 N. Michigan Avenue, Chicago, IL 60611
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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 Latin translation.

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 marriages.

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 custody decisions.

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 established relationships.

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 moral guideposts.

“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 case.]

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