Last edited: February 14, 2005

At High Court, Antigay Case Looks Weak

Philadelphia Inquirer, March 27, 2003
PO Box 8263, Philadelphia, PA 19101
Fax: 215-854-4483

By Stephen Henderson, Inquirer Washington Bureau

WASHINGTON—In arguments before the U.S. Supreme Court, a Houston prosecutor’s defense of Texas’ homosexual sodomy ban appeared to crumble yesterday under the weight of three simple words: I don’t know.

It’s a phrase no lawyer wants to utter in response to a justice’s question, for fear of appearing unprepared. When Harris County District Attorney Charles Rosenthal offered it in response to Justice Ruth Bader Ginsburg, it only underscored how poorly his argument was going.

Paul Smith, a lawyer for two Houston men convicted under the Texas law, had a relatively easy time in front of the justices yesterday. He argued that the state violated the men’s privacy rights and singled them out for conduct that would not be illegal if they were heterosexual, violating the Constitution’s equal-protection provisions.

But Rosenthal seemed overwhelmed by intense questioning even from justices who appeared sympathetic to the state’s case in Lawrence v. Texas. And he had a difficult time articulating a rationale for the law beyond Texas’ right to set moral standards.

He was unable to directly address questions from Justice David H. Souter about what harm Texas might be trying to prevent with its law banning “deviate sexual intercourse” with someone of the same sex. He could not clarify for Justice Antonin Scalia—who also seemed skeptical of Smith’s arguments—how the law fit with evolving cultural views on homosexuality. And he did not respond directly to Justice Stephen G. Breyer’s question about why the state could not use the same logic behind the sodomy law to ban lying or rudeness or other activities it deemed immoral.

Ginsburg challenged his assertion that the Texas law did not apply to heterosexuals because the state had an interest in protecting the institutions of marriage and family.

“Does Texas ban gay adoption?” Ginsburg asked, adding that if it didn’t, gay couples with children would be considered families, too.

“I don’t know,” Rosenthal replied. Florida is the only state that bans gay adoption.

The Lawrence case springs from a 1998 incident in which police, responding to a false call reporting a “crazy man with a gun,” entered a Houston man’s apartment and found him engaged in anal sex with another man. Police arrested and charged them both and they were fined $200.

The case has attracted national attention, largely because it has been 17 years since the high court considered the constitutionality of a sodomy law.

Gay-rights groups see the appeal as an opportunity to overturn the 1986 Bowers v. Hardwick ruling that said gay people had no fundamental right to engage in sodomy. Texas and its supporters—including the U.S. Solicitor General’s Office—seek to preserve that ruling.

The court’s decision, expected by the end of June, would directly affect the 13 states that still have sodomy laws, and would have even greater impact on the four—Texas, Kansas, Oklahoma and Missouri—that outlaw oral and anal sex only between same-sex couples. The states that ban consensual sodomy for everyone are Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah and Virginia.

In its briefs, Texas echoed the Bowers ruling in saying there was no inherent right to engage in same-sex sodomy. The state also said its law, which dates to the early 1970s, would apply not only to homosexuals, but also to heterosexuals who engaged in same-sex sodomy.

Rosenthal expanded on that idea yesterday: “It would apply to people who experiment with homosexual behavior, or men in prison who have sex with each other.” The law is not discriminatory, he said, because it bans same-sex sexual conduct, not homosexuality itself.

Smith argued that the court’s 1986 ruling was wrong, principally in its assertion that gay sex did not deserve the same protections as heterosexual sex because it bears no relationship to the institution of family.

“That has changed, and there are now hundreds of thousands of gay families,” Smith said. “Their sex should be protected like married sex.”

Also yesterday, the justices split, 5-4, in upholding state programs that raise about $200 million a year for free legal help for the poor. The programs use interest earned from short-term trust accounts that lawyers use to hold clients’ money.

  • Contact reporter Stephen Henderson at 202-383-6003 or This article includes information from the Associated Press.

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