High Court, Antigay Case Looks Weak
Inquirer, March 27, 2003
PO Box 8263, Philadelphia, PA 19101
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,
“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
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
“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.
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