Supreme Court Tries Sodomy and Discovers that Texas is Confused about it too.
March 27, 2003
By Dahlia Lithwick
Before we get hung up in the nuts and bolts of Lawrence
v. Texas, let’s be clear: There are two kinds of homophobia, at least in
Texas. The first is a hatred of all things homosexual. That’s bad. The other
involves a certain fondness for gay people-an acceptance that they are A-OK,
so long as they don’t commit any of those sex acts they’re inclined
toward. This sort of Will & Grace (“gays are so cute, but don’t show
me what they do in bed”) homophobia seems not only to be defensible
according to the state of Texas; it also appears to be the lynchpin of their
argument in today’s long-awaited gay sodomy case.
The facts of Lawrence are straightforward and mostly
undisputed: Texas police entered the apartment of Houston resident John
Lawrence in response to a neighbor’s fabricated claim that a man in there
with a gun was “going crazy.” What the cops actually found was Lawrence
and Tyron Garner having anal sex, for which they were promptly arrested under
a Texas law prohibiting “deviate sexual behavior” (i.e., oral or anal sex)
between persons of the same gender.
Pause here to consider that bestiality is not considered
“deviate” under Texas law.
Lawrence and Garner were jailed, prosecuted, and fined
over $200 each. They challenged the law, arguing that it violated the 14th
Amendment’s promise of privacy in intimate sexual matters and its guarantee
of equal protection under the law. They prevailed in the Court of Appeals for
the 14th District of Texas, but lost, 7-2, when the court reheard the case en
banc. So they appealed to Texas’ highest appellate court, which declined to
hear it, and on to the U.S. Supreme Court, where their argument was heard this
Lawrence and Garner have two possible routes to
invalidating the Texas law, and today they press both. The “fundamental
rights” argument tracks a line of contraception and abortion cases holding
that certain intimate, private, family-related choices may be protected from
state interference. This was the basis of Roe v. Wade. The “equal
protection” argument holds that states can’t promulgate laws
discriminating against certain classes of people unless there is some
“rational basis” for the law and a “legitimate government purpose”
behind it. Since the Supreme Court decided their last homosexual sodomy case,
Bowers v. Hardwick, in 1986 on the grounds that the first theory (privacy and
fundamental rights) didn’t apply to gay sodomy, they could overturn the
Texas law on equal protection grounds without throwing out the Bowers
precedent. So confusing is the argument, as it pings back and forth between
due process and equal protection analysis, that at some point Justice Antonin
Scalia asks Paul Smith, who represents Lawrence and Garner, to raise his left
hand while arguing one track and his right while arguing the other.
Chief Justice William Rehnquist immediately challenges
Smith on the claim that there is some longstanding privacy right to commit gay
sodomy. This was the basis of the Bowers decision—a decision in which
Rehnquist was in the majority. “The right has to have been recognized for a
long time,” he argues. Smith responds that laws banning homosexual conduct
didn’t even exist until the 19th century. Scalia argues that sodomy laws
have been on the books from the beginning of the republic, they just included
heterosexual and married couples.
“It’s conceded by the state of Texas that married
couples can’t be regulated in their private sexual decisions,” says Smith.
To which Scalia rejoins, “They may have conceded it, but I haven’t.”
Scalia insists that a liberty interest (under the
fundamental-rights theory) needs to be “deeply rooted in tradition,” and
the mere fact that some of those state anti-gay laws have since been repealed
doesn’t guarantee a fundamental right. He suggests that even if all states
had “repealed their laws against flagpole-sitting,” there would not
necessarily be a fundamental right to flagpole-sit.
(Flagpole-sitting is not a crime in Texas, by the way,
unless said pole has been very strategically placed on your partner’s
Smith explains that fundamental rights are understood to
apply to decisions about “sexual relations in the home” and decisions
about “procreation and non-procreation.” Rehnquist interjects that the
laws at issue have little to do with “non-procreation.” Smith says these
laws say “you can’t have sexual activity at all” if you are gay and
Scalia objects: “They just say you can’t have sexual intimacy with a
person of the same sex.” See? No problem. Homosexuals remain perfectly at
liberty to have heterosexual sex in Texas.
Justice Sandra Day O’Connor—who speaks very little
this morning—asks Smith whether he objects to laws criminalizing
heterosexual sodomy. (Nine states currently have such laws on the books; four
others—Texas, Oklahoma, Kansas, and Missouri—proscribe only gay sodomy.)
Smith responds that all 13 state laws are unconstitutional under his first
(fundamental privacy) point. Then Scalia wonders whether state statutes that
criminalize rape or adultery only among opposite sexes are similarly
unconstitutional. Smith argues that this is quite different from “giving all
people free rein to make sexual decisions except one small group of people.”
Scalia retorts, “You can put it that way. You can make it sound puritanical.
But lots of laws make moral judgments. What about the laws against bigamy?”
Smith argues that there are neutral justifications for
bigamy laws—but none for homosexual sodomy laws. And Rehnquist, in an odd
little celebration of the narrow-minded and the judgmental, offers, “Almost
all laws are based on disapproval of some people or some conduct. That’s why
Smith explains that the anti-sodomy laws have pernicious
secondary effects—keeping gay parents from gaining child visitation or
custody or employment, for instance—and Rehnquist wonders whether, if these
laws are stuck down, states can have laws “preferring non-homosexuals to
homosexuals as kindergarten teachers.” Smith replies that there would need
to be some showing that gay kindergarten teachers produce harm to children.
Scalia offers one: “Only that children might be induced to follow the path
Charles A. Rosenthal Jr. is the district attorney from
Harris County, Texas, and it falls upon him to produce some rational reason
for the Texas anti-sodomy law. He runs aground when he tries to argue that the
two homosexuals caught doing homosexual things in this case may not actually
be homosexual. “I don’t understand what that means,” says Scalia.
“You are not homosexual if you commit one homosexual
act,” replies Rosenthal. Everyone is promptly confused.
In response to a question from Justice Anthony Kennedy as
to whether Bowers is still good law, Rosenthal replies that mores have changed
and that “physical homosexual intimacy is now more acceptable.” Since he
suddenly seems to be arguing the wrong side of the case, an astonished Scalia
steps in to say, “You think there is public approval of homosexuality?”
Rosenthal catches his pass, then runs the wrong way down
the field: “There is approval of homosexuality. But not of homosexual
activity.” Scalia wonders how there can be such widespread “approval” if
Congress still refuses to add homosexuals to classes of citizens protected by
the civil rights laws. “You’re saying there’s no disapproval of
homosexual acts. But you can’t ... say that,” he sputters.
Justice Stephen Breyer asks one of his famed three-part
questions and, when Rosenthal doesn’t answer immediately, Breyer interrupts:
“That’s not my question. I’d like to hear your straight answer.” The
gallery busts up. Rosenthal says there’s a good place to draw the line of
privacy and fundamental rights, and that line is “at the bedroom door.”
“But the line is at the bedroom door in this case!”
yelps Breyer. To which Rosenthal says something suggesting that the two
co-plaintiffs (who have been fighting this case together since 1998) may not
have been having consensual sex.
Breyer, quoting shamed Oxonian Tom Brown, adds that the
whole justification for this law can be reduced to: “I do not like thee Dr.
Fell/ The reason why I cannot tell.” Breyer asks whether Texas could make it
against the law to “tell really serious lies” at the dinner table, and
when Rosenthal sounds like he’s about to say Texas can, Scalia interrupts to
say, “Don’t you think what laws a state can constitutionally pass has
something to do with the sorts of laws that have a long tradition of being
“Certainly,” says Rosenthal.
Justice David Souter asks whether Texas really has a
200-year tradition of criminalizing gay sodomy. “Was this law on the books
in 1803?” he asks.
“Texas wasn’t a state in 1803,” offers Rosenthal.
“Good question!” applauds Scalia. “Don’t fall
into that trap!!”
Breyer notes that during World War I people also thought
it “immoral” to “teach German in schools. . Immoral is a hard line to
“There is a rational basis,” insists Rosenthal.
“You’re not giving us a rational basis,” snaps
“The rational basis,” says Scalia, “is that the
state thinks it’s immoral. Like bigotry or adultery.”
“Or teaching German,” grins Breyer.
Souter wonders why Texas doesn’t limit sodomy among
heterosexuals. “Because it can lead to marriage and procreation,” says
Rosenthal. (So you really want your daughters to be good at oral sex, folks,
if you want to see them married.) Rosenthal closes by telling the court that
Texas is not really homophobic. In fact, they recently passed hate crime
legislation making it illegal to commit crimes based on sexual orientation.
How sweet. Justice Ruth Bader Ginsburg asks why any homosexual would run for
public office in Texas, knowing he’ll be charged by his opponents with being
a lawbreaker. Rosenthal assures her that he could only be called a lawbreaker
if he “commits that act.”
So—to sum up—any homosexuals out there who have
renounced the actual having-of-sex, and are just gay for the privilege of
being stigmatized: Know that you are not only loved in Texas, you may well be
its next governor.
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