Last edited: December 07, 2004

Scalia on Gay Rights; Breyer on 17th-Century Poetry; and More on Oral Arguments in the Texas Sodomy Case

The American Prospect (online edition), March 27, 2003
P.O. Box 772, Boston, MA 02102-0772

By E. J. Graff

It’s an odd feeling to sit at the Supreme Court—as I did yesterday morning during oral arguments in Lawrence v. Texas—and watch strangers debate the legality of your sex life. If you’ve been to the Supreme Court, you already know about its trappings of Delphic oracular authority: the marble columns, the somber red velvet drapes, the justices wrapped in their Wizard of Oz robes, sitting high above us ordinary mortals. The justices will need all those august trappings, all those theatrical reminders of their liturgical authority, to help give their upcoming decision in Lawrence the impression of impartial rationality. That’s because in the end, this is one case they’ll likely be deciding based on their own biases and beliefs.

On Sept. 17, 1998, Harris County (Texas) police received a call saying an armed gunman had broken into a man’s apartment. When they walked in, they found John Lawrence and Tyrone Garner having sex. The officers arrested the two, put them in jail and charged them with violating Section 21.06 of the Texas penal code, which criminalizes “deviant sexual intercourse,” that is, anal or oral sex—but only between two people of the same sex. (Bill Clinton and Monica Lewinsky would have been perfectly safe in Texas.) The men pleaded no contest, were fined $125 apiece and promptly challenged the law.

You may well recoil at the idea of two people being arrested for private intimacies. But the Court upheld the right of states to do exactly that in 1986’s Bowers v Hardwick, after Georgia police arrested Michael Hardwick in his own home. Of course that was 17 years ago, and there’s been a cultural revolution since then, a transformation of American attitudes toward lesbians and gay men.

Or so goes the argument of the Lambda Legal Defense and Education Fund, which has been spoiling for a rematch ever since Bowers. After pushing Lawrence all the way through the Texas state and federal appeals courts, Lambda put three questions in front of the Supreme Court—and the Court agreed to consider every one of them.

First, in criminalizing oral and anal sex only for same-sex couples, doesn’t the Texas “homosexual conduct” law violate the 14th Amendment’s guarantee of equal protection? Why, in other words, should particular sexual acts be legal for some people and illegal for others?

Second, doesn’t the arrest of people for private, consensual intimacy in their own homes violate the 14th Amendment’s due-process clause? This question doesn’t quite make sense unless you know the Talmudic accretions of meaning with which the Supreme Court has, over the last 140 years, surrounded the words “liberty” and “due process” in the 14th Amendment. Using these phrases, the Court struck down laws banning contraception (Griswold v Connecticut and Eisenstadt v Baird) and abortion (Roe v Wade), as well as zoning laws that banned non-nuclear families from some neighborhoods. The Court has insisted that “liberty” means you get to decide what to do with your body, your home and your family—that if the Constitution stands for anything, it stands for protecting your private life from the state (unless the state has a pretty darn good reason to interfere).

Third, shouldn’t Bowers v. Hardwick be overruled? That’s the most exciting question, and the hardest one. The concept of stare decisis—a strong respect for precedent—is one of the guides the Court employs to keep from appearing utterly capricious by overruling itself every few years. Now and then the Court has flatly changed its mind—most famously, Brown v Board of Education overruled Plessy v Ferguson, which had allowed legal segregation—but when it does, it’s a big deal.

So that’s the background. Here’s what unfolded yesterday at the U.S. Supreme Court. Lambda’s argument was handled pro bono by Paul Smith from the Washington-based law firm of Jenner & Block. The first interruption to his remarks came from Chief Justice William Rehnquist, who said that to decide that a due-process right is fundamental enough to be protected under the 14th Amendment, that right would have to have a long tradition of being recognized—and there’s no such longstanding tradition of recognizing the right to sodomy. That’s what the Court wrote in Bowers, that there is no “fundamental right” to “homosexual sodomy.”

Ah, but gay-rights advocates have been working on their answer to this issue for the past 17 years. Smith offered up a historical tour of the word “sodomy,” explaining that in colonial times it was just one of the nasty extramarital trio (“adultery, fornication, sodomy”) prohibited for everyone, not just two people of the same sex. In fact, Smith explained, even then such laws were never enforced against private, consensual sex; they were only invoked against rape or sex with children, or sex in public. Prohibitions applying specifically to same-sex acts weren’t passed until the 1970s. The Texas law is actually named the “Homosexual Conduct” law. Other states have been knocking down their sodomy laws like dominoes. The Court, Smith urged, should get on the right side of history.

Justice Antonin Scalia wasn’t buying it. What, he asked, if once upon a time all the states had laws against flagpole sitting, and all but a handful repealed them? Would we have to declare flagpole sitting a fundamental right? No, Smith replied. We’re talking about a law that has terrible effects on real people every day. In stamping gay people with criminal sanctions, it declares them second-class citizens, which has practical consequences. As for the right to choose your sex partner and family and the right to freedom of intimate association—well, rights don’t get any more fundamental than those. Smith reminded the justices that in Griswold v. Connecticut (the 1965 decision that married couples could use contraception) and Eisenstadt v. Baird (the 1972 decision that even unmarried people could buy and use contraception) the Court held that everyone has the right to have baby-free sex. It’s just illogical to say that right doesn’t apply equally to straight and gay.

At that point Justices Stephen Breyer and David Souter jumped in to help Smith. Court watchers already know that Breyer and Souter—along with Justices Ruth Bader Ginsburg and John Paul Stevens, who wrote a beautiful and stinging dissent in Bowers—will be voting on the right side of this case. Justices Sandra Day O’Connor and Anthony Kennedy are the two swing votes, the ones we need to win—and O’Connor voted with the majority in Bowers. So it was a bit thrilling when O’Connor actually spoke up to ask a question—and was echoed by Kennedy. They both wanted to know: If Texas had banned anal and oral sex for everyone, would there still be an equal-protection question?

That’s a good sign. Most observers expected that if O’Connor and Kennedy came over to side with Lawrence, it would probably be on equal-protection grounds. Gay-rights advocates specifically didn’t make an equal-protection argument in Bowers so that if they lost, they could come back and try another day. Yesterday was that day. What’s more, both O’Connor and Kennedy voted with the equal-protection majority in Romer v Evans in 1996, when the Court held that a state can’t pick one group—gay people—to ban from the political process.

Scalia didn’t like this signal from O’Connor and Kennedy at all. He jumped in to complicate the question: What if states had banned only male-female rape, not male-male rape, he asked? Wouldn’t those laws be just as unconstitutional under this argument? Smith responded that laws that single out one group must have a compelling justification. A male-female definition of rape could conceivably be justified by saying that men are more able to protect themselves. But that’s not the issue here. Texas law defines “deviant sexual intercourse” as anal or oral sex for anyone, yet explicitly criminalizes it only for lesbians and gay men.

But Scalia was working up to his real point: Look, he said, society makes a lot of moral judgments. Bigamy laws are moral judgments. Adultery laws are moral judgments. You want to knock those down, too? Rehnquist echoed Scalia, saying that all laws make moral judgments—that’s why people legislate.

But O’Connor, bless her soul, brought the argument back onto equal-protection grounds by asking Smith whether he is seeking “heightened scrutiny”—legal jargon for the special protection that the Constitution affords certain groups because of past discrimination. (For instance, blacks receive heightened scrutiny under the 14th Amendment because of slavery.) Any law that touches such a “suspect classification” must be microscopically scrutinized for signs of bias.

But having lesbians and gay men declared a suspect classification is not thought to be a winning legal argument. So Smith told O’Connor that nope, regular “rational basis” scrutiny—which means that the state can toss up any old justification for a law so long as it has some rational relationship to its goal—is fine. And, Smith added, Texas doesn’t offer up any reason for its law except to say that it’s “a symbolic expression of disapproval.” That’s not enough, Smith contended. Sure it is, Scalia replied; the Court said it was, in Bowers.

Rehnquist then asked whether Smith was saying that a state couldn’t pass a law preferring heterosexuals to homosexuals as kindergarten teachers. Exactly, chimed in Scalia: That law’s justification would be that, without it, children might be induced to become homosexuals. As Scalia’s words slipped out, courtroom listeners actually gasped.

Then it was time to hear from Charles Rosenthal, the district attorney for Harris County, Texas. Why such a low-ranking legal figure, you may well ask? Why not the state attorney general or the U.S. solicitor general? My guess is that no one wants to go down in history as a famous loser. The startling vapidity of the Texas brief—the state’s written argument, in which it lays out all its facts and reasons—has led some observers to wonder whether the state decided to cut its losses and invest only an absolute minimum amount of time and resources in this case. Really. You try reading the brief and see if you can find the argument.

Rosenthal stumbled through three arguments: First, there is no fundamental right to extramarital sexual conduct. Second, the state has a rational basis for prohibiting same-sex sodomy as an expression of moral disapproval. Third, the petitioners—Lawrence and gay-rights advocates—never even proved they were gay. (A general and slightly disbelieving gasp from the audience greeted that remark.) We have no objection to gay people in Texas, Rosenthal said. We have a hate-crimes law and everything. We’re not banning a class of people, which would be prohibited under Romer, we’re simply banning an act. We prohibit anyone—not just gay people but heterosexuals as well—from doing the deed with someone of the same sex.

You should have heard the courtroom laughing at that. And yet, of course, this was the case’s central question—the question of status versus conduct. Are gay people an oppressed group, unfairly singled out for hatred, or are they just ordinary folks who make a choice to do one bad thing?

Culturally, of course, that question’s been decided. And so Ginsburg, Souter, Breyer and Stevens ate the poor Harris County district attorney alive. The man could hardly stutter out his answers to their condescending questions before the courtroom was laughing at him yet again. Over and over Scalia had to jump to his defense, making much more articulate arguments than Rosenthal did. Couldn’t you argue that in fact there is still general disapproval of homosexuality, Scalia asked, as evidenced by the fact that gay people have tried and repeatedly failed to add themselves to federal anti-discrimination laws? Rosenthal wouldn’t take this help, though, and instead made a leaky tautological argument. The Texas legislature passed the law, he said, and that’s how you know the public disapproves. It was really a separation-of-powers argument: States can pass laws, gosh darn it, and courts should let them. But it sounded pretty feeble. So Scalia tried to help Rosenthal again, asking if there might not be a difference between faint tolerance and embrace of sodomy as a fundamental right.

The four moderates wouldn’t hear it. With utter condescension, Breyer started in on Rosenthal, saying Bowers is harmful to thousands upon thousands of people and is an instrument of repression and oppression. This case is about government intrusion inside the bedroom, he said. Tell me why that’s something the state has any business doing. Where else will you draw the line if not at the door to the bedroom? Whenever Rosenthal tried to use one of his stock answers, Breyer dragged him back to the edge, instructing the district attorney to “please give a straight answer to the question.” Laughter and more laughter emanated from the audience as Rosenthal tried to argue that no one had proven that the two men’s sexual act was consensual, and that besides, marriage was where the state should draw the line. Marital sex acts—and those that might encourage people to get married and have babies eventually—should be protected, he argued, and nothing else.

It was all downhill for the poor man from there. When Ginsburg asked whether Texas prohibited same-sex couples, or lesbians and gay men, from adopting, Rosenthal didn’t know. She lectured him on this point, saying that if the state thinks lesbians and gay men could be proper guardians of children, surely they should be free to have intimate relations. Stevens grilled Rosenthal on whether Texas prohibited fornication for unmarried heterosexuals, and whether there was a criminal law against adultery. Rosenthal admitted that, no, Texas allows both. Breyer then demanded to know why the homosexual-conduct law exists, asking if the rationale wasn’t a bit arbitrary. And here, the justice took the odd step of invoking a 17th-century poem—written by an Oxford student about his dislike for a particular dean—to illustrate the Texas law’s arbitariness: “I do not like thee, Dr. Fell; the reason why I cannot tell.”

Shocked laughter ensued.

Rosenthal tried again to say that Texas had the right to set moral standards for its people. Breyer needled him a bit: So could Texas pass a law saying that people can’t tell lies at the family dinner table? Some of those lies can be seriously harmful. His tone of voice was ridiculing; audience members were laughing so hard that their faces were turning red. And Rosenthal basically stuttered in response. It was embarrassing. In the absence of a competent argument from Texas, Scalia ended up taking on the four liberal justices himself, with Rosenthal intermittently bleating “yes” or “no” to echo him.

In other words, the oral argument was a rout. I haven’t been able to find anyone—including the Harris County district attorney’s office—who will predict a Texas win. But what kind of gay-rights victory is coming? Will it be an equal-protection win only, striking down just the four same-sex-only sodomy laws in Texas, Oklahoma, Kansas and Missouri—a 6-to-3 vote, an opinion that’s written very narrowly to persuade a reluctant O’Connor and Kennedy to sign on? Or will Kennedy and O’Connor be willing to overturn Bowers outright, declaring that, because other sodomy laws are, in practice, invoked only against gay people, they amount to little more than outmoded incursions into individual privacy?

Even the United Nations now declares sodomy laws to be a violation of fundamental human rights. Will the Supreme Court decide that the United States should join the modern world? We shall soon find out.

  • E.J. Graff, the author of What Is Marriage For? The Strange Social History of Our Most Intimate Institution, is a visiting researcher at Brandeis University’s Women’s Studies Research Center and a Prospect contributing editor.

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