Testimony Lackluster in Capital
DA struggled to back sodomy law in Supreme Court
Chronicle, March 30, 2003
801 Texas Avenue, Houston, TX 77002
By John Williams and Patty Reinert, Houston Chronicle
On first blush, it seemed peculiar that Harris County
District Attorney Chuck Rosenthal chose to appear personally before the U.S.
Supreme Court to defend the state’s sodomy law.
He never had argued before the high court. By his own
account, he has scant appellate experience, while his office has an appellate
expert well-versed in the case.
Rosenthal has spent most of his 26-year legal career
asking local juries to convict accused criminals, gaining a reputation as a
passionate prosecutor better known for connecting with witnesses than for
But for several years, the sodomy case has created a
political storm. GOP activists demanded the ouster of two Republican Houston
appellate judges after they ruled the law prohibiting sexual activity between
members of the same sex violated the Texas Constitution.
So on Wednesday, Rosenthal, a Republican who faces
re-election in 2004, traveled to Washington to defend the law.
It was a rare, if not unprecedented, appearance at the
court by a Texas DA, and his performance drew unenthusiastic reviews from
veteran court observers and an expression of disappointment from Rosenthal
At issue is the state’s 1973 Homosexual Conduct Law,
which makes it a Class C misdemeanor for same-gender couples to have oral or
anal sex, even in private. The same acts are legal when practiced by
The court is expected to rule by July.
The case involves John Lawrence and Tyron Garner, who
were arrested in 1998 after police burst into Lawrence’s Pasadena apartment
to investigate a report of a man with a gun, which turned out to be bogus.
Instead, they found Lawrence and Garner in a bedroom engaging in sex.
The men were arrested, pleaded no contest and paid $200
fines, then chose to fight the law.
Opponents of the sodomy statute contend that it deprives
homosexuals of their constitutional right to equal protection under the law.
Rosenthal made a states’ rights argument that Texas can
determine its own laws on morality.
After watching the arguments, longtime court reporters
wrote analyses comparing Rosenthal’s performance unfavorably with that of
his much more seasoned opponent, Paul Smith.
The New York Times’ Linda Greenhouse wrote that
the argument “proved to be a mismatch of advocates to a degree rarely seen
at the court.”
Stephen Henderson of Knight Ridder Newspapers listed
among low points in Rosenthal’s argument his response to a question from
Justice Ruth Bader Ginsburg about whether Texas bars gays from adopting
children. (It does not.) “I don’t know,” Rosenthal replied.
Henderson wrote that Rosenthal’s response
“underscored how poorly his argument was going,” and that the DA “had a
difficult time articulating a rationale for the law.”
USA Today’s Joan Biskupic called the arguments
“surprisingly lopsided,” noting that Rosenthal “struggled” to defend
the law and “had trouble answering questions about what harm the 30-year-old
statute seeks to prevent.”
Even Justice Antonin Scalia, who along with Chief Justice
William Rehnquist made a mighty attempt to bolster Rosenthal’s case,
squinched up his face at one point and admitted, “I don’t understand your
Afterward, Rosenthal walked down the courthouse steps in
the nation’s capital to face the waiting media.
“I didn’t do as well as I’d like,” he
volunteered, but added that Texas had filed “a great brief.” He quickly
added that he did not write it.
The court relies mostly on written briefs in deciding
Conventional wisdom among court observers, however, is
that cases are rarely won—but can be lost—in oral arguments.
So why did Rosenthal risk losing a potentially landmark
case on a bad performance?
He leapfrogged Assistant District Attorney Bill Delmore,
a respected appellate expert who argued the case in Houston before the 14th
Court of Appeals in 2000. At that time, Rosenthal was first assistant to
District Attorney John B. Holmes, who retired that year.
Rosenthal also could have asked state Attorney General
Greg Abbott for help defending the state law, as district attorneys often do.
Rosenthal said he bypassed the attorney general because
Abbott took office late last year and did not have enough time to get up to
speed on the case.
Rosenthal said he didn’t want to “put anyone else in
He said the case is important because, if the court rules
that the sodomy law violates the constitution’s equal protection clause,
gays could get other rights now afforded solely to heterosexuals, such as
“I took the oath of office to uphold the law,”
Rosenthal said. “I should be the one to take the responsibility.”
As for the criticism? “I don’t read that stuff,”
Houston gay rights activist Ray Hill said Rosenthal was
playing to social conservatives, an important part of his political base.
“This is posturing for his religious fanatic
support,” Hill said. “He’s trying to put up a front for the suckers who
pay his political contributions.”
Rosenthal, serving his first term, could face Democratic
opposition next year. One high-profile prospect mentioned in political circles
is Houston Police Chief C.O. Bradford. Earlier this year, Rosenthal’s office
prosecuted Bradford on a perjury charge that a state district judge dismissed
before the defense even presented its case.
Rosenthal said that future elections played no role in
his decision to appear before the Supreme Court, though he acknowledged he is
well aware of the case’s political history.
In 2000, a three-judge panel on the all-Republican 14th
Court of Appeals struck down the sodomy law as unconstitutional by a 2-1 vote,
saying it violated equal protection rights.
Later that year the state Republican Party adopted a
platform plank calling for the election defeat of the two judges who voted to
strike down the law, Paul Murphy and John S. Anderson.
Harris County Republican Party leaders drafted a letter
asking Anderson, who was unopposed for re-election, to change his ruling or
step aside for a replacement candidate. But the letter to Anderson was never
sent after some GOP chairmen in other counties served by Anderson’s court
refused to sign it.
In 2001, the 14th Court of Appeals upheld the sodomy law
7-2, with Murphy and Anderson dissenting. Murphy retired that year, two years
before his term ended. He said the sodomy case had nothing to do with his
The Texas Court of Criminal Appeals refused to hear the
case, and it began moving through the federal system to the U.S. Supreme
Other court watchers doubted Hill’s claim that
Rosenthal was grandstanding to political supporters in making the Supreme
Neil McCabe, a South Texas School of Law professor who
wrote a brief in the state appellate case opposing the sodomy law, said he
would have done the same thing, given the chance to argue in the Supreme
“I’m not a big Chuck Rosenthal supporter, and I have
been critical of him,” McCabe said. “But you can’t criticize him for
making an effort.”
South Texas law professor Gerald Treece, a constitutional
law expert, said that Rosenthal knew he was facing a tough task. The two
discussed the case shortly before the Supreme Court hearing, believing that
Justices Sandra Day O’Connor and Anthony Kennedy likely will be the swing
“To me, Chuck is a brave person,” Treece said.
“It’s a hard argument to say what the morals of the people should be.
“It’s even harder because of the way the statute is
written because we allow conduct between heterosexuals and not homosexuals.”
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