Excerpts From the Supreme Court
Data Lounge, March 26, 2003
MR. SMITH The one thing, that I submit the court, the
state should not be able to come in to say is: We are going to permit
ourselves, the majority of people in our society, full and free rein to make
these decisions for ourselves, but there’s one minority of people [who]
don’t get that decision and the only reason we’re going to give you is we
want it that way. We want them to be unequal in their choices and their
freedoms, because we think we should have the right to commit adultery, to
commit fornication, to commit sodomy. And the state should have no basis for
intruding into our lives, but we don’t want those people over there to have
the same right.
JUSTICE ANTONIN SCALIA I mean you can put it that way,
but society always — in a lot of its lives — makes these moral judgments.
You can make it sound very puritanical, the, you know, the laws against
bigamy. I mean, who are you to tell me that I can’t have more than one wife,
you blue-nose bigot?
Sure, you can make it sound that way, but these are laws
dealing with public morality. They’ve always been on the book; nobody has
ever told them they’re unconstitutional simply because there are moral
perceptions behind them. Why is this different from bigamy?
MR. SMITH First of all, the first law that’s appeared
on the books in the states of this country that singles out only same-sex
sodomy appeared in the 60’s and the 70’s, and it did not — and it does
not — go way back, this kind of discrimination.
Now, bigamy involves protection of an institution that
the state creates for its own purposes, and there are all sorts of potential
justifications about the need to protect the institution of marriage that are
different in kind from the justifications that could be offered here involving
merely a criminal statute that says we’re going to regulate these people’s
behaviors, we include a criminal law which is where the most heightened form
of people protection analysis ought to apply.
This case is very much like McLaughlin, Your Honor, where
you have a statute that said, We’re going to give a specially heightened
penalty to cohabitation, but only when it involves a white person with a black
person. That interracial cohabitation is different, and the state there made
the argument, We’re merely regulating a particular form of conduct, and
that’s a different form of conduct than interracial cohabitation. And this
court very clearly said, No, you’re classifying people; and that
classification has to be justified.
And this court at many times said a merely disapproval of
one group of people, whether it be the hippy communes in Moreno or the
mentally retarded in Cleburne, or indeed gay people.
CHIEF JUSTICE WILLIAM H. REHNQUIST But all, almost all,
laws are based on disapproval of either some people or some sort of conduct.
That’s people legislate. MR. SMITH And what this court does under the
equal-protection clause is standard as a bulwark against arbitrary government
. . .
CHIEF JUSTICE REHNQUIST If you prevail, Mr. Smith, and
this law is struck down, do you think that would also mean that a state could
not prefer heterosexuals to homosexuals to teach kindergarten?
MR. SMITH I think the issue of preference in the
educational context would involve very different criteria, Your Honor, very
different considerations. The state would have to come in with some sort of a
JUSTICE SCALIA A justification is the same that’s
alluded to here, disapproval of homosexuality.
MR. SMITH Well, I think it would be highly problematic,
such a custody case.
JUSTICE SCALIA Yes, it would?
MR. SMITH If that were the only justification that could
be offered, there was no some showing that there would be any more concrete
harm to the children in the school. . . .
JUSTICE RUTH BADER GINSBURG Your first argument was the
right of personal privacy in one’s most intimate sexual relations. You were
asked and you didn’t get a chance to answer because you went back on your
equal protection track. You are asking the court to overrule Bowers against
Hardwick. I thought that was very ——
MR. SMITH Yes, Your Honor. We’re asking you to overrule
it, and we think that the fundamental right of unmarried people to make these
choices about private adult consensual intimacy applies to different sex
couples as well as same sex couples . . .
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