Last edited: February 14, 2005

Selected Excerpts From the Supreme Court

The 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 justification.

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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