Grill Attorneys in Sodomy Case
Data Lounge, March 26, 2003
WASHINGTON—A majority of the
Supreme Court on Wednesday appeared ready to overturn the Texas “homosexual
conduct” law, seeming to concur with arguments that the statute violates
constitutional equal protection guarantees and is an unwarranted government
invasion of privacy. A decision made along equal protection lines would not
directly conflict with the court’s infamous Bowers vs. Hardwick
decision which denied gay people the right to privacy for consensual sex.
The New York Times reports Thursday the cultural
and constitutional arguments presented before the justices were “mismatched
to a degree rarely seen at the court.”
Paul Smith, who is representing the two men prosecuted
under the Texas law, is a former Supreme Court law clerk and seasoned lawyer
familiar with court procedures and practices. He was described by court
observers as calm, assured and elegant in his presentation.
Charles Rosenthal Jr., charged with defending the Texas
law, on the other hand, made what appeared to be an almost inept appearance
before the court. He made what the Times described as
“first-timer’s mistakes” and was apparently unprepared to field
questions more experienced lawyers would have easily anticipated.
The Times said Rosenthal was blind even to the
assistance and guidance offered by a sympathetic Justice Antonin Scalia.
Smith took Justice Scalia’s antagonism towards his
arguments in stride and set out early to root his case for repeal in
long-established constitutional principles. He noted that while the concept of
gay civil rights was new, a central libertarian ideal grounded its pursuit in
the nation’s earliest beginnings.
“So you really have a tradition of respect doe the
privacy of couples in their home, going back to the founding,” Smith said.
He noted that since 1961, three-quarters of the states had repealed their
criminal sodomy laws, “based on a recognition that it’s not consistent
with our basic American values about the relationship between the individual
and the state.”
“Well, it depends on what you mean by basic American
values,” Justice Scalia fired back, asserting that just because the states
may at one time have had laws against flagpole sitting, it didn’t follow
that flagpole sitting should be considered a fundamental right.
Smith anticipated the objection and punched a gaping
whole in Scalia’s line of argument. “The court’s decisions don’t look
just at history,” he said, “ they look at the function that a particular
claimed freedom plays in the lives of real people.”
Asked by Scalia how the court should identify such a
claimed freedom, Smith said the court had already answered that question.
“The court has said that it’s going to use reasoned judgement to identify
a realm that involves matters central and core to how a person defines their
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