Last edited: February 14, 2005

Justices Grill Attorneys in Sodomy Case

The 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 He noted that since 1961, three-quarters of the states had repealed their criminal sodomy laws, “based on a recognition that it’s not consistent with our basic American values about the relationship between the individual and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 own lives.”

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